Special Leave Petition Crl No 1383 of 1978
From the Judgment and Order dated 3 1 1978 of the Punjab and Haryana High Court in Crl
A No 103974
K L Jogga and L N Gupta for the Petitioner
Hardev Singh for the Respondent
The Order of the Court was delivered by SHINGHAL J We have heard learned counsel for the parties at length
Accused Bachan Singh Gurnam Singh and Chanan Singh were convicted by the Sessions Judge of Gurdaspur of an offence under section 304 Part I read with section 149 IPC and were sentenced to rigorous imprisonment for 10 years and a fine of Rs 1000 
They were also convicted of an offence under section 148 IPC and sentenced to rigorous imprisonment for 2 years
The remaining two accused Ravail Singh and Vir Singh were convicted of an offence under section 304 Part I read with section 149 IPC but they were sentenced to rigorous imprisonment for 5 years and a fine of Rs 500 
Further they were convicted of an offence under section 147 IPC and were sentenced to rigorous imprisonment for 1 year
An appeal was filed by the accused against their conviction and sentence and the State filed an appeal for their conviction and sentence under section 302 IPC A revision petition was filed under 647 section 401 Crl
PC for enhancement of the sentence of imprisonment and fine to meet the ends of justice
The High Court of Punjab and Haryana made an express order on December 9 1974 that the revision petition would be heard alongwith the criminal appeal No 1039 of 1974 filed by the accused
By its impugned Judgment dated January 3 1978 the High Court dismissed the appeal which was filed by the accused but enhanced the sentence of Bachan Singh Gurnam Singh and Chanan Singh accused under section 304 Part I read with section 149 IPC to rigorous imprisonment for life and of accused Ravail Singh and Vir Singh under the same section to rigorous imprisonment for 10 years
While making that order the High Court observed that the State appeal for enhancement of punishment was partly accepted
That is why all the five accused have applied to this Court for special leave under article 136 of the Constitution
It has been argued by learned counsel for the accused that the High Court committed an error of law in enhancing the sentence of the accused without giving them a reasonable opportunity of showing cause against such enhancement and without allowing them to plead for their acquittal or for reduction of the sentence as contemplated by sub section 3 of section 377 of the Code of Criminal Procedure
It appears to us however that as the State Government did not file an appeal against the sentence under sub section 1 of section 377 CrPC and as it is not disputed before us that its appeal was directed against the acquittal of the accused for the offence under section 302 IPC there is no justification for the argument that the High Court committed an illegality in not complying with the requirement of sub section 3 of that section for giving the opportunity to the accused of showing cause against the enhancement of the sentence or of pleading for their acquittal or for reduction of the sentence
As has been stated a petition was filed under section 401 Cr
PC for enhancement of the sentence and it was clearly maintainable as it was not permissible for the revision petitioner to file an appeal under section 377
It will be recalled that the High Court made an express order on December 9 1974 for the hearing of the revision petition alongwith the appeal which had been filed by the accused
The fact therefore remains that the High Court had before it the above mentioned appeals which had been filed by the accused and the State and the revision petition under section 401 Cr
PC for enhancement of the sentence
While that court dismissed the appeal of the 648 accused and allowed the appeal of the State in part it forgot to make a reference to the revision petition while drawing up the operative part of its order
That was an inadvertent mistake for after reading the impugned judgment of the High Court we have no doubt that it effectively disposed of both the appeals and the revision petition even though the wordings of the judgment in that respect were not quite appropriate
But even otherwise there is no merit in the grievance of the accused that they were not given the opportunity of showing cause against the enhancement of the sentence or to plead for their acquittal or for reduction of the sentence
The opportunity for pleading for acquittal was amply furnished at the hearing of their own appeal against their conviction and the same appeal furnished them the necessary opportunity for pleading for the reduction of the sentence
That in fact was the subject matter of their appeal
It is not disputed before us that the High Court heard the State appeal against the acquittal of the accused alongwith the appeal which was filed by the accused and that furnished further opportunity to the accused to plead for their acquittal or reduction of sentence or to show cause against the enhancement of the sentence
There is thus no force in the argument to the contrary
It has to be appreciated that in respect of the petition which was filed under section 401 CrPC for the exercise of the High Court s powers of revision it was permissible for it to exercise the power of a Court of Appeal under section 386 for enhancement of the sentence and if that had been done there is no justification for the argument that the enhancement was illegal
There is another reason for this view
It was permissible for the High Court under section 397 Cr
PC to call for and examine the record of the proceeding before the trial court for the purpose of satisfying itself as to the correctness legality or propriety of any finding sentence or order recorded or passed by that inferior court
The High Court s power of revision in the case of any proceeding the record of which has been called for by it or which otherwise comes to its knowledge has been stated in section 401 Cr
PC to which reference has been made above
That includes the power conferred on a Court of Appeal under section 386 to enhance or reduce the sentence
