Appellate Court Should Separately Hear Convict On Quantum Of Sentence When Acquittal Is Reversed : Supreme Court

The Supreme Court recently set aside the conviction and order of sentence imposed on two accused persons, passed by Karnataka High Court in a murder case, on the ground that the accused persons were not given an opportunity to be heard on the quantum of sentence as prescribed under Section 235(2) of CrPC.

The principle of according opportunity of hearing to the convict before sentencing him is equally applicable where the sentencing is done by the appellate court, the Court stated.

The division bench of Justice V. Ramasubramanian and Justice Pankaj Mithal noted:

“In the case at hand, the trial court had acquitted A1 and A3 but they were convicted by the appellate court. Therefore, the appellate court was obliged under law to hear them on the quantum of sentence In accordance with the mandate of sub- Section (2) of Section 235 of CrPC before pronouncing any sentence against them. The appellate court has ex-facie failed to follow the said procedure.”

An FIR was registered against eleven accused persons in 1999 for the offences under under Sections 143, 147, 148, 323, 324, 307, 302 and 149 of IPC.

The Trial Court acquitted all the eleven accused persons for the offences under the said provisions. However, the High Court upheld the acquittal of nine accused persons except for the present appellants.

The High Court vide impugned judgment and order dated June 28, 2008 convicted and sentenced the present appellants under Section 302/34, Section 326/34, and sentenced them to life imprisonment and imprisonment for five years respectively.

Aggrieved by the conviction, the appellants filed the present appeal before the Supreme Court.

The appellants contended that in a case of acquittal of all accused by the trial court, the High Court ought not to have overturned the acquittal of any of the accused persons until and unless there was any perversity in appreciating the evidence by the trial court.

It was further submitted that the High Court did not give an opportunity of hearing to the appellants on the quantum of punishment before sentencing them to life imprisonment and imprisonment for five years for offences under Sections 302 and 326 of IPC respectively.

The Supreme Court observed:

“the appellate court has to bear in mind that in case of acquittal there is double presumption of innocence in favour of the accused. First, the presumption of innocence is available to all accused under the criminal jurisprudence as every person is presumed to be innocent unless proved to be guilty before the competent court of law. Secondly, the accused having secured the acquittal, the presumption of their innocence gets further reinforced and strengthened.”

The Court further opined that the appellate court ought not to lightly interfere with the order of acquittal recorded by the trial court unless there is gross perversity in the appreciation of the evidence and if two views are possible, it should follow the view taken by the trial court rather than choosing the second possible version.

“In view of sub Section (2) of Section 235 of CrPC, the court is obliged to hear the accused persons after their conviction on the quantum of sentence before passing a sentence against them.”, the Court said.

Thus, the Court set aside the impugned judgment and order of the High Court for the abovementioned reasons.

Case Title: Fedrick Cutinha v. State of Karnataka

Citation : 2023 LiveLaw (SC) 326

Code of Criminal Procedure - Section 235(2)- Appellate court reverses acquittal of two accused in murder case- However imposes sentences on them without hearing them on sentence as per Section 235(2)- Supreme Court sets aside the sentence finding it to be ex-facie illegal as accused were not heard-In view of sub Section (2) of Section 235 of CrPC, the court is obliged to hear the accused persons after their conviction on the quantum of sentence before passing a sentence against them-The principle of according opportunity of hearing to the convict before sentencing him is equally applicable where the sentencing is done by the appellate court

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