Bhimanna vs State of Karnataka

N. Ananda, J.—The learned High Court Government Pleader, Sri Bab Shetty, is directed to take notice for the Respondent.

Though the matter is listed for admission, it is taken up for final disposal with the consent of learned Counsel.

The Petitioner was convicted for an offence punishable u/s 409 of I.P.C. and he was sentenced to undergo rigorous imprisonment for one year and pay fine of Rs. 1,000/- in default to undergo simple imprisonment for one month. The Petitioner was before the learned Principal Sessions Judge in Crl. A. No. 26/2005. The learned Sessions Judge by the impugned judgment has confirmed the judgment of Trial Court.

After going through the impugned judgment. I find the entire judgment consists of eight paragraphs. Paras-1 to 3 refer to narration of prosecution case and points for determination. Para-4 refers to the grounds urged in the memorandum of appeal. In para-5, the learned Sessions Judge without referring to the charge framed against the accused and the evidence adduced by prosecution has narrated certain facts as if they were admitted facts. Para-6 would also refer to certain facts, which according to learned Sessions Judge have not been disputed by either parties. Para 7 refers to the judgment of the Trial Court. Para-8 refers to the sentence passed by the Trial Court.

When an appeal is filed against the conviction, the 1st Appellate Court shall have de novo approach to evidence adduced by prosecution. Though as many as 13 witnesses were examined and 26 documents were marked, the learned Sessions Judge has not referred to the evidence of any of witnesses or contents of any one of documents. Therefore, I am of the opinion that the learned Trial Judge has abdicated duties of 1st Appellate Judge. Therefore, the impugned judgment cannot be sustained and requires reconsideration. The impugned judgment is not in conformity with the provisions of Section 354 of Code of Criminal Procedure In a decision reported in Padam Singh Vs. State of U.P., the Supreme Court has held that it is duty of an Appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even it can be relied upon then whether the prosecution can be said to have proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by Appellate Court in drawing inference from proved and admitted facts.

In the case on hand, the learned Appellate Judge has not referred to evidence of any of the witnesses, though as many as 13 witnesses were examined for the prosecution and has not referred to a single document though as many as 23 documents were produced by the prosecution. In view of this, the impugned judgments set aside and the matter is remitted to First Appellate Court for reconsideration of appeal in the light of observations made herein and in accordance with law.

Accordingly criminal revision petition is disposed off.