Appanna vs Pithani Mahalakshmi and Others

The charge against the accused was under Sections 148 and 325, Indian Penal Code. The Magistrate acquitted the accused u/s 148, but

convicted them u/s 325 The accused then appealed to the Sessions Judge who was of opinion that the accused should have been convicted u/s

Indian Penal Code, but thought he could not interfere with be acquittal. Here the Sessions Judge was clearly wrong u/s 423 (6) (2) of the

Code of Criminal Procedure the Appellate Court may alter the finding maintaining the sentence and there is nothing to restrict the finding which may

be altered to a finding of conviction. We agree with the decision in Queen Empress v. Jabanulla ILR 6 (1896) Cal. 975 which cannot, we think,

with respect be distinguished in the manner in which it was sought to be distinguished in Sami Ayya v. Emperor ILR 6 (1903) Mad 478. In the

Calcutta case there was no appeal by Government against the acquittal, but the High Court was dealing with an appeal by the persons who had

been convicted. In Sami Ayya v. Emperor ILR 6 (1903) Mad 478 also there is no reference to the wording of Section 423 (6) (2) Code of

Criminal Procedure (Abhi Misscr v. Lachmi Narain ILR (1900) Cal. 566) upon which the Sessions Judge relies does not seem to us to have any

bearing as it proceeded on the view taken by the learned Judges of the facts. If the Sessions Judge finds"" the accused guilty of noting, he may then

consider whether by virtue of Section 149 Indian Penal Code the eviction u/s 325, Indian Penal Code, may or may not be sustainable We

therefore set aside the acquittal and direct the re-hearing of the appeal.