Period of detention spent in jail will be set off
So far as section 428 of Code is concerned, it provides that the period of detention spent in jail as under-trial or as convict will be set off against his total jail sentence once awarded to him in connection with the same offence.
This court (Three-Judge Bench) had the occasion to interpret section 428 of the Code in the case of State of Maharashtra and another v. Najakat Alla Mubarak Ali, wherein this Court speaking through Justice K.T. Thomas represting majority view held as under :
“15……. We may now decipher the two requisites postulated in section 428 of the Code :
(1)During the stage of investigation, enquiry or trail of a particular case the prisoner should have been in jail at least for a certain period.
(2)He should have been sentenced to a term of imprisonment in that case.
16. If the above two conditions are satisfied then the operative part of the provision comes into play i.e., if the sentence of imprisonment awarded is longer than the period of detention undergone by him during the stages of investigation, enquiry or trial, the convicted person need undergo only the balance period of imprisonment after deducting the earlier period from the total period of imprisonment awarded. The words “if any” in the section amplify that if there is no balance period left after such deduction the convict will be entitled to be set free from jail, unless he is required in any other case. In other words, if the convict was in prison, for whatever reason, during the stages of investigation, enquiry or trial of a particular case and was later convicted and sentenced to any term of imprisonment in that case the earlier period of detention undergone by him should be counted as part of the sentence imposed on him.”
Hon’ble R.K. Agrawal and A.M. Sapre, JJ., have held that in our considered opinion, the High Court was, therefore, not right in setting aside the entire jail sentence of respondent No. 1 while upholding his conviction under section 325, I.P.C. The High Court, in our view, ought to have either upheld the award of jail sentence of four years awarded by the Sessions Court or reduce the jail sentence to any reasonable term but it had no jurisdiction to fully set aside the jail sentence and substitute it by imposing only fine of Rs. 10,000/-
As rightly argued by the learned Counsel for respondent No. 1, the period already undergone by respondent No. 1 (40 days) while respondent No. 1 was in detention, as under-trial and as convict, was also a jail sentence and could be treated as jail sentence once awarded to respondent No. 1 under section 325, I.P.C., and accordingly its benefit by way of set off could be given to him under section 428 of Code.
In our considered opinion, having regard to the time consumed in the litigation (37 years) coupled with the findings of two Courts below wherein it was held that respondent No. 1 did not cause any injury to the deceased and injured Baij Nath (P.W. 2), we are inclined to uphold respondent No. 1’s conviction under section 325, I.P.C. and award to respondent No. 1’s punishment of imprisonment of 40 days with fine of Rs. 10,000/- and in default of payment of fine, to undergo one month rigorous imprisonment.
Since respondent No. 1 had already undergone the jail sentence of 40 days partly as under-trial and partly as convict, he is not required to undergo any further jail sentence in the case at hand.
State of Uttar Pradesh v. Tribhuwan, 2017 (180) AIC 1 SC.
Appellate Court fully empowered to review
This Court while reflecting on the scope of the power of the High Court under section 378 of the Code of Criminal Procedure, 1973 (for short hereafter referred to as the “Code) in dealing with an order of acquittal referred amongst others to an extract from its earlier verdict in Murugesan and others v. State.
In the above overwhelming factual premise, this Court concluded that the finding of innocence recorded by Trial Court was a reasonably possible view taken on the basis of the evidence and material on record and thus the High Court ought not to have disturbed the same even if, on a re-appreciation of the evidence it was inclined to take a different view. This Court reiterated the oft quoted fundamental proposition that so long the view taken by the Trial Court in awarding acquittal on a criminal charge was a possible one, the exercise of the appellate power of the High Court under section 378 of the Code would remain circumscribed by the well-settled parameters noticed hereinabove. The conviction of the appellant was set aside in the attendant facts and circumstances and his acquittal was restored.
Hon’ble N.V. Ramana and Amitava Roy, JJ., have held that the elaboration of the facts in the decision cited at the Bar has been to underline the factual setting in which reversal of the orders of acquittal had been interfered with by this Court. Though It is no longer res integra that an order of acquittal, if appealed against, ought not to be lightly interfered with, it is trite as well that the Appellate Court is fully empowered to review, re-appreciate and reconsider the evidence on record and to reach its own conclusions both on questions of fact and on law. As a corollary, the Appellate Court would be within its jurisdiction and authority to dislodge an acquittal on sound, cogent and persuasive reasons based on the recorded facts and the law applicable. If only when the view taken by the Trial Court in ordering acquittal is an equally plausible and reasonable one that the Appellate Court would not readily substitute the same by another view available to it, on its independent appraisal of the materials on record. This legally acknowledged restraint on the power of the Appellate Court would get attracted only if the two views are equally plausible and reasonable and not otherwise. If the view taken by the Trial Court is a plausible but not a reasonable one when tested on the evidence on record and the legal principles applied, unquestionably it can and ought to be displaced by a plausible and reasonable view by the Appellate Court in furtherance of the ultimate cause of justice. Though no innocent ought not to be punished, it is equality imperative that a guilty ought not be let off casually lest justice is a casualty.
In our estimate, having regard to the quality of evidence on record as a whole and in particular on the aspect of identification, the view taken by the Trial Court being convincingly reasonable is acceptable in comparison to one adopted by the High Court.
The High Court in the attendant facts and circumstances, in our determination, erred in upturning the findings recorded by the Trial Court. The impugned judgment and order is thus set aside and the acquittal of the appellant is restored. This Court shares the concern expressed by the Trial Court on the shoddy investigation conducted in the case, having regard in particular to the seriousness of the offence involved and reiterate the direction issued by it to the Superintendent of Police, Kullu to enquire into the matter to ascertain the reason for the omission/lapses in the investigation, identify the person (s) responsible therefor and the action taken in connection therewith so as to ensure Court within a period of three months herefrom. The appeal is allowed.
Khekh Ram v. State of Himachal Pradesh, 2017 (180) AIC 7 SC.