1. This is a special appeal under Section 25 of the High Court of Judicature Act. Accused Babu and Uttamsingh were convicted under Sections 292 and 385 of the Gwalior Penal Code and sentenced each to 14 years' rigorous imprisonment and a fine of Re. 1/- and 4 years' rigorous imprisonment and a fine of Rs. 100/- respectively. Against that decision the accused filed an appeal for acquittal and the Government filed a revision for enhancement of sentence. A division bench of the High Court dismissing the appeal of the accused, accepted the revision of the Government and enhanced the sentence to life imprisonment and a fine of Re. 1/- each under Section 292 of the Gwalior Penal Code. Against that decision the accused have filed this appeal.
2. The first contention raised by the learned Counsel for the appellants is that the High Court erred in law in enhancing the sentence to life imprisonment which the Sessions Judge was not competent to pass. This argument is advanced on the analogy of Sub-section 3 of Section 439 of the Criminal Procedure Code. This Sub-section says that where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under Section 34 the Court shall not influx a greater punishment for the offence which in the opinion of such Court the accused has committed, than might have been inflicted for such offence by a Presidency Magistrate or a Magistrate of the first class. This argument has no force. The Sub-section clearly precludes the High Court to pass a greater sentence than the Magistrate of the First Class can pass only in a case when the sentence is passed by a Magistrate. But it makes no mention with regard to the sentence passed by a Sessions Judge. There is no reason therefore, to extend the scope of this Sub-section to include the sentence passed by Sessions Judges. Nor has any authority been cited in support of such a proposition. On the contrary the learned Dy. Government Advocate cited two decisions Raja Ram v. Emperor AIR (22) 1935 Oudh 23D and Emperor v. Ram Nath AIR (22) 1935 All 989, to show that the sentence passed by the assistant Sessions Judge can be enhanced by the High Court and that this Sub-section is not attracted in a case where the sentence is not passed by a Magistrate. This contention, therefore, cannot be accepted.
3. The second contention raised by the appellants is that the first information report was not legally proved. This contention also has no force. It is no doubt true that a copy of the first information report was submitted in the Court. But it appears from the record that during the course of the trial original first information report was produced and the contents of the first information report were put to witness Krishna, P.W. 1, who admitted them. Hence this contention has no sub-stance.
4. The other contentions raised by the learned Counsel for the appellants all relate to the appreciation of evidence. I am of opinion that as a general rule this Court cannot go into the question of evidence. The right of special appeal under Section 25 of the High Court Act was provided when the Judicial Committee was abolished. The fact that Section 25 was repealed when the new Constitution of India came into force and this High Court became amenable to the Supreme Court, leads to the same conclusion, namely that the right of special appeal was given in lieu of the right to appeal to the Judicial Committee. Hence this Court when exercising the powers under Section 25 of the High Court Act can interfere with the decision of the lower Court only when substantial and grave injustice has been done. In this connection the observations made by the Supreme Court in Pitam Singh v. State AIR (37) 1950 SC 169, are particularly noteworthy. Their Lordships observed as follows:
The obvious reply to all these arguments advanced by the learned Counsel for the appellants, is that this Court is not an ordinary Court of criminal appeal and will not, generally speaking allow facts to be re-opened, especially when the two Courts agree in their conclusions in regard to them and when the conclusions of fact which are challenged are dependant on the credibility of witnesses who have been believed by the trial Court which had the advantage of seeing them and hearing their evidence. In the present case the story of the prosecution, which is neither incredible nor improbable, is supported by not less than five witnesses including the mother of the deceased, and their evidence in spite of its infirmities has impressed four assessors and the two Courts below, who, in appraising its reliability, have given due weight to certain features of the case which, according to them, negative the theory of conspiracy or concoction. In these circumstances, it will be opposed to all principles and precedents if we were to constitute ourselves into a third Court of fact and, after re-weighing the evidence come to a conclusion different from that arrived at by the trial Judge and the High Court.
As no question of substantial and grave injustice is involved in this case, no interference is called for in the concurrent finding of conviction of the lower Courts. Prom the evidence of Nandkishore and Laxminarayan it is proved that the accused have produced Rs. 1,150/-, a gun and a ring. The deceased, when he was set upon, had a gun in his hand and a ring on his finger. Both the ring and the gun have been identified by his father P.W. 2 Lotaram and P.W. 3, Manju Lal, who was the Munim of the deceased. Prom the evidence of Nandkishore it is proved that on the information supplied by the accused the coat, which the deceased was wearing, was recovered. The coat also has been identified by P.W. 2 and P.W. 3. In these circumstances, there is no substance in this appeal and hence it must fail.
5. The appeal is accordingly dismissed.
6. I agree.
7. I agree.