T.C. Raghavan, J.
1. The appeal is by the 1st accused in S. C No. 47 of 1960 on the file of the Sessions Court of Trivandrurn. There were two accused persons in 'the case, the 1st accused being the younger brother and the 2nd accused the elder. The 1st accused was charged Under Sections 302 and 324 and. was also charged Under Section 324 read with Section 34 of the Penal Code. The 2nd accused was charged Under Section 324 and Sections 324 and 302 read with Section 34. The prosecution version of the case was briefly as follows :
2. The deceased Parameswaran alias Pramu or Paramu Contractor and Pw. 1 were, living as husband and wife for the past 8 years and they had on : son aged 41 years by this connection. Pw. I had her first husband, who deserted her about 11 years ago and she had three children by the marriage, Pws. 2 and 8 being two of them. Paramu started visiting her as her second husband. About two weeks prior to the date of occurrence, Paramu was alleged to have seen the 1st accused cominn out of the house of Pw. 1 and to have suspoctixf that the 1st accused was on. intimate terms with Pw. 1. The 1st accused took to his heeds 01 sight of Paramu and Paramu chased and caught him, brought him before Pw. 1 and beat him Ii her presence. Thereafter, in the presence of Pw. 4, who is a neighbour, Paramu entrusted Pw. 1 to the 1st accused under the place in an angry mood. After his Paratnu stopped visiting Pw. 1.
It was further alleged by the prosecution that there were reports that Paramu and the 1st accused quarrelled at Sinkarathoppu and the 1st accused was having a grudge therefor and Hi.-two accused persons decided to retaliate. On the date of occurrence, that is on 13-b September 1980, Paramu came to his paddy land near the house of Pw. 1 and Pw. 1, on seeing him went to him with her youngest son.' It was about 6.30 p.m. in the evening. She stood, facing south in front of Paramu on a bund of a small channel flowing north to south and asked him to give her and her son, maintenance. Paramu agreed to do it. They went on talking for about 20 minutes, when Pw. 6, the sister of the accused persons againt' this, went and informed the accused persons, who were then near a reading room on the road south of the scene of occurrence. P.W. 7 was alleged to have been present at that place when Pw. 6 went and told the accused persons
The accused persons then came to their house, which is. a little south of the, scene of occurrence, and from there went to the scane. The 1st accused was armed with a cutting knife and the 2nd accused had a drawn pen-knife, M. O. 1. The 1st accused approached Paramu from the south along the bund and the 2nd accused came through the compound on the west. On their coming near, Paramu tried to run away, when the 1st accused reached- him and inflated a stab injury on the right side of his back saying 'stop there; are you the one to question me?' Paramu moved forward and stepped down into the filed and fell down. When he tried to get up propping himself on, his left hand, tine 1st accused aimed another cut, which Paramu warded off with his right hand, whereby he Hot injured on his right arm. Paramu had a stick with which h- aimed a blow at the 1st accused. By that time the 2nd accused approached Paramu and so tie blow fell on the 2nd accused, Pw. 1 then tried to pull back th0 2nd accused by catching his 1 ft hand when he stabbed her thrice causing threa injuries on her right fore-arm, Pw. 2, the thirteen year old daughter of Pw. 1, came there and, s'i9 threw mud at the assailants. Paramu, in the meantime got up and ran northwards, when the accused persons also left the place. By that time Pw. 8, the son of Pw. 1, also came to the scene and ho took Pw. 1 away. Pws. 1 and 8 then started to go to the police station and also to Met medical aid. When they reached the and, they found Paramu lying there, when a car passed that way. The car was stopped and both Paramu and Pw. 1 were taken. In the car to the police station where Pw. 15, the constable in charge of the police station, made an entry is the general diary and sent them to the Central Hospital, as the condition of Paramu was serious.
