Naresh and Others vs State of Uttar Pradesh

We are afraid we have to voice our grave concern and express our serious displeasure at the course of events in the High Court in the present case. We consider it our duty to do so. We are not a little disturbed by what has been done in the High Court. The High Court, some weeks after pronouncing its judgment in a Criminal appeal, altered a conviction u/s 302 Indian Penal Code which it had confirmed to one u/s 304 Indian Penal Code, ostensibly exercising its power to correct clerical errors but ignoring Section 362 of the CrPC 1973 which expressly provides "Save as otherwise provided by this Cede or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

Naresh, one of the appellants, was convicted by the Trial Court of an offence u/s 302 Indian Penal Code and the rest of the appellants were convicted u/s 302 read with. Section 149 Indian Penal Code. All of them were sentenced to imprisonment for life. The accused preferred appeals to the High Court. J.P. Chaturvedi and R.C. Srivastava JJ who heard the appeals, while discussing the question of the culpability of the appellant Naresh observed as follows : "It may be pointed out that Bahadur (deceased) had a single injury on his head. This blow was inflicted by Naresh appellant and it resulted in fractures of frontal and parietal bones into eight pieces. The blow was very effective and powerful and as such, so far as Naresh appellant is concerned, we have no doubt that he intended to kill Bahadur and therefore, committed an offence punishable u/s 302 Indian Penal Code." After recording this categoric finding about the culpability of Naresh, the High Court proceeded to discuss the case against the rest of the accused. Then, in the ultimate paragraph of the judgment, which we may call the operative part of the judgement, the High Court again said about Naresh : "His conviction u/s 302 Indian Penal Code and sentence of imprisonment for life awarded thereunder are affirmed." The judgment of the High Court was pronounced on February 25, 1980. Thereafter on an application filed by the" appellant Naresh, the High Court made the following order on April 14, 1980 :

The application is allowed as there is a clerical mistake in the operative part of the judgment in Criminal Appeal No. 674 of 1975 regarding the conviction and sentence of appellant Naresh. The sentence, 'but his conviction u/s 302 I.P.C. and sentence of imprisonment for life awarded thereunder are affirmed' be substituted by the sentence 'He is convicted u/s 304(Part I) I.P.C. instead of Section 302 I.P.C. and sentenced to undergo rigorous imprisonment for seven years.

We are entirely at a loss to understand the order dated April 14, 1980. In their judgment dated February 25, 1980 while discussing the case against Naresh the learned Judges had given a specific and express finding that he intended to kill the deceased Bahadur and, therefore, had committed an offence punishable u/s 302 Indian Penal Code. The operative part of the judgment also said the same thing. We do not understand what the learned Judges mean when they state in their order dated April 14, 1980, "there is a clerical mistake in the operative part of the judgment." The High Court was wholly wrong in altering the judgment pronounced by them disposing of the Criminal Appeals. That was clearly in contravention of the provisions of Section 362 CrPC. What was worse, the High Court acted in purported exercise of the power to correct clerical mistakes when in fact there was none. The conviction u/s 302 Indian Penal Code was perfectly correct and the conviction had been rightly affirmed by the High Court in the first instance. There was no occasion at all for the purported exercise of power to correct a clerical mistake and alter the conviction u/s 302 to one u/s 304 Indian Penal Code. We are greatly concerned that the High Court should have committed this grievous error. There is, however, nothing that we can do about it at this juncture as the State has not chosen to file any appeal against the order dated April 14, 1980.

Shri S.P. Singh has taken us through the relevant evidence. We are unable to find any reason to reject the evidence of the four eye witnesses. Their evidence has been accepted by both the Trial Court and the High Court. The questions raised relate to appreciation of evidence and we find no ground for interference under Article 136 of the Constitution. Criminal Appeal No. 197 and 198 of 1981 are accordingly dismissed.