So when the record of the case was before the High Court in connection with the two appeals and the revision petition referred to above there was nothing to prevent the High Court from invoking its powers under section 397 read with section 401 Cr
PC and to make an order for the enhancement of the sentence
649 There is thus no force in the argument to the contrary
All the same we gave an opportunity to the learned counsel for the accused to advance his arguments on question of sentence and all that he was able to argue was that as the accused had undergone a portion of the sentence and as the offence was committed in 1972 the High Court was not justified in enhancing the sentence
As is obvious both these arguments are untenable and inconsequential because of the concurrent findings of the trial court and the High Court that the accused emerged from the house of accused Bachan Singh as soon as Sarup Singh deceased reached the place of occurrence shouted that he should be taught a lesson for getting liquor recovered from them and beat him with their respective weapons
It has been found further that while accused Vir Singh caught hold of the hair of the deceased and Ravail Singh caught hold of his legs and felled him on the ground Gurnam Singh who was armed with a datar dealt belows on his right knee while Chanan Singh gave a kirpan blow on his left hand and then accused Gurnam Singh gave a blow on his right knee while Chanan Singh gave a kirpan blow on his left hand and he Gurnam Singh and Bachan Singh dealt further blows on his left leg near the knee as a result of which the left leg was completely severed from the body
It has also been concurrently found that the accused took away the chopped off leg of the deceased after wrapping it in his turban and that he succumbed to the injuries soon after
The facts and the circumstances which have thus been established by the evidence of Pal Singh PW4 and Nishan Singh PW5 on which reliance has been placed by both the courts justify the view taken by the High Court that the accused deserved the sentence awarded to them by it
Learned counsel for the accused tried to argue that the conviction of the accused was not justified on the merits and took us through the finding in regard to the motive for the offence the nature of the medical evidence the plea of self defence taken by accused Bachan Singh and the relationship of eye witnesses Pal Singh PW4 and Nishan Singh PW5 with the deceased
Apart from the fact that there was no occasion for us to consider those arguments we have no hesitation in saying that they are without merit
In the view we have taken the petition for special leave is dismissed
VDK Petition dismissed


Summary:
Against their conviction and sentence passed by the Sessions Judge Gurdaspur the appellants preferred an appeal to the High Court
The State filed an appeal for their conviction and sentence under section 302 IPC A revision petition was also filed under Section 401 Crl
PC for enhancement of the sentence of imprisonment and fine to meet the ends of justice
Though the High Court made an express order on December 9 1974 that the revision petition would be heard along with the criminal appeal the High Court by its impugned judgment dated January 3 1978 dismissed the appeal filed by the accused but enhanced the sentence of Bachan Singh Gurnam Singh and Chanan Singh accused under Section 304 Part I read with Section 149 IPC to rigorous imprisonment for life and of accused Ravail Singh and Vir Singh under the same section to rigorous imprisonment for 10 years
While making that order the High Court observed that the State appeal for enhancement of punishment was partly accepted without reference to the revision petition
Hence the petition for special leave under Article 136 of the Constitution on the ground that the High Court committed an error of law in enhancing the sentence of the accused without giving them a reasonable opportunity of showing cause against such enhancement and without allowing them to plead for their acquittal or for reduction of the sentence as contemplated by sub section 3 of section 377 of the Code of Criminal Procedure
Dismissing the petition the Court  HELD 1
The revision petition under section 401 Crl
PC for enhancement of the sentence was maintainable as it was not permissible for the revision petitioner to file an appeal under section 377
The High Court effectively disposed of both the appeals and the revision petition even though there was an inadvertent mistake in not making a reference to the revision petition in the judgment
647 F G 648 B 2
The opportunity for pleading for acquittal was amply furnished to the accused at the hearing of their own appeal against their conviction and the same appeal furnished them the necessary opportunity for pleading for their acquittal or the reduction of the sentence
That in fact was the subject matter of their appeal
The fact that the appeal filed by the State 5 625SCI79 646 against the acquittal of the accused under section 302 IPC was heard along with their appeal against conviction and sentence itself furnished an opportunity to show cause against the enhancement of the sentence
648 C D 3
a In the petition filed under section 401 Crl
PC for the exercise of the High Court s power of revision it was permissible for it to exercise the power of a Court of appeal under section 386 for enhancement of the sentence
648 E F b It was also permissible for the High Court under Section 397 Crl
PC to call for and examine the record of the proceedings before the trial court for purpose of satisfying itself as to the correctness legality or propriety of any finding sentence or order recorded or passed by that inferior Court
The High Court s power of revision under section 401 Crl
PC in the case of any proceeding the record of which has been called for by it or which otherwise comes to its knowledge includes the power conferred on a court of appeal under section 386 to enhance or reduce the sentence
So when the record of the case was before the High Court in connection with the two appeals and the revision petition there was nothing to prevent the High Court from invoking its power under section 397 read with 401 Crl
PC and to make an order for the enhancement of the sentence
648 F H