A little thereafter, Pw. 15 went to the hospital and recorded Ext. pi the. first information statement, from Pw. 1 at 8-15 p.m. as Paramu Was not then in a position to talk. Mahazars were prepared regarding the persons of Pw. I and Paramu and the blood stained clothes worn by Paramu were also recovered. Pw. 15 thereafter came back to the police station and registered a case Under Section 324 read with Section 34, Penal Code, A little later the 2nd accused crime to the station and gave information that he was arrest whereupon another case was registered against Paramu Pw. 1 and Pw. 8. Three days thereafter, that is n i6th September, i960, at 5-25 p.m. Paramu died. The 2nd accused1 was also admitted and treated in the hospital and was dishcarged on 21st September 1960 when he was arrested. After his arrest he was alleged to have pointed out M. O. 1 the knife, said to have been used by him and this was recovered. After the preliminary enquiry, the case was committed to the Sessions.
3. The case of the accused persons was that there was no motive or prior incident as alleged by the prosecution. On the day of occurrence Paramu and one Appu came to the Holds of Paramu, where the 2nd aocused met them.
The 2nd accused questioned Paramu why he was spreading scandals about his brother, the 1st accused, whereupon paramu and Appu beat him. Then he took out his knife and waved it to save himself. Thereafter, he fell down unconscious and did not know what followed. According to the 1st accused, he cams to the scene, on seeing his brother being attacked by Paramu and Appu. He was also beaten by Paramu and Appu when he ran away to his house and some time thereafter the 2nd accused also came there.
4. The learned Sessions Judge acquitted the 2nd accused holding that there was no conclusive proof regarding the commission of any offence by him. On the other hand, he convicted the 1st accused of culpable homicide not amounting to murder Under Section 304 and sentenced him to rigorous imprisonment for 5 years. The appeal is by the 1st accused against the said conviction and sentence.
5. When the appeal came up for hearing before one of us, notice was issued to the 1st accused to show cause why he should not be convicted Under Section 302, Penal Code. After notice the appeal came up again before a Division Bench, when the Court issued another notice to the 2:id accused, to show cause why the order of a qui-Ca in his favour should not be set aside, After the 2nd notice the appeal has now come before us final hearing.
6. On. the merits of the appeal the learned Advocate of the 1st accused contends that every on the evidence of Pw. 1 the case put forward by the accused persons should have been accepted by the lower court and in this connection h:: invites our attention to the evidence of Pw. 1. There are certain answers in her deposition, which indicate that Appu mentioned by the accused persons was present at the scene. The learned advocate further contends that since the witness was not treated as hostile and cross-examined by the prosecution, her evidence should b? given its due weight and the benefit of evidence should be given to the 1st accused.
We are, not impressed by this connection becaus6 there is the evidence of an independent witness namely, Pw. 3 who speaks to the main incident as alleged by the prosecution. Nothing appears to have been brought out in his crosi-examination to discredit his testimony. The only attempt by the defence to discredit him was to show that he, was worknig under Paramu and the was not successfully established. Therefore, the evidence of Pw. 3 has to be accepted. The evidence of Pw. 2, the daughter of Pw. 1, is attacked as tutored and artificial because she h-s given several details, which make her evidence appear too good to believe. This contention also do: s not impress us. Merely because Pw. 2 is a child witness (be it noted that she is thirteen) because she gives cogent evidence, it cannot be presumed that she is a tutored witness- Regarding Pw. 1, it is in evidence that she and the It aceuseel were on intimate terms. Now that Paramus is dead, we can realise her inclination to favour the 1st accused with whom she was On intimate terms and hence those answers In her cross-examination which have been pointed out by the learned advocate of the appellant, are not to be very seriously considered. Therefore, regarding the conviction and sentence of the 1st accused, we are satisfied there are no medts in the appeal.
7. But there is the further question regarding the offence, for which the learned Sessions Judge found him guilty and convicted him. The learned Judge says :
Considering all the circumstances of the case, it cannot be presumed that accused 1 had intention of causing death of Pararmi by inflicting that stab injury, but he did cause injury which the sufficient in the ordinary course to cause the death of Paramu, perhaps being provoked or exercising in good faith in the right of defence, as contemplated in Exceptions 2 and 4 of Section 300, or even Exception 1. It follows, therefore, that accused 1 has committed culpable homicide, punishable Under Section 304 later part only, and not an offence punishable Under Section 302 IPC.
The medical evidence in the case discloses that the first injury inflicted by the 1st accused was an oblique incised injury 1 '' x 4' on the back I'1 above and 1' inner to the medial angle of the right scapula direct and, downwards and medially penetrating into the chest cavity. This is disclosed by Ext. P7 the wound certificate. Ext. P9, the post mortem certificate, discloses an incised wound l'x1/2' on the parietal pleura of the right posterior thoracic wall in the second intercostal space IW outer to the midline which was seen communicating with the external injury mentioned in Ext. ff. The doctor, Pw. 11, has given evidence that Paramu ultimately died as a result of a second haemorrhage, which was caused because the injured lung was constantly expanding and contracting. According to the doctor the second haemorrhage could: not have been the result of any negligence or restlessness.
In the face of this medical evidence and the other prosecution evidence in the case, we fail to see how the learned Sessions Judge came to the conclusion that the offence fell Under Section 304 of the Penal Code. Strangely enough, from the passage hereinbefore extracted from the judgment of the learned Sessions Judge, it appears that the learned Judge himself was not sure under which of the Exceptions the estse would come. In the above circumstances, we are constrained to think that the conviction should have been Under Section 302, Indian Penal Code. Similarly we are also not satisfied as to how the learned Sessions Judge found the 2nd accused not guilty of the charge Under Section 324, Penal Code, nor has the learned advocate of the 2nd accused convinced us that the order of acquittal was right.
8. This leads us an important question regarding our powers to alter the conviction and sentence Under Section 304 to one Under Section 302 and also our powers to alter the order of acquittal into one of the conviction without an appeal by the State. Be it noted that in this case there is no appeal by the State either against the 1st accused seeking a conviction Under Section 302 or against the 2nd accused seeking a conviction Under Section 324.
9. On this question there are several decisions taking a broad view in favour of interpreting Sections 423 and 439 of the Code of Criminal Procedure as vesting powers on the appellant Court to reverse a finding of acquittal in cases, where the accused has been convicted of another offence against which he has appealed. The less broad or the restricted view taken in other decisions, is for interprating Section 423 as empowering the appellate Court in an appeal from a conviction to re-open only the case regarding the charge ond which the accused has been convicted and for ( holding that there is no justification in thinking that an appeal on a conviction reopens the whole case, that is, even regarding the case which lias ended in the acquittal of the accused, against which there has been no appeal by the State. These two views have been considered at length by a recent Full Bench decision of the Andhra Pradesh High Court in Narayana v. State of Andhra Pradesh : AIR1960AP1 and Jaganmohan Reddy J., who delivered the judgment of the Court, accepted the restricted or less broad view. We propose to consider the question, on the wording of these sections, resorting to decide cases only on points of doubt.
10. Section 423(1)(b), Criminal Procedure Code, enacts that the appellate Court may in an appeal from a conviction (1) reverse the finding and sentence and acquit or discharge that accused, or order him to be retried or committed for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the-finding, reduce the sentence, or (3) with or without such alteration of finding and reduction of sentence, alter the nature of the sentence, but not so as to enhance the same. Clause (a) of Section 423(1) separately provides for cases of appeal from orders of acquittal and therein the appellate Court may reverse such orders of acquittal and direct that further enquiry bo made, Or that the accused be retried or committed for trial or find him guilty and pass sentence on him according to law. The aforesaid two provisions, we mean clauses (a) and (b) of Section 423(1), separately lay down the powers of an appellate Court in an appeal from an order of acquittal and in an appeal from a conviction respectively. In the former ease the appellate Court may reverse such order of acquittal and direct any one of the following: (1) a further enquiry, (2) a retrial, (3) a committal for trial, or (4) finding him guilty and sentencing him. Under this sub-clause the order of acquittal is reversed, which means wiped out and replaced by an order for retrial or by an order of conviction and .sentence.
