NANDA v. STATE OF RAJASTHAN — 1988 DIGILAW 687 (RAJ)

Judgment 8. 8. BYAS, J. ( 1 ) THE eight appellants viz. Nanda, Padan, Prahlad, Birdbi; Manna, Ballabh, Khema and Surajmal have been convicted under sections 302/149, 148 and 449, I. P. C. and each has been sentenced to imprisonment for life with a fine of Rs. 100/-under sections 30. 2/ 149 I. P. C. and to various other terms of imprisonment under the remaining two sections, by the Additional Sessions Judge No. I, Kota by his judgