The Supreme Court in the case Fedrick Cutinha v. State of Karnataka observed and has set aside the conviction made and the order of sentence being imposed on two accused persons passed in the murder case by the Karnataka High Court, on the ground that the accused person was not given any opportunity to be heard on the quantum of sentence as stated under section 235(2) of Code of Criminal Procedure, 1973.
The court in the case observed and has stated that the principle of according opportunity of hearing to the convict before sentencing the convict is equally being applicable where the sentencing is being done in the case by the appellate court.
The division bench comprising of Justice V. Ramasubramanian and Justice Pankaj Mithal in the case observed and has noted that the trial court had acquitted A1 and A3 but they were being convicted by the appellate court. Therefore, the appellate court in the case was being obliged as it is stated under law to hear them on the quantum of sentence In accordance with the mandate as stated under sub- Section (2) of Section 235 of Code of Criminal Procedure, 1973 before pronouncing of any sentence against them. Thus, the appellate court in the case has ex-facie failed in order to follow the said procedure.
In the present case, the FIR was being registered against eleven accused persons in the year 1999 for the offences as it is stated under Section 143, Section 147, Section 148, Section 323, Section 324, Section 307, Section 302 and Section 149 of the Indian Penal Code, 1860.
However, the Trial Court acquitted all the eleven accused persons for the offences as stated under the said provisions. Therefore, it has also been upheld by the High Court that the acquittal of nine accused persons except those for the present appellants.
In the present case, the High Court vide impugned judgment and order dated 28.06.2008 sentenced and has convicted the present appellants as stated under Section 302, Section 32, section 326, section 34 and has sentenced the convict to life imprisonment and imprisonment for the term of five years respectively.
The appellant aggrieved with the said conviction filed an appeal before the Supreme Court.
In the present case, the appellant contended that the same being the case of acquittal of all accused by the trial court, thus, the High Court ought not to have overturned the acquittal of any of the accused persons until and unless there being any perversity in appreciating the evidence by the trial court.
Further, it has also been submitted by the High Court that it did not give an opportunity of hearing to the appellants which being on the quantum of punishment before sentencing them to life imprisonment and imprisonment for five years for offences as stated under section 302 and section 326 of Indian Penal Code, 1860 respectively.
The court in the case observed and has opined that the appellate court ought not to lightly interfere with the order of acquittal as it is recorded by the trial court unless there being gross perversity in the appreciation of the evidence and if two views are being possible, the court showed the view taken by the trial court rather than choosing of the second possible version.
Accordingly, the court set aside the order of the High Court and the impugned judgment.
