Full Judgment Text
NON-REPORTABLE
2025 INSC 802
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.2892-2893 OF 2025
(ARISING OUT OF SLP (CRL.) NOS.621-622 OF 2024)
NAGARAJAN … APPELLANT
VERSUS
STATE OF TAMIL NADU … RESPONDENT
J U D G M E N T
NAGARATHNA, J.
Leave granted.
2. Being aggrieved by the common impugned order dated
29.11.2021 passed by the High Court of Judicature at
Madras Bench at Madurai dismissing the Criminal Appeal
preferred by the appellant being Crl. A. (MD) No. 137/2015
and allowing the suo motu revision being Crl. R.C. (MD) No.
248/2015 thereby convicting the appellant under Sections
306 and 448 of the Indian Penal Code, 1860 (hereinafter
Signature Not Verified
Digitally signed by
RAJNI MUKHI
Date: 2025.06.04
18:54:55 IST
Reason:
Page 1 of 19
referred to as “IPC”), the present Criminal Appeals have been
filed by the appellant (accused).
3. Briefly stated, the facts of the case are that the appellant
was the neighbour of the deceased Smt. Mariammal. On the
night of 11.07.2003, the appellant entered the room of the
deceased and while hugging her, attempted to outrage her
modesty. Upon hearing the disturbance, the mother-in-law
of the deceased intervened and scolded the appellant, who
then fled from the premises. The next day i.e., on
12.07.2003, at around 5:00 A.M., the mother-in-law of the
deceased found the deceased and her infant daughter
missing from the house. Thereafter, she searched for them
and enquired about their whereabouts from the deceased’s
father. It was later revealed that in the morning, the
deceased had visited the school where her elder daughter
was studying in Class III and attempted to take her away.
However, due to the absence of the warden, the teachers did
not allow the child to leave. The deceased thereafter went to
a nearby field with her infant of one and half years and
committed suicide by consuming oleander seeds and also
Page 2 of 19
administered poison to her child. Both the deceased and her
child were later discovered by a passerby who was grazing
cattle nearby, who then alerted the village watchman.
Although the child was still alive when found, she was
declared dead when she was taken to the hospital.
4. Based on the complaint lodged by the watchman, FIR No.
239/2003 was registered with Kannivadi Police Station
under Section 306 of IPC against the appellant. Upon
completion of the investigation, a charge-sheet was filed on
30.10.2003 against the appellant under Section 306 of IPC.
The case was committed to the Mahila Court, Fast Track
Court, Dindigul as S.C. No. 54 of 2007. The Trial Court
altered the charges to Sections 354 and 448 of IPC and on
29.05.2015, the Trial Court acquitted the appellant of the
charge under Section 306 of IPC. The appellant was
convicted under Sections 354 and 448 of IPC and sentenced
to undergo simple imprisonment for three years and one
month and to pay a fine of Rs. 25,000/- and in default
whereof to undergo simple imprisonment for three months
for the offence under Section 354 of IPC and a further
Page 3 of 19
sentence simple imprisonment for three months for the
offence under Section 448 of IPC. The Trial Court observed
that the evidence on record reveals that the appellant
trespassed into the house of deceased at midnight and
hugged her. Accordingly, the Trial Court convicted the
appellant under Sections 354 and 448 of IPC. Insofar as
Section 306 of IPC was concerned, the Trial Court observed
that the actions of the appellant did not constitute abetment
of suicide as the appellant did not instigate the deceased to
commit suicide. Hence, the Trial Court acquitted the
appellant under Section 306 of IPC.
5. Being aggrieved by the conviction under Sections 354 and
448 of IPC, the appellant filed Criminal Appeal before the
High Court being Crl. A. (MD) No. 137/2015. While
admitting the appeal and entertaining the appellant’s
application for suspension of sentence, the High Court,
upon a prima facie appraisal of the Trial Court’s reasoning,
formed the view that the appellant’s acquittal under Section
306 of IPC may require further examination. Observing that
the evidence relating to abetment of suicide was not duly
Page 4 of 19
appreciated and noting that the State had not filed an
appeal against the acquittal, the High Court by order dated
suo motu
08.06.2015, directed the registration of a criminal
revision case to examine the propriety of the acquittal. This
came to be registered as Crl. R.C.(MD) No. 248 of 2015. This
was during the pendency of accused appeal before the High
Court.
6. In order to exercise of suo motu revisional powers of the High
Court, appointed an Amicus Curiae to assist the Court. The
Amicus was further tasked to examine the Trial Court’s
findings in acquitting the Appellant accused under Section
306 of IPC.
7. By common impugned judgment dated 29.11.2021, the High
Court asserted that it has the inherent power to initiate suo
motu revision under Section 401 of the Code of Criminal
Procedure, 1973 (for short, “CrPC”). The High Court
dismissed the Criminal Appeal filed by the appellant and
allowed the suo motu Criminal Revision Petition, thereby
convicting the appellant under Sections 306 and 448 of IPC
and sentenced him to undergo rigorous imprisonment for
Page 5 of 19
five years and to pay a fine of Rs. 5,000/- and in default, to
undergo simple imprisonment for three months for the
offence under Section 306 of IPC and sentenced him to
undergo simple imprisonment for three months for the
offence committed under Section 448 of IPC. The High Court
observed that the appellant has played an active role in
tarnishing the self-esteem of the deceased by outraging her
modesty and thereby instigated her to commit suicide.
