Bharatkumar Rameshchandra Barot vs The State Of Gujarat

3. Facts of the case lie in a narrow compass so also the issue involved in the appeal is short as would be clear from the facts stated hereinbelow.

5. The Sessions Judge, however, awarded to the appellant 10 years’ rigorous imprisonment and fine of Rs.5000/- and, in default of payment of fine, to further undergo 5 months' simple imprisonment so far as offence under Section 302 IPC was concerned and so far as for the offence punishable under Section 135 of the B.P. Act was concerned, the appellant was awarded 3 months’ simple imprisonment and fine of Rs.500/- and, in default of payment of fine, to further undergo 15 days' simple imprisonment.

6. The State felt aggrieved by the award of the lesser punishment of 10 years under Section 302 IPC to the appellant as against what is specified under Section 302 IPC and filed criminal appeal under Section 377 of the Code, out of which this appeal arises, praying therein for its enhancement 3 and make it in conformity with the punishment specified under Section 302 IPC.

7. The appellant was served with the notice (dasti) of the appeal filed by the State. The appellant (accused), however, did not appear despite service of dasti notice made on him and nor filed any criminal appeal challenging his conviction on merits. The High Court, therefore, appointed Mr. U. Oza, advocate, as amicus curiae to assist the Court on behalf of the accused (appellant herein) for defending him.

8. By impugned judgment, the High Court allowed the State's appeal and enhanced the sentence from “10 years” to “life imprisonment” for the offence of murder under Section 302 IPC. In other words, the High Court enhanced the sentence and awarded sentence of “life imprisonment” to the appellant as provided under Section 302 IPC. So far 4 as the imposition of fine was concerned, it was upheld.

21. Fourth, the amicus curiae had never made any complaint in the High Court for not giving him more time for preparation of the case. Even in this appeal, amicus curiae did not file any affidavit to this effect. Therefore, this submission raised by the amicus curiae is without any foundation and is accordingly dismissed.

22. In our considered opinion, the High Court, therefore, ensured compliance with Section 377(3) of the Code and we do not find any ground to interfere in this finding.

23. The object of Section 377 of the Code is that when the State files an appeal seeking enhancement of jail sentence awarded by the Sessions Judge, the jail sentence cannot be enhanced unless the 9 accused is given an opportunity to defend it. The accused is also entitled to pray for his acquittal or award of lesser punishment. If the accused, after service of notice fails to raise this plea then the High Court would be justified in deciding the State’s appeal on merits which is confined to only for enhancement of jail sentence. We, therefore, find no ground to remand the case for rehearing of the appeal.

26. Section 302 IPC, in clear terms, provides that “whoever commits murder shall be punished with “death" or “imprisonment for life” and shall also be liable to “fine”.

28. In the light of the foregoing discussion, we are of the considered opinion that the High Court was justified in modifying the jail sentence awarded to the appellant by the Sessions Judge and rightly enhanced the sentence by awarding punishment of “Life imprisonment” under Section 302 IPC to the appellant (accused) in place of “10 years jail sentence awarded by the Sessions Judge.

30. The appeal thus fails and is accordingly dismissed.

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