Analysing the provisions in Sub-section (b) of Section 423(1) what we find is this. The appellate Court may (1) reverse the finding and sentence, which means again wipe out the finding and sentence, and acquit or discharge the accused or order a retrial or a committal for trial; (2) alter the finding, which means substitute or change the finding recorded by the lower Court, with or into, some other finding, and maintain the sentence, or altering or without altering the finding of the lower Court reduce the sentence; and (3) with Or without such alteration of the finding or reduction of sentence, change the nature of the sentence, not so as to enhance the .same- Now we would scrutinise this latter provision a little closer. In an. appeal from a conviction the appellate Court way either acquit or discharge the accused or order him to fast retried or committed for trial. In such a case the finding and sentence of the lower Court are reversed or wiped out and replaced by the order of acquittal, discharge retrial or committal for trial. The appellate Court may also alter or substitute the finding of the lower Court in such a way as to maintain the sentence or to reduce it. It can further change the nature o1 the sentence with or without any alteration of the finding or reduction of the sentence and this alteration of the nature of the sentence should not be done so as to enhance the same. This provision, be it noted, applies to all appellate courts including the High Court, so that the appellate Court including the High Court cannot so alter the finding of the lower Court as to necessitate the enhancement of the sentence. Sub-section (1-A) of Section 423 provides specially that in the case of an appeal to the High Court from a conviction, the High Court may enhance the sentence' provided that such enhancement shall not be done without the accused having been given an opportunity of showing cause against the enhancement. In this connection it may also be noted that by virtue of Section 417 of the: Code the provisions of Section 423(1)(a) also apply only to the High Court.
11. The aforesaid scrutiny of Section 423(1)(b) brings into relief the implication of 'altering' the finding under Sub-clause (a) thereof. The 'alteration'1 can be either way; that is, it may be an alteration of the finding of the lower Court into one of a lesser offence or into one of a more serious or higher offence. The question for consideration is whether the appellate Court has the power of altering the finding into one of conviction for a higher offence as, in the present case, of altering a conviction Under Section Won 304 into one for a higher offence Under Section 302 of the Penal Code.
12. In this connection it will be interesting to note the method of approach of those Courts which have taken the broader view. The of reasoning in those decisions' is that the appellate Court has the power to alter the conviction even into one of a higher or more serious nature, because the word used is 'alter1', though Under Section 423(1)(2) the appellate Court has no power to enhance the- sentence even on such 'alteration'. The reasoning at this stage seeks support from Section 439(1) of the Cod' of Criminal Procedure. Under the latter Section the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by Section 423 etc., and may also enhance the sentence. Put Sub-section 4 of this Section lays down that nothing in this Section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. Therefore, Under Section 439(1) the High Court has the power to enhance the sentence. At th6 same time under Sub-section (4 of the same Section the High Court has no power to convert a finding of acquittal into one Of conviction. If we may repeat the reasoning of the decision taking the broader view, it runs, thus. Under Section 423(1)(b)(2) the appellate Court may 'alter'' the conviction even into One for a more serious offence; and at that stage or after that, if it becomes necessary, as: in the present case to enhance the sentence as a consequence of such alteration, such enhancement could be made Under Section 439(1).
13. This reasoning, if we may say so with.' respect, loses sight of the effect of a conviction for a lesser offence, when the charge itself was-for a higher offence. In Kishan Singh v. Emperor A.I.R. 1928 PC 254 Kishan Singh was charged Under Section 302, Penal Code, but was. convicted, of an offence Under Section 304, viz-, culpable homicide not amounting to murder. Be it also noted that the learned Sessions Judge did not record an express finding of acquittal on the charge Under Section 302. In revision by the-State the High Court altered the conviction, Under Section 304 to one Under Section 302 and sentenced the accused to death. In appeal the-Judicial Committee acquitted the accused of murder and restored his conviction for culpable homicide not amounting to murder. Before the Judicial Committee a decision of the Madras High Court in Re Kam'bam Bali Reddy ILR 37 Mad 119 : (A.I.R. 191.4 Mad 258) was cited for the position that Section 439(4) Criminal Procedure Code must be construed as referring to cases where th(, trial had ended in a complete. acquittal. Their Lordships of the Privy Council repelled that contention and Sir Lancelot Sanderson observed that;
If the learned Judges of the High Court of Madras intended to hold that the prohibition in Section 439, Sub-section (4), refers only to a case where the trial has ended in a complete acquittal of the accused in respect of all-charges of offences, and not a case such as the present, where the accused has been acquitted' of the charge of murder, but convicted of the minor offence of culpable homicide not amounting to murder, their Lordships are unable t0 agree with that part of their decision. The words of the sub-section are clear and there can be no doubt as to their meaning. There is no justification for the qualification which the' learned Judges in the cited case attached to the sub-section.
