Narubhai Amarsinh Makwana (Koli Patel) vs State Of Gujarat

Leave granted.

Feeling aggrieved and dissatisfied with the impugned Judgment and Order dated 26.02.2016 passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 3056 of 2008, by which the High Court has partly allowed the said appeal preferred by the appellant­ original accused and has converted the conviction of the appellant­ original accused from Section 302 IPC to Section 304 Part I IPC, the original accused has preferred the present appeal.

While assailing the impugned judgment and order passed by the High Court, the learned counsel appearing on behalf of the appellant­original accused has vehemently submitted that, as such, the High Court has not at all dealt with and/or considered and/or discussed the evidence on record and has confirmed the conviction of the accused. It is vehemently submitted that the appeal before the High Court was the first appeal against the conviction and, as such, being the first appellate Court, the High Court was required to deal with each and every question raised by the appellant­accused. It is submitted that without even considering and/or discussing the evidence on record and without considering the submissions made by the learned advocate appearing on behalf of the accused, the High Court has affirmed the conviction though, however, has modified the conviction from that of Section 302 IPC to Section 304 Part I IPC.

3.1 Learned counsel appearing on behalf of the appellant­original accused has vehemently submitted that except the reasons mentioned in paragraph 5, there is no further discussion by the High Court on merits and/or on the evidence led. It is submitted that, therefore, the impugned judgment and order deserves to be quashed and set aside.

Shri Aniruddha P. Mayee, learned advocate appearing on behalf of the State has tried to support the impugned Judgment and Order passed by the High Court, however, is unable to dispute that while passing the impugned Judgment and Order, the High Court has not at all dealt with and/or considered the merits and has not discussed the evidence at all. Therefore, it is submitted that in that view of the matter, let the matter be remanded to the High Court for a fresh consideration of the appeal on merits.

We have heard the learned counsel appearing on behalf of the respective parties at length. We have also considered the impugned Judgment and Order passed by the High Court. By the impugned Judgment and Order, the High Court has confirmed the conviction of the accused though, however, has converted the conviction from that of Section 302 IPC to Section 304 Part I IPC. Except the discussion in paragraph 5 of the impugned Judgment and Order, there is no consideration at all by the High Court, more particularly, on the evidence. As the First Appellate Court, the High Court was required to consider the entire evidence on merits and the High Court was required to discuss the evidence and even the submissions made by the learned counsel appearing on behalf of the accused on merits. There are no reasons whatsoever given by the High Court while affirming the conviction of the accused. It is required to be noted that the High Court was dealing with an appeal against the conviction under Section 374 of the Cr.P.C. As held by this Court in the case of P. Nagesh v. State of Karnataka (2013) 7 SCC 285, the High Court being the First Appellate Court is required to deal with each and every question raised on behalf of the appellant. In the case of Iqbal Abdul Samiya Malek v. State of Gujarat (2012) 11 SCC 312, it was observed and held that in an appeal against the conviction, the Appellate Court is required to look into the evidence adduced in case to arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon then it must adjudicate whether the prosecution can be said to have proved its case beyond reasonable doubt on the said evidence.

5.1 Applying the law laid down by this Court in the aforesaid two decisions to the facts of the case on hand and on considering the impugned Judgment and Order passed by the High Court, we are of the opinion that the procedure followed by the High Court is not acceptable. The High Court ought not to have disposed of the appeal without examining the evidence on record/merits. Thus, it appears that the High Court has failed to exercise its jurisdiction vested in it properly. Under the circumstances, the impugned Judgment and Order passed by the High Court cannot be sustained and the matter is required to be remitted back to the High Court for consideration afresh, in accordance with law.

In view of the above and for the reasons stated above and without further entering into the merits of the case and/or expressing anything on merits in favour of either of the parties, we set aside the impugned Judgment and Order passed by the High Court and remit the appeal to the High Court for fresh consideration in accordance with law. The appeal is partly allowed to the aforesaid extent.