KANUBHAI BHAGVANBHAI NAYAK versus STATE OF GUJARAT

Citation: [2018] 14 S.C.R. 452 · Decided: 03-12-2018 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Leave granted

Judgment (excerpt)

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452                    SUPREME COURT REPORTS            [2018] 14 S.C.R.
KANUBHAI BHAGVANBHAI NAYAK
v.
STATE OF GUJARAT
(Criminal Appeal No. 1540 of 2018)
DECEMBER 03, 2018
[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]
Penal Code, 1860: s.302 – Conviction under s.302 by trial
court – High Court confirmed conviction and sentence – Appeal
against conviction on the ground that in the order of High Court,
there was neither any reference of any evidence, nor its application
and nor there was any discussion much less finding in the impugned
order – Held: In view of the powers of the Appellate Court under
s.386(b), Cr.P.C., the High Court ought to have examined the
evidence of each prosecution witnesses on issues arising in the case
and the same should have been examined in the light of the challenge
made by the accused in appeal and then recorded a finding either
of affirmation or modification or reversal, as the case may be – It
was incumbent upon the High Court to deal with issues urged and
then record its finding one way or the other keeping in view the law
– Impugned order is set aside and matter remitted to High Court for
fresh consideration – Code of Criminal Procedure, 1973 – s.386(b).
Allowing the appeal and remanding the matter to High
Court, the Court
HELD: 1. The High Court neither discussed any issue
arising in the case nor appreciated the evidence and nor recorded
its findings on any of the issues arising in the case and urged by
the appellant. Mere perusal of the impugned order indicated that
the High Court first set out the post mortem report and on its
perusal observed that the injuries on the body of the deceased
revealed that the death was homicidal leading to murder. The
Court then observed that the evidence led by “various witnesses”
revealed that it was the accused who was present at the scene of
the offence and carried the attack on deceased. The High Court
then observed that since the Additional Sessions Judge had
“minutely examined” all the evidence led by the prosecution and
has given cogent and convincing reasons, the High Court is in
[2018] 14 S.C.R. 452
452
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453
complete agreement with the view taken by the Additional
Sessions Judge. It is only with this narration of facts, the High
Court dismissed the appeal. [Para 9][454-F-H]
2. In view of the powers of the Appellate Court under
Section 386 (b) of the Code of Criminal Procedure, 1973, the
High Court should have examined the evidence of each
prosecution witnesses on issues arising in the case and the same
should have been examined in the light of the challenge made by
the accused in appeal and then a finding should have been
recorded either of affirmation or modification or reversal, as the
case may be. [Para 10][455-A-B]
3. The High Court, is empowered in its appellate jurisdiction
to examine the issues of facts and law while examining the legality
and the correctness of the impugned order.  It is equally
incumbent upon the Division Bench to deal with issues urged
and then record its findings one way or the other keeping in view
the law laid down by this Court which governs the issues.
[Para 12][455-C-D]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1540 of 2018.
From the final Judgment and Order dated 25.04.2016 of the High
Court of Gujarat at Ahmedabad in Criminal Appeal No.1512 of 2011.
Ms. Vibha Datta Makhija, Sr. Adv., Aftab Ali Khan,
M. Z. Chaudhary, Sajid Imam Naqvi, Ms. Disha Vaish, Ms. Heena Khan,
Advs. for the Appellant.
Ms. Puja Singh, Ms. Hemantika Wahi, Ms. Jesal Wahi,
Ms. Vishakha, Advs. for the Respondents.
The Judgment of the Court was delivered by
ABHAY MANOHAR SAPRE, J.
1. Leave granted.
2. This appeal is filed against the final judgment and order dated
25.04.2016 passed by the High Court of Gujarat at Ahmedabad in Criminal
Appeal No.1512 of 2011 whereby the Division Bench of the High Court
dismissed the appeal filed by the appellant herein and confirmed the
order of conviction and sentence dated 30.09.2011 passed by the 9th
Additional Sessions Judge, Vadodara in Sessions Case No.101 of 2010.
KANUBHAI BHAGVANBHAI NAYAK v. STATE OF GUJARAT
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454                    SUPREME COURT REPORTS            [2018] 14 S.C.R.
3. Few facts need mention hereinbelow for the disposal of the
appeal.
4. By impugned order, the Division Bench of the High Court
dismissed the criminal appeal filed by the appellant (accused) and
confirmed his conviction and sentence awarded by the 9th Additional
Ses

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