In view of this, it is abundantly clear that in the present case, where the 1st accused was charged Under Section 302, Penal Code, but convicted only Under Section 304 thereof, he was acquitted Under Section 302. The question is whether in revision Under Section 439, when the High Court alters the conviction Under Section 304 into ons Under Section 302, the High Court is converting a finding of acquittal into one of conviction. We would observe that in the light the decision of the Privy Council in Kishan Singh's case A.I.R. 1928 PC 254, it is clear that the High Court is converting an order of acquittal Under Section 302 into one of conviction under the same section. This, we are afraid, the High Court is not competent to do unless it is done by virtue of the powers of the High Court Under Section 423(1)(a), that is, in an appeal against an Order of acquittal. In the present case the State has not chosen to tile an appeal demanding a conviction of the 1st accused, Under Section 302 or of the 2nd accused Under Section 324.
14. Another contention regarding the applicability of the observation of the Privy Council in Kishan Singh's case A.I.R. 1928 PC 354 attempted in some of the cases either before us, may be noted at this stage. It was contended in those cases that the observations of the Council related only to the revisions powers of the High Court and they did not apply to its ell Ate power?. Probing a little deeper into thus contention, we find that the contention expands itself into this. If the is only a revision before the High Court gains) acquittal (may be a calendar revision as in the present case or a revision at the instance of the State of course such a revision by the State is not competent when the Sat- co 'Id have up pealed), then the High Court my not have' the power to convert an and of acquitted to one of conviction. If, on the other hand, there is an appeal by the accused against his contradiction for a smaller offence, as in the present cause Under Section 304, he can be1 convicted a higher offence, say Under Section 302 as al o in the present case, Under Section 423(1)(b)(2), as such conviction is only an alteration of the conviction for the leaser offence into one for a higher offence, and the enhanced pvin'shmont can also be inflicted either Under Section 423(1-A) or Under Section 439(1) of the Code of Criminal Procedure. That, in the nut she is the contention attempted in some of the aforesaid cases.
15. This argument does not appeal for, Under Section 439(1), Criminal Procedure Code. the High Court may exercis0 any of the power? conferred on a Court of appeal by Sections 423, 426 etc., the only qualification being that the High Court may exercise such powers only in its discretion, which means that the revlsional powers Under Section 439(1) are in no way less extensive than its appellate powers, once t. High Court, in its discretion, chooses to extends them and those powers are subject only to the limitations contemplated by the provisions of the other sub-sections of Section 439. Similarly the contention that the High Court may, at any rate, alter the conviction into one for a higher offence? tinder Section 423(1)(b)(2) and enhance the sentence, if necessary, by virtue of its powers Under Section 423(1-A) also fails to appeal.
This contention loses sight of on important fact and that is that Section 423(1)(b) applies to al] appellate Courts and is not confined to the High Court alone, so that the term 'alter' in Section 423(1)(b) cannot mean one thing when it applies to the High Court and a different thing in its application to the other appellate Courts. If this contention is accepted, the term 'alter'1 will mean change into a conviction for a lower or less serious offence in relation to all appellate Courts excepting the High Court and change into a conviction for any offence, even into a conviction for a mare serious or higher offence in its application to the High Court. The effect of Section 423(1-A) is that the High Court may enhance the sentence even if the conviction is not changed, wineries the other appellate Courts have no such power to enhance the sentence Under Section 423(1)(b).
16. The question then arises as to what is the alteration that is contemplated by Section 423(1)(b)(2). Evidently it is only such alteration of the finding of conviction that does not necessitate any enhancement of sentence. That means thy cases contemplated by this provision are only cases falling und-'r Sections 236, 237 and 238 of the Code of Criminal Procedure. The interpretation We have here before given, in our opinion, is a fair and harmo'uons interpretation of Sections 423 and 439 together of the Code of Criminal Procedure.