Hence, the offence under Section 306 of IPC was made out.
8. Being aggrieved, the appellant has filed the present Criminal
Appeals.
9. We have heard learned counsel for the respective parties and
perused the material on record. This appeal is being
disposed of by following the judgment of this Court in
Sachin vs. State of Maharashtra, Criminal Appeal
Nos.2073-2075 of 2025 dated 21.04.2025. The relevant
paragraphs of the said judgment read as under:
“23. The question for consideration in this case is,
whether, in an appeal against conviction, the appellate
court could have directed enhancement of the sentence in
an appeal filed by the accused. Under clause (b) of
Section 386 CrPC, firstly, the appellate court can no
Page 6 of 19
doubt alter the findings and sentence and acquit or
discharge the accused or order him to be retried by a
Court of competent jurisdiction subordinate to such
appellate court or committed for trial. Secondly, the
appellate court can also alter the findings but maintain
the sentence. Thirdly, the appellate court can, in an
appeal from a conviction, with or without altering the
finding, alter the nature or the extent, or the nature and
extent, of the sentence but not so as to enhance the
same. A plain reading of this would imply that in an
appeal against conviction which is obviously filed by the
accused, the challenge could be two-fold: firstly, it could
be against the conviction itself in which case there is a
challenge to the sentence also; and secondly, the
challenge could be only to the sentence while accepting
the conviction. In other words, the challenge would also
be only for reduction of the sentence. The question is,
whether, in an appeal challenging the conviction and
sentence, the appellate court could, while affirming the
conviction enhance the sentence imposed by the trial
court by directing that the same had to be with reference
to other statutory provisions. There is no doubt that the
appellate court while maintaining the conviction can
reduce the sentence and grant partial relief to an accused
but in an appeal filed by the appellant-accused, can the
appellate court not only affirm the conviction but go a
step further and seek to enhance the sentence than what
has been imposed by the Trial Court. It cannot be lost
sight of that in an appeal filed by the accused, the
appellant-accused is, at best, seeking a reversal of the
conviction as well as setting aside of the sentence and the
least that the appellant-accused can expect is even while
the conviction is affirmed, the sentence could be
maintained, if not reduced.
24. Thus, in an appeal filed by the appellant-accused
against the judgment of the conviction and sentence, can
the accused be left worse-off while the conviction is
affirmed by the appellate court exercising appellate
jurisdiction by enhancing the sentence? In such an
Page 7 of 19
event, the appellant-accused would be better off, if he
either withdraws his appeal or, not to file an appeal at all.
But an appeal is not only a valuable statutory right but
also a constitutional right in criminal cases.”
10. That a right of appeal is an invaluable right, particularly for
an accused who cannot be condemned eternally by a trial judge,
without having a right to seek a re-look of the Trial Court’s
judgment by a superior or appellate court. The right to prefer an
appeal is not only a statutory right but also a constitutional right
in the case of an accused. This is because an accused has a right
to not only challenge a judgment on its merits, namely, with
respect to the conviction and sentence being imposed on him, but
also on the procedural aspects of the trial. An accused can
question procedural flaws, impropriety and lapses that may have
been committed by the Trial Court in arriving at the judgment of
conviction and imposition of sentence in an appeal filed against
the same. It then becomes the duty of the appellate court to
consider the appeal from the perspective of the accused-appellant
therein to see if he has a good case on merits, and to set aside the
judgment of the Trial Court and acquit the accused, or to remand
the matter for a re-trial in accordance with law, or to reduce the
Page 8 of 19
sentence while maintaining the conviction or, in the alternative, to
dismiss the appeal. In our considered view, the appellate court in
an appeal filed by the accused cannot while maintaining the
conviction enhance the sentence. While exercising its appellate
jurisdiction, the High Court cannot act as a revisional court,
particularly, when no appeal or revision has been filed either by
the State, victim or complainant for seeking enhancement of
sentence against accused. In the aforesaid judgement, we have
analysed Section 386 of CrPC which deals with the right of a
party including an accused to file an appeal, we may peruse
Section 401 of CrPC which deals with the revisional powers of the
High Court and which is extracted as under:
“ 401. High Court's powers of revision.— (1) In the case
of any proceeding the record of which has been called for
by itself or which otherwise comes to its knowledge, the
High Court may, in its discretion, exercise any of the
powers conferred on a Court of Appeal by sections 386,
389, 390 and 391 or on a Court of Session by section
307, and, when the Judges composing the Court of
Revision are equally divided in opinion, the case shall be
disposed of in the manner provided by section 392.
