Hari Singh vs State of M.P.

K.M. Pandey, J.

This revision has been preferred against the judgment and order dated 8-7-86 passed by Shri H.C. Jain. Third Additional Sessions Judge. Morena, in Cr. Appeal No. 155/x4 whereby he has set aside the judgment and order of conviction and sentence u/S. 394 I.P.C. dated 22-11-84 recorded by the Magistrate and remanded the case for retrial with certain directions.

The brief facts of the case are that the complainant''s aunt aged 60 years wanted to ge to her parents'' house He told her that he will be able to do so when he will be free from his agricultural work. It is said that in the meantime on 30-11-82 at about 4 P.M. the petitioner carried Kunwarde on the pretaxt of taking her to her parents'' house. He is alleged to have taken her to a field and robbed her there of her silver ornaments, namely Chura, from her hands and feet and thereafter threw her away into a well. Some persons were attracted by the sound coming from the well, peeped into it and called Laxman and other people who took out Shrimati Kunwarde, who then narrated the story. A report was lodged at the P.S. Joura on 2-12-82 and a case u/S 394 IPC was registered On 4-12-82 the petitioner was arrested and on his information the stolen articles were recovered. On. 3-12-82 test identification was head by Sarpanch Ratanlal Dubey, Laxman and Gyasia identified the said articles. During the trial the petitioner pleaded false implication. The learned trial Court relted on the prosecution witnesses and convicted the petitioner u/S 39 IPC and sentenced him to three years R.1. and a fine of Rs. 500/-. On appeal preferred by the petitioner the learned Additional Sessions judge held that (1) the Prosecution should have examined P.W. Ratanlal Dubey who had conducted the test identification (2) prosecution and the Court should have got the seized articles identified in Court by the witnessecand (3) the Court should have considered whether on the fans of the case a charge u/S. 307 IPC was made. With these directions the learned Additional Sessions Judge remanded the case. Aggrieved by the said order the present revision has been filed.

It is contended that the Additional Sessions Judge travelled beyond the scope of powers conferred on an appellate Court u/S 386 (b Cr. P.C. By the impugned order the appellate Court has tried to get the lacuna of the prosecution case filed. The appellate Court should have decided the appeal on the basis of the evidence on record.

The only point argued before me was that the appellate Court had travelled beyond its jurisdiction and beyond the powers conferred on an appellate Court u/S. 386 (b) Cr. P.C. in remanding the case for a limited purpose, There appears to be some substance in the contention of the appellant that the learned appellate Court has travelled beyond its jurisdiction and beyond the scope or powers conferred on an appellate Court u/S. 386 (b) Cr. P.C. No doubt Section 386 (b) empowers the appellate Court to aquit or discharge the accused or order him to be re-tried rut that does not mean that the appellate Court can give a direction to the trial Court to admit such evidence which is prejudicial to the interest of the accused or to direct to admit such evidence which was not on record and which is intended to fill up the lacuna. "I here is no room for doubt that the prosecution had committed an error in not getting the ornaments to be put to test identification. The property of the complainant and the person of ten accused should have been put to test identification in order to fix the identity. Its identification is a part of investigation. By passing the impugned order the learned appellate Court has allowed the prosecution to admit such evidence in the form of re-trial which was certainly against the interest of the accused and the scope of (sic). 386 (b) Cr. P.C. does not permit it. The order of the appellate Court therefore, suffers from this illegality and the appeal has force. It was not open to the appellate Court to have directed for identification of the property or person. As said earlier, this is a part of investigation and it should have been completed before the charge sheet was submitted in Court By making this order the learned Additional Sessions Judge has not only given an opportunity to the prosecution to fill up the weak spot of the prosecution case but also put the case to the stage of investigation Certainly this was not open to the Judge while exercising his powers u/S. 386 b) Cr. P.C. A miscarriage of justice has taken place. The order is definitely prejudicial against the interest of the appellant

The result is that the impugned order of the first appellate Court deserves to be set aside. The order dated 8-7-86 is set aside The revision is allowed. The conviction and sentence recorded by the trial Court is restored

Order dt. 13-11-9.

Shri Rakesh Saxena, Counsel for the petitioner.

Shri S.B. Mishra, Govt. Advocate, for the State

I.A. No. 1/91

This petition has been moved u/S. 48 of the Cr. P.C. for correcting a mistake that has crept in the order dated 24-10-91. I have heard the petitioners Counsel and the Counsel for the State.

The brief facts of the case are that Criminal revision No. 124/86 was heard and decided by this Court and the procedure adopted by the first appellate Court was disapproved and a positive finding was given by this Court that a miscarriage of justice had taken place and the order was definitely prejudicial against the interest of the appellant The facts are that in exercise of appellate jurisdiction Shri H.C. Jain, Third Additional Sessions Judge, Morena, had set aside the judgment and order of conviction and sentence and remanded the case to the trial Court with certain directions The learned Judge had directed that the trial Court should give an opportunity of hearing to the accused to consider whether any case u/S (3)7 IPC was made out or not and if the Court is of the opinion that if any case is made out exclusively triable by the Sessions Court, then it is free to commit the case. The trial Court was further given permission to admit additional evidence. Not only this, it was also directed that identification be got done of the seized property and the statement of Sarpanch Ratanlal Dubey be recorded This Court had disagreed with these directions of the appellate Court because the lacuna in the prosecution case was not to be filled up in this way Moreover, conducting identification proceedings at this stage was not permissible. Identification is a part of investigation, fathat was not done at the right stage, then it was not open to the appellate Court to admit further evidence and ask the Magistrate to get the identification of the Property or person done at this stage, in the order dated 24-10-91 the order of the appellate Court was set aside and a positive order was passed and the revision was allowed. But at this stage a mistake seems to have crept in the judgment. The last sentence of the order is that the conviction and sentence recorded by the trial Court is restored This means, the petitioner although having been acquitted by the appellate Court itself has been convicted by this Court. The entire order of that date does not show that it was ever thought of to restore the conviction of the petitioner. 1 disagreed with the directions given by the appellate Court that further evidence may be admitted and identification of the seized property be got done This will not lead to unnecessary confusion that the Court intended to restore the order of conviction While dictating the judgment it appears to be a slip of tongue that the last sentence of the order also found its place in the impugned order which is not intended The mistake can be corrected Let the last sentence of the order, namely. "The conviction and sentence recorded by the trial Court is restored" be struck of and it will not be deemed to be a part of the order. The petition is, therefore, decided accordingly. The case be decided on the basis of the evidence already on record