17. The further question for co satiation is whether we should direct a retrial in this case. This really involves WO questions, namely (1) whether w have the power to order retrial of the accused persons on charges for offences, on which they have been acquitted without any appeal by the Stats against such orders of acquittal and (2) whether in this case there is any necessity for retrial.
18. On the first question the position, that has emerged is this. If there is only an appeal by the accused against his conviction, in such appeal the High Court may order retrial only on a charge for the offence for which he accuse has been convicted and against which he he appealed. The High Court may not set aside the order of acquittal and order material on a charge for that offence, on which he has been acquitted, unless there is an appeal against the order of acquittal. That position is clear from the discussion hereinbefore, contained in this judgment. But the position is different, if there is a revision Under Section 439, suo motu or at the instance of the State. In' that ca e the High Court may exercise all the powers of an appellate Court Under Section 423, which means that the High Court may exercise even the powers conferred on it Under Section 423(1)(a). But this power, we mean the power Under Section 423(1)(a) when sought to be exercised by virtue of the powers conferred on the High Court by Section 423(1) must be exercised subject to the provisions of Sub-sections 2 and 4 of Section 439. The result is that the High Court may exercise all the powers conferred on it by Section 423(1)(a) namely the powers that the High Court my exercise in hearing an appeal against acquittal, subject to the restriction imposed by Sub-sections 2 and 4 of Section 439. That means that the accused should have been given an Opportunity of being heard and that the High Court may not convert a finding of acquittal Into one of conviction. Therefore, th6 High Court has the power to order retrial., in appropria1e cases, in the interests of justice, in exercise of its powers Under Section 439, Criminal Procedure Code, after giving the accused an opportunity of I being heard.
19. On, the second question Mr. N. K. Sukumaran the learned advocate of the 1st appellant contends that this Court may order retrial only in cases where retrial is the proper remedy. The contention of the learned Counsel is that such retrial can be ordered only in cases, where the lower Court has refused to exercise jurisdiction or where, in the exercise of its jurisdiction, it has committed1 any illegality or irregularity in the procedure and due to such illegality or irregularity in procedure miscarriage of justice has resulted. According to him the need for a retrial may arise, in a case where the subordinate Court has shut material evidence or has admitted inadmissible evidence or has done something which has vitiated the trial. Excepting in such cases, the learned Counsel confens retrial may not be ordered in other cases.
We do not propose to give any final ruling on that question in the present case. In this case, at any rate, we are not inclined to order a retrial, for according to us, there is no such miscarriage of justice as would demand an order for retrial. Further, having considered the evidence in the case and having given expression to our views regarding the manner in which the learned Sessions Judge has considered the case, if we now order retrial it will be, in the words of Patanjali Sastri, J., in Logendra-nath Jha v. Shri Polai Lai Biswas : 2SCR676 , loading the dice against, the appellants and it might prove difficult for the subordinate judicial officer dealing with the case to put aside altogether the views expressed by us in this judgment. Therefore we are not inclined to order retrial.
20. Regarding the sentence, we have a feeling that the sentence awarded by the learned Sessions Judge, even on the basis of his finding, is inadequate. But it has to be noted that no notice) had been issued to the 1st accused to show cause why his sentence Under Section 304 should not be enhanced. Secondly, it cannot be said that the sentence of rigorous imprisonment for 5 years for an offence Under Section 304, Penal Code is so perversely or shockingly low as to call for enhancement at onr hands. Therefore, we would retain the conviction as well as the sentence. The result is that the Criminal Appeal and the Calendar Revision are both dismissed.
21. After this judgment has been prepared, we have come across the decision of the Supreme Court in blue print in State of Andhra Pradesh v. Thadi Narayana Criminal Appeal : 2SCR904 . being the appeal by special leave against the Full Bench decision in : AIR1960AP1 . Their Lordships of the, Supreme Court have accepted the view of the Andhra Pradesh High Court regarding the interpretation of Section 423(1)(b), which view has already found favour with us in this judgment'. But the Supreme Court has left open 'the question about the scope and effect of the provisions of Sections 423 and 439 of the Code read together' on. which also we have pronounced our opinion in, this case.