(2) No order under this section shall be made to the
prejudice of the accused or other person unless he has
had an opportunity of being heard either personally or by
pleader in his own defence.
Page 9 of 19
(3) Nothing in this section shall be deemed to authorise a
High Court to convert a finding of acquittal into one
conviction.
(4) Where under this Code an appeal lies and no appeal is
brought, no proceeding by way of revision shall be
entertained at the instance of the party who could have
appealed.
(5) Where under this Code an appeal lies but an
application for revision has been made to the High Court
by any person and the High Court is satisfied that such
application was made under the erroneous belief that no
appeal lies thereto and that it is necessary in the
interests of Justice so to do, the High Court may treat the
application for revision as a petition of appeal and deal
with the same accordingly.”
11. Sub-section (4) of Section 401 of CrPC states that where
under the CrPC an appeal could have been filed and has not been
filed, then no proceeding by way of revision could be entertained
at the instance of the party who could have appealed. This means
if a State, complainant or the victim who have the right to file an
appeal do not opt to do so, then the High Court cannot entertain a
revision at its behest. Also, if an appeal lies under the CrPC but
an application for revision has been made to the High Court by
any person under an erroneous belief, then the High Court can
treat the application for revision as petition of appeal and deal
with the same accordingly. What is pertinent is that under
Page 10 of 19
Section 401 of CrPC, the High Court is not authorised to convert
the findings of acquittal into one of conviction by exercise of
revisional jurisdiction. This salutary principle can be extended to
also mean that the High Court cannot enhance the sentence
imposed by a Trial Court on conviction in an appeal filed by the
accused/convict. Thus, in sum and substance, it can be observed
that in an appeal filed by the accused seeking setting aside of the
conviction of sentence, the High Court cannot exercise its
revisional powers and while affirming the conviction direct for
enhancement of sentence, when actually appeal could have been
filed by the State, complainant or the victim and has not been
filed. Therefore, where an appeal has been filed by the accused
challenging the conviction and the sentence, the revisional
jurisdiction cannot be exercised by the High Court so as to
remand the matter to the Trial Court for the purpose of
enhancement of the sentence. However, in this case, our focus of
attention is whether, in the absence of any appeal or revision filed
by the State, a complainant or a victim in a particular case and
when the appeal has been filed only by the accused/ convict
assailing the judgment of conviction and sentence, the High Court
Page 11 of 19
can exercise its revisional jurisdiction to enhance the sentence. In
other words, when an accused is seeking setting-aside of a
judgment of conviction and sentence, can the High Court, in the
absence of there being any challenge to the same from any other
quarter, suo motu exercise its revisional power and thereby
condemn the accused by awarding an enhancement in his
sentence. Even if an opportunity of hearing is given to such an
accused/convict, we do not think that the High Court can exercise
its revisional jurisdiction under Section 401 of CrPC while
exercising its appellate jurisdiction in an appeal filed by the
accused/convict in the High Court. All that the High Court can
do is to set-aside the judgment of conviction and sentence and
acquit the accused, or while doing so, order for a retrial, or in the
alternative, while maintaining the conviction, reduce the sentence.
In other words, in an appeal filed only by the accused/convict, the
High Court cannot suo motu exercise its revisional jurisdiction
and enhance the sentence against the accused while maintaining
the conviction. In this regard, we find that the expression “but
not so as to enhance the same” in sub-clause (iii) of clause (b) of
Page 12 of 19
Section 386 of CrPC throws some light on the view we have taken,
which reads as under:
“386. Powers of the Appellate Court. —
xxx
(b) in an appeal from a conviction—
xxx
(iii) with or without altering the finding, alter the nature
or the extent, or the nature and extent, of the sentence,
but not so as to enhance the same”
Although the said expression “but not so as to enhance the
same” is in the context of sub-clause (iii) of clause (b) of Section
386 of CrPC, the spirit of the said provision must be understood,
inasmuch as while maintaining the finding of conviction, the High
Court cannot exercise its revisional jurisdiction under Section 401
of CrPC and enhance sentence awarded to the accused/appellant.
12. In this context, we also observe that the Trial Court should
also be very careful while passing an order of sentence inasmuch
as the sentence imposed must be concomitant with the charge(s)
framed and the findings arrived at while arriving at a judgment of
conviction. If the charges are proved beyond reasonable doubt
against an accused, then the sentence following a finding and
Page 13 of 19
judgment of conviction must be appropriate to the nature of the
charge(s) which are proved by the prosecution.
13. In this regard, it must be noted that for exercise of powers of
the appellate court for enhancement of sentence in an appeal filed
either by the State or the complainant or the victim, the CrPC
provides that the appellate court can reverse the finding and
sentence and acquit or discharge the accused, or order him to be
re-tried by a court competent to try the offence, or alter the
finding by maintaining the sentence, or with or without altering
the finding, alter the nature or the extent, of the sentence so as to
enhance or reduce the same. Thus, the power to enhance the
sentence can be exercised by the appellate court only in an appeal
filed by the State, victim or complainant, provided the accused
has had an opportunity of showing cause against such
enhancement. It is further provided that the appellate court shall
not inflict greater punishment for the offence which in its opinion
the accused has committed, than might have been inflicted for
that offence by the court passing the order of sentence under
appeal. Therefore, in an appeal for enhancement of sentence filed
by the State etc., unless the conditions prescribed in the form of
Page 14 of 19
provisos to Section 386 of CrPC are complied with by the appellate
court, there cannot be an enhancement of sentence. Obviously in
such an appeal for enhancement of sentence, the convict or the
accused is the respondent and therefore there cannot be
enhancement of sentence unless the accused or convict has been
heard. However, under the scheme of Section 386 of CrPC vis-à-
vis in an appeal for enhancement of sentence, there can also be
an acquittal of the accused as per sub-clause (i) of clause (c) of
Section 386 of CrPC. But, on the other hand, in an appeal from a
conviction, it has been expressly stated that there cannot be
enhancement of the sentence. Therefore, while in an appeal for
enhancement of sentence filed by the State, the accused can make
out a case for acquittal or discharge or retrial, in the case of an
appeal from conviction, the respondent in such an appeal, namely
the State or the victim or the complainant, cannot seek
enhancement of the sentence than what has been awarded by the
Trial Court in the absence of filing any appeal or revision. The
above distinction can be explained by way of a latin maxim which
has been discussed by Ujjal Bhuyan, J., while in Bombay High
Page 15 of 19
Court, in Jyoti Plastic Works Pvt. Ltd. vs. Union of India and
Ors., 2020 OnLine Bom 2276 , in the following words:
“40. In this connection we may refer to the maxim
reformatio in peius . It is a latin phrase meaning a change
towards the worse i.e., a change for the worse. As a legal
expression it means that a lower court judgment is
amended by a higher court into a worse one for those
appealing it. In many jurisdictions, this practice is
forbidden ensuring that an appellant cannot be placed in
a worse position as a result of filing an appeal. When the
above phrase is prefixed by the words ‘no’ or ‘prohibition’,
which would render the maxim as no reformatio in peius
or prohibition of reformatio in peius , it would denote a
principle of procedure as per which using a remedy
available in law should not aggravate the situation of the
person who avails the remedy. In other words, a person
should not be placed in a worse position as a result of
filing an appeal. No reformatio in peius or prohibition of
reformatio in peius is a part of fair procedure and thus by
extension can also be construed as part of natural
justice. It is not only a procedural guarantee but is also a
principle of equity.”
(underlining by us)
14. The rationale of the above can be explained in simple
language by stating that no appellant by filing an appeal can be
worse-off than what he was. That is exactly what we are seeking
to reiterate in our judgment having regard to the facts of the
present case.
15. In the instant case, we find that the appellant/accused
herein had filed the appeal against the conviction and sentence
Page 16 of 19
imposed by the Trial Court for the offences punishable under
Sections 354 and 448 of IPC. Insofar as Section 306 of IPC is
concerned, the Trial Court had acquitted the appellant. Being
aggrieved by the said conviction under Sections 354 and 448 of
IPC, the appellant had filed the appeal before the High Court.
Neither the State, nor the victim or complainant had sought for
enhancement of sentence, or sought for conviction and sentence
under Section 306 of IPC before the High Court when the
appellant had filed his appeal seeking setting aside of his
conviction and sentence. The High Court, instead of considering
the said appeal filed by the appellant on merits, sought to
exercise suo motu revisional powers for convicting the appellant
under Section 306 of IPC also and thereby sentencing the
accused to undergo rigorous imprisonment for five years and to
pay a fine of Rs. 5,000/- and in default, to undergo simple
imprisonment for three months. The sentences were to run
concurrently. Thus, a conviction awarded for offences under
Sections 354 and 448 of IPC has also resulted in a conviction
under Section 306 of IPC and an enhanced sentence, that too, in
an appeal filed by none other than the appellant.
Page 17 of 19
16. We are of the view that in an appeal filed by the
accused/convict and in the absence of any appeal filed by the
victim, complainant or the State, the High Court cannot exercise
suo motu revision either to enhance the sentence or to convict the
appellant on any other charge. The reasons for coming to such a
conclusion have been discussed above.
17. In the circumstances, we set-aside the conviction and
sentence of the appellant under Section 306 of IPC and confirm
the judgment of the Sessions Court as affirmed by the High Court
qua the offences punishable under Sections 354 and 448 IPC.
Consequently, the appellant is directed to undergo the sentence
and to pay the fine as imposed by the Sessions Court.
In the event the accused has not yet completed the sentence
imposed by the Trial Court, he is directed to surrender before the
jurisdictional Chief Judicial Magistrate or before the concerned
Police Station for being lodged in the jail to suffer the remainder
of the sentence. In case of failure on the part of the accused to
surrender, appropriate action shall be taken up by the concerned
Police Station to arrest the accused for being lodged in the jail.
Page 18 of 19
The appeals are allowed in part in the aforesaid terms.
……………………………………….J.
