Jagdish Parshad Sharma vs State of H.P. Biri Singh Vs State of H.P. and Another

Dev Darshan Sud, J.—Both these revision petitions are disposed of by a common judgment. These petitions arise out of the judgment of the learned Additional Chief Judicial Magistrate, Sarkaghat sentencing both the petitioners. The petitioners herein were convicted for offences under Sections 420, 465, 468 and 120B I.P.C.

An appeal was preferred before the learned Additional Sessions Judge, Mandi, who by his order merely disposed of the appeals with a cryptic order holding that one Om Parkash, Numberdar never existed. In fact, the learned appellate Court holds that this Om Parkash, Numberdar was not in existence and, therefore, the mutation which has been attested (Ext.PW6/B) is the outcome of conspiracy and fraud by the petitioners.

I find that the learned appellate Court is in complete error in assuming this fact. Aside from the fact that he does not consider the other grounds urged by the appellant, his assumption that it was Om Parkash, Numberdar, who identified the person claiming the mutation, is not correct. The recording is "Om Parkash Vashnakhat Numberdar Deh" but the name of the Numberdar has not been mentioned. In these circumstances, the assumption of fact by the appellate Court is totally incorrect.

Learned Counsel appearing for the petitioner relies upon the decision of the Supreme Court in Ramesh Dutt and Others Vs. State of Punjab and Others, and Gian Parkash v. State of Haryana, 2008(4) Cri.CC 92 (P&H) to urge that even if the acts as imputed to the appellants are proved, no criminal offence has been established on the record. I am not entering into this controversy nor am I pronouncing on the applicability of the judgment to the facts of this case. What I hold is that the learned appellate Court, after considering only the existence of Om Parkash as a Numberdar, has disposed of both these petitions.

In these circumstances, it is a fit case in which, the case is ordered to be sent for re-trial. The judgment of the learned appellate Court is set aside and the case is sent for re-trial to the learned Additional Sessions Judge, Mandi. It is directed that the appeal of the petitioners shall be heard on all the points urged by them. The order has been necessitated by the fact and this Court cannot re-appreciate the entire evidence and that it is the duty of the appellate Court to assess, appreciate the evidence on record and then arrive at a finding. Considering the fact that the trial commenced in the year 1995 and now after a period of fifteen years, this Court has been constrained to send the case back for the reason that the learned appellate Court has been remiss in performing its mandatory duty under the law of taking care of each and every grounds urged before it. Let the record of both the cases be sent to the learned Sessions Judge, Mandi forthwith.

Parties are directed to appear before the learned Court on 10th November, 2010. Further direction is issued to the learned Sessions Judge that since the old case which shall be disposed of not later than 31st March, 2011.These petitions are accordingly disposed of.