High Court Can Acquit A Convict Even In Absence Of Appeal To Prevent Continuity Of Manifest Injustice: Orissa High Court

The Orissa High Court has held that even if a person, who was convicted by trial court, does not prefer appeal against his conviction and sentence, the High Court can still invoke its inherent power under Section 482 and 401 of the Code of the Criminal Procedure to acquit him of charges which cannot be sustained against him on the basis of available evidence.

While acquitting a non-appealing murder convict, a Division Bench of Justice Debabrata Dash and Justice Sanjeeb Kumar Panigrahi observed,

“…while dealing with a Criminal Appeal filed by only one of the convicts if the Court finds that there is no evidence worth the name to sustain the conviction of not only the accused, who has filed the Appeal but also the other accused, who has not appealed, the power of this Court in view of the provisions contained in sections 401 & 482 of the Cr.P.C. can well be exercised in certain eventuality to aside the conviction and sentence passed on the other accused, who has not appealed so as to see that manifest injustice may not be continued to be perpetrated for merely non filing of the Appeal by the co-convict.”

The appellant Shiva @ Gurucharan Singh faced trial with another accused Duna Singh @ Dinosar and two others namely Beta and Dasmat Marndi in a case under Sections 302/120(B)/34 of the Indian Penal Code. He as well as accused Duna Singh @ Dinosar were convicted for commission of offence under Sections 302/34 of IPC and Section 120(B) of IPC and sentenced thereunder, while the other two were acquitted of the charges.

Being aggrieved by the judgment of conviction and sentence, Shiva @ Gurucharan Singh filed the instant appeal before the High Court. However, the other convict, i.e. Duna Singh @ Dinosar did not prefer any appeal.

Court’s Findings

The division bench said that the finding of the Trial Court that the prosecution has established the charges against the appellant beyond all reasonable doubts by leading clear, cogent and acceptable evidence is not sustainable and, therefore, the judgment of conviction and the order of sentence as against accused-appellant Shiva @ Gurucharan Singh are liable to be set aside.

However, the court also noted that the appeal was preferred only by one out of the two accused persons, who have been convicted by the Trial Court. Therefore, the moot question that arose for consideration as to what shall be the fate of the non-appealing accused when his co-accused (the appellant) is acquitted of the charges as the prosecution failed to establish its case beyond all reasonable doubts.

The court placed reliance on the decision of the Calcutta High Court in Parbati Devi v. The State, wherein two persons were convicted under Section 120B read with section 366 of the IPC. One of them appealed against the judgment of conviction and order of sentence. The court held that there was absolutely no evidence to sustain the conviction of the appellant-accused or other non-appellant-accused. Thus, the court invoked its inherent jurisdiction to acquit the non-appellant accused along with the appellant.

In Hari Nath & Anr. v. State of U.P., the Apex Court, while setting aside the judgment of conviction and order of sentence passed against the appealing accused, who was convicted under Section 396 of the IPC and sentenced thereunder, also set aside the conviction and order of sentence passed against the non-appealing accused holding that the same cannot be sustained as the findings are inter-dependent and inextricably integrated.

A similar decision was taken by the Supreme Court also in Nirmal Pasi & Anr. v. State of Bihar.

Keeping in view the aforesaid position of law, the court concluded that the judgment of conviction and order of sentence passed by the Trial Court against Accused Duna @ Dinosar are liable to be set aside even though he has not appealed and the court can invoke its power under Section 401 and 482, CrPC to facilitate the same.

Accordingly, convictions and sentences imposed upon both the appealing as well as non-appealing accused were set aside.

Case Title: Shiva @ Gurucharan Singh v. State of Odisha

Case No.: CRLA No. 213 of 2023

Date of Judgment: May 05, 2023

Counsel for the Appellant: Mr. Dipak Ranjan Mishra, Advocate

Counsel for the State: Mr. Saubhagya Ketan Nayak, Addl. Govt. Advocate; Mr. S.S. Mohapatra, Addl Standing Counsel

Citation: 2023 LiveLaw (Ori) 55

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