(B.V. NAGARATHNA)
……………………………………….J.
(SATISH CHANDRA SHARMA)
NEW DELHI;
JUNE 04, 2025.
Page 19 of 19
2025 INSC 802
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.2892-2893 OF 2025
(ARISING OUT OF SLP (CRL.) NOS.621-622 OF 2024)
NAGARAJAN … APPELLANT
VERSUS
STATE OF TAMIL NADU … RESPONDENT
J U D G M E N T
NAGARATHNA, J.
Leave granted.
2. Being aggrieved by the common impugned order dated
29.11.2021 passed by the High Court of Judicature at
Madras Bench at Madurai dismissing the Criminal Appeal
preferred by the appellant being Crl. A. (MD) No. 137/2015
and allowing the suo motu revision being Crl. R.C. (MD) No.
248/2015 thereby convicting the appellant under Sections
306 and 448 of the Indian Penal Code, 1860 (hereinafter
Signature Not Verified
Digitally signed by
RAJNI MUKHI
Date: 2025.06.04
18:54:55 IST
Reason:
Page 1 of 19
referred to as “IPC”), the present Criminal Appeals have been
filed by the appellant (accused).
3. Briefly stated, the facts of the case are that the appellant
was the neighbour of the deceased Smt. Mariammal. On the
night of 11.07.2003, the appellant entered the room of the
deceased and while hugging her, attempted to outrage her
modesty. Upon hearing the disturbance, the mother-in-law
of the deceased intervened and scolded the appellant, who
then fled from the premises. The next day i.e., on
12.07.2003, at around 5:00 A.M., the mother-in-law of the
deceased found the deceased and her infant daughter
missing from the house. Thereafter, she searched for them
and enquired about their whereabouts from the deceased’s
father. It was later revealed that in the morning, the
deceased had visited the school where her elder daughter
was studying in Class III and attempted to take her away.
However, due to the absence of the warden, the teachers did
not allow the child to leave. The deceased thereafter went to
a nearby field with her infant of one and half years and
committed suicide by consuming oleander seeds and also
Page 2 of 19
administered poison to her child. Both the deceased and her
child were later discovered by a passerby who was grazing
cattle nearby, who then alerted the village watchman.
Although the child was still alive when found, she was
declared dead when she was taken to the hospital.
4. Based on the complaint lodged by the watchman, FIR No.
239/2003 was registered with Kannivadi Police Station
under Section 306 of IPC against the appellant. Upon
completion of the investigation, a charge-sheet was filed on
30.10.2003 against the appellant under Section 306 of IPC.
The case was committed to the Mahila Court, Fast Track
Court, Dindigul as S.C. No. 54 of 2007. The Trial Court
altered the charges to Sections 354 and 448 of IPC and on
29.05.2015, the Trial Court acquitted the appellant of the
charge under Section 306 of IPC. The appellant was
convicted under Sections 354 and 448 of IPC and sentenced
to undergo simple imprisonment for three years and one
month and to pay a fine of Rs. 25,000/- and in default
whereof to undergo simple imprisonment for three months
for the offence under Section 354 of IPC and a further
Page 3 of 19
sentence simple imprisonment for three months for the
offence under Section 448 of IPC. The Trial Court observed
that the evidence on record reveals that the appellant
trespassed into the house of deceased at midnight and
hugged her. Accordingly, the Trial Court convicted the
appellant under Sections 354 and 448 of IPC. Insofar as
Section 306 of IPC was concerned, the Trial Court observed
that the actions of the appellant did not constitute abetment
of suicide as the appellant did not instigate the deceased to
commit suicide. Hence, the Trial Court acquitted the
appellant under Section 306 of IPC.
5. Being aggrieved by the conviction under Sections 354 and
448 of IPC, the appellant filed Criminal Appeal before the
High Court being Crl. A. (MD) No. 137/2015. While
admitting the appeal and entertaining the appellant’s
application for suspension of sentence, the High Court,
upon a prima facie appraisal of the Trial Court’s reasoning,
formed the view that the appellant’s acquittal under Section
306 of IPC may require further examination. Observing that
the evidence relating to abetment of suicide was not duly
Page 4 of 19
appreciated and noting that the State had not filed an
appeal against the acquittal, the High Court by order dated
suo motu
08.06.2015, directed the registration of a criminal
revision case to examine the propriety of the acquittal. This
came to be registered as Crl. R.C.(MD) No. 248 of 2015. This
was during the pendency of accused appeal before the High
Court.
6. In order to exercise of suo motu revisional powers of the High
Court, appointed an Amicus Curiae to assist the Court. The
Amicus was further tasked to examine the Trial Court’s
findings in acquitting the Appellant accused under Section
306 of IPC.
7. By common impugned judgment dated 29.11.2021, the High
Court asserted that it has the inherent power to initiate suo
motu revision under Section 401 of the Code of Criminal
Procedure, 1973 (for short, “CrPC”). The High Court
dismissed the Criminal Appeal filed by the appellant and
allowed the suo motu Criminal Revision Petition, thereby
convicting the appellant under Sections 306 and 448 of IPC
and sentenced him to undergo rigorous imprisonment for
Page 5 of 19
five years and to pay a fine of Rs. 5,000/- and in default, to
undergo simple imprisonment for three months for the
offence under Section 306 of IPC and sentenced him to
undergo simple imprisonment for three months for the
offence committed under Section 448 of IPC. The High Court
observed that the appellant has played an active role in
tarnishing the self-esteem of the deceased by outraging her
modesty and thereby instigated her to commit suicide.
Hence, the offence under Section 306 of IPC was made out.
8. Being aggrieved, the appellant has filed the present Criminal
Appeals.
9. We have heard learned counsel for the respective parties and
perused the material on record. This appeal is being
disposed of by following the judgment of this Court in
Sachin vs. State of Maharashtra, Criminal Appeal
Nos.2073-2075 of 2025 dated 21.04.2025. The relevant
paragraphs of the said judgment read as under:
“23. The question for consideration in this case is,
whether, in an appeal against conviction, the appellate
court could have directed enhancement of the sentence in
an appeal filed by the accused. Under clause (b) of
Section 386 CrPC, firstly, the appellate court can no
Page 6 of 19
doubt alter the findings and sentence and acquit or
discharge the accused or order him to be retried by a
Court of competent jurisdiction subordinate to such
appellate court or committed for trial. Secondly, the
appellate court can also alter the findings but maintain
the sentence. Thirdly, the appellate court can, in an
appeal from a conviction, with or without altering the
finding, alter the nature or the extent, or the nature and
extent, of the sentence but not so as to enhance the
same. A plain reading of this would imply that in an
appeal against conviction which is obviously filed by the
accused, the challenge could be two-fold: firstly, it could
be against the conviction itself in which case there is a
challenge to the sentence also; and secondly, the
challenge could be only to the sentence while accepting
the conviction. In other words, the challenge would also
be only for reduction of the sentence. The question is,
whether, in an appeal challenging the conviction and
sentence, the appellate court could, while affirming the
conviction enhance the sentence imposed by the trial
court by directing that the same had to be with reference
to other statutory provisions. There is no doubt that the
appellate court while maintaining the conviction can
reduce the sentence and grant partial relief to an accused
but in an appeal filed by the appellant-accused, can the
appellate court not only affirm the conviction but go a
step further and seek to enhance the sentence than what
has been imposed by the Trial Court. It cannot be lost
sight of that in an appeal filed by the accused, the
appellant-accused is, at best, seeking a reversal of the
conviction as well as setting aside of the sentence and the
least that the appellant-accused can expect is even while
the conviction is affirmed, the sentence could be
maintained, if not reduced.
24. Thus, in an appeal filed by the appellant-accused
against the judgment of the conviction and sentence, can
the accused be left worse-off while the conviction is
affirmed by the appellate court exercising appellate
jurisdiction by enhancing the sentence? In such an
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event, the appellant-accused would be better off, if he
either withdraws his appeal or, not to file an appeal at all.
But an appeal is not only a valuable statutory right but
also a constitutional right in criminal cases.”
10. That a right of appeal is an invaluable right, particularly for
an accused who cannot be condemned eternally by a trial judge,
without having a right to seek a re-look of the Trial Court’s
judgment by a superior or appellate court. The right to prefer an
appeal is not only a statutory right but also a constitutional right
in the case of an accused. This is because an accused has a right
to not only challenge a judgment on its merits, namely, with
respect to the conviction and sentence being imposed on him, but
also on the procedural aspects of the trial. An accused can
question procedural flaws, impropriety and lapses that may have
been committed by the Trial Court in arriving at the judgment of
conviction and imposition of sentence in an appeal filed against
the same. It then becomes the duty of the appellate court to
consider the appeal from the perspective of the accused-appellant
therein to see if he has a good case on merits, and to set aside the
judgment of the Trial Court and acquit the accused, or to remand
the matter for a re-trial in accordance with law, or to reduce the
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sentence while maintaining the conviction or, in the alternative, to
dismiss the appeal. In our considered view, the appellate court in
an appeal filed by the accused cannot while maintaining the
conviction enhance the sentence. While exercising its appellate
jurisdiction, the High Court cannot act as a revisional court,
particularly, when no appeal or revision has been filed either by
the State, victim or complainant for seeking enhancement of
sentence against accused. In the aforesaid judgement, we have
analysed Section 386 of CrPC which deals with the right of a
party including an accused to file an appeal, we may peruse
Section 401 of CrPC which deals with the revisional powers of the
High Court and which is extracted as under:
“ 401. High Court's powers of revision.— (1) In the case
of any proceeding the record of which has been called for
by itself or which otherwise comes to its knowledge, the
High Court may, in its discretion, exercise any of the
powers conferred on a Court of Appeal by sections 386,
389, 390 and 391 or on a Court of Session by section
307, and, when the Judges composing the Court of
Revision are equally divided in opinion, the case shall be
disposed of in the manner provided by section 392.
(2) No order under this section shall be made to the
prejudice of the accused or other person unless he has
had an opportunity of being heard either personally or by
pleader in his own defence.
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(3) Nothing in this section shall be deemed to authorise a
High Court to convert a finding of acquittal into one
conviction.
(4) Where under this Code an appeal lies and no appeal is
brought, no proceeding by way of revision shall be
entertained at the instance of the party who could have
appealed.
(5) Where under this Code an appeal lies but an
application for revision has been made to the High Court
by any person and the High Court is satisfied that such
application was made under the erroneous belief that no
appeal lies thereto and that it is necessary in the
interests of Justice so to do, the High Court may treat the
application for revision as a petition of appeal and deal
with the same accordingly.”
11. Sub-section (4) of Section 401 of CrPC states that where
under the CrPC an appeal could have been filed and has not been
filed, then no proceeding by way of revision could be entertained
at the instance of the party who could have appealed. This means
if a State, complainant or the victim who have the right to file an
appeal do not opt to do so, then the High Court cannot entertain a
revision at its behest. Also, if an appeal lies under the CrPC but
an application for revision has been made to the High Court by
any person under an erroneous belief, then the High Court can
treat the application for revision as petition of appeal and deal
with the same accordingly. What is pertinent is that under
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Section 401 of CrPC, the High Court is not authorised to convert
the findings of acquittal into one of conviction by exercise of
revisional jurisdiction. This salutary principle can be extended to
also mean that the High Court cannot enhance the sentence
imposed by a Trial Court on conviction in an appeal filed by the
accused/convict. Thus, in sum and substance, it can be observed
that in an appeal filed by the accused seeking setting aside of the
conviction of sentence, the High Court cannot exercise its
revisional powers and while affirming the conviction direct for
enhancement of sentence, when actually appeal could have been
filed by the State, complainant or the victim and has not been
filed. Therefore, where an appeal has been filed by the accused
challenging the conviction and the sentence, the revisional
jurisdiction cannot be exercised by the High Court so as to
remand the matter to the Trial Court for the purpose of
enhancement of the sentence. However, in this case, our focus of
attention is whether, in the absence of any appeal or revision filed
by the State, a complainant or a victim in a particular case and
when the appeal has been filed only by the accused/ convict
assailing the judgment of conviction and sentence, the High Court
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can exercise its revisional jurisdiction to enhance the sentence. In
other words, when an accused is seeking setting-aside of a
judgment of conviction and sentence, can the High Court, in the
absence of there being any challenge to the same from any other
quarter, suo motu exercise its revisional power and thereby
condemn the accused by awarding an enhancement in his
sentence. Even if an opportunity of hearing is given to such an
accused/convict, we do not think that the High Court can exercise
its revisional jurisdiction under Section 401 of CrPC while
exercising its appellate jurisdiction in an appeal filed by the
accused/convict in the High Court. All that the High Court can
do is to set-aside the judgment of conviction and sentence and
acquit the accused, or while doing so, order for a retrial, or in the
alternative, while maintaining the conviction, reduce the sentence.
In other words, in an appeal filed only by the accused/convict, the
High Court cannot suo motu exercise its revisional jurisdiction
and enhance the sentence against the accused while maintaining
the conviction. In this regard, we find that the expression “but
not so as to enhance the same” in sub-clause (iii) of clause (b) of
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Section 386 of CrPC throws some light on the view we have taken,
which reads as under:
“386. Powers of the Appellate Court. —
xxx
(b) in an appeal from a conviction—
xxx
(iii) with or without altering the finding, alter the nature
or the extent, or the nature and extent, of the sentence,
but not so as to enhance the same”
Although the said expression “but not so as to enhance the
same” is in the context of sub-clause (iii) of clause (b) of Section
386 of CrPC, the spirit of the said provision must be understood,
inasmuch as while maintaining the finding of conviction, the High
Court cannot exercise its revisional jurisdiction under Section 401
of CrPC and enhance sentence awarded to the accused/appellant.
12. In this context, we also observe that the Trial Court should
also be very careful while passing an order of sentence inasmuch
as the sentence imposed must be concomitant with the charge(s)
framed and the findings arrived at while arriving at a judgment of
conviction. If the charges are proved beyond reasonable doubt
against an accused, then the sentence following a finding and
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judgment of conviction must be appropriate to the nature of the
charge(s) which are proved by the prosecution.
13. In this regard, it must be noted that for exercise of powers of
the appellate court for enhancement of sentence in an appeal filed
either by the State or the complainant or the victim, the CrPC
provides that the appellate court can reverse the finding and
sentence and acquit or discharge the accused, or order him to be
re-tried by a court competent to try the offence, or alter the
finding by maintaining the sentence, or with or without altering
the finding, alter the nature or the extent, of the sentence so as to
enhance or reduce the same. Thus, the power to enhance the
sentence can be exercised by the appellate court only in an appeal
filed by the State, victim or complainant, provided the accused
has had an opportunity of showing cause against such
enhancement. It is further provided that the appellate court shall
not inflict greater punishment for the offence which in its opinion
the accused has committed, than might have been inflicted for
that offence by the court passing the order of sentence under
appeal. Therefore, in an appeal for enhancement of sentence filed
by the State etc., unless the conditions prescribed in the form of
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provisos to Section 386 of CrPC are complied with by the appellate
court, there cannot be an enhancement of sentence. Obviously in
such an appeal for enhancement of sentence, the convict or the
accused is the respondent and therefore there cannot be
enhancement of sentence unless the accused or convict has been
heard. However, under the scheme of Section 386 of CrPC vis-à-
vis in an appeal for enhancement of sentence, there can also be
an acquittal of the accused as per sub-clause (i) of clause (c) of
Section 386 of CrPC. But, on the other hand, in an appeal from a
conviction, it has been expressly stated that there cannot be
enhancement of the sentence. Therefore, while in an appeal for
enhancement of sentence filed by the State, the accused can make
out a case for acquittal or discharge or retrial, in the case of an
appeal from conviction, the respondent in such an appeal, namely
the State or the victim or the complainant, cannot seek
enhancement of the sentence than what has been awarded by the
Trial Court in the absence of filing any appeal or revision. The
above distinction can be explained by way of a latin maxim which
has been discussed by Ujjal Bhuyan, J., while in Bombay High
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Court, in Jyoti Plastic Works Pvt. Ltd. vs. Union of India and
Ors., 2020 OnLine Bom 2276 , in the following words:
“40. In this connection we may refer to the maxim
reformatio in peius . It is a latin phrase meaning a change
towards the worse i.e., a change for the worse. As a legal
expression it means that a lower court judgment is
amended by a higher court into a worse one for those
appealing it. In many jurisdictions, this practice is
forbidden ensuring that an appellant cannot be placed in
a worse position as a result of filing an appeal. When the
above phrase is prefixed by the words ‘no’ or ‘prohibition’,
which would render the maxim as no reformatio in peius
or prohibition of reformatio in peius , it would denote a
principle of procedure as per which using a remedy
available in law should not aggravate the situation of the
person who avails the remedy. In other words, a person
should not be placed in a worse position as a result of
filing an appeal. No reformatio in peius or prohibition of
reformatio in peius is a part of fair procedure and thus by
extension can also be construed as part of natural
justice. It is not only a procedural guarantee but is also a
principle of equity.”
(underlining by us)
14. The rationale of the above can be explained in simple
language by stating that no appellant by filing an appeal can be
worse-off than what he was. That is exactly what we are seeking
to reiterate in our judgment having regard to the facts of the
present case.
15. In the instant case, we find that the appellant/accused
herein had filed the appeal against the conviction and sentence
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imposed by the Trial Court for the offences punishable under
Sections 354 and 448 of IPC. Insofar as Section 306 of IPC is
concerned, the Trial Court had acquitted the appellant. Being
aggrieved by the said conviction under Sections 354 and 448 of
IPC, the appellant had filed the appeal before the High Court.
Neither the State, nor the victim or complainant had sought for
enhancement of sentence, or sought for conviction and sentence
under Section 306 of IPC before the High Court when the
appellant had filed his appeal seeking setting aside of his
conviction and sentence. The High Court, instead of considering
the said appeal filed by the appellant on merits, sought to
exercise suo motu revisional powers for convicting the appellant
under Section 306 of IPC also and thereby sentencing the
accused to undergo rigorous imprisonment for five years and to
pay a fine of Rs. 5,000/- and in default, to undergo simple
imprisonment for three months. The sentences were to run
concurrently. Thus, a conviction awarded for offences under
Sections 354 and 448 of IPC has also resulted in a conviction
under Section 306 of IPC and an enhanced sentence, that too, in
an appeal filed by none other than the appellant.
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16. We are of the view that in an appeal filed by the
accused/convict and in the absence of any appeal filed by the
victim, complainant or the State, the High Court cannot exercise
suo motu revision either to enhance the sentence or to convict the
appellant on any other charge. The reasons for coming to such a
conclusion have been discussed above.
17. In the circumstances, we set-aside the conviction and
sentence of the appellant under Section 306 of IPC and confirm
the judgment of the Sessions Court as affirmed by the High Court
qua the offences punishable under Sections 354 and 448 IPC.
Consequently, the appellant is directed to undergo the sentence
and to pay the fine as imposed by the Sessions Court.
In the event the accused has not yet completed the sentence
imposed by the Trial Court, he is directed to surrender before the
jurisdictional Chief Judicial Magistrate or before the concerned
Police Station for being lodged in the jail to suffer the remainder
of the sentence. In case of failure on the part of the accused to
surrender, appropriate action shall be taken up by the concerned
Police Station to arrest the accused for being lodged in the jail.
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The appeals are allowed in part in the aforesaid terms.
……………………………………….J.
(B.V. NAGARATHNA)
……………………………………….J.
(SATISH CHANDRA SHARMA)
NEW DELHI;
JUNE 04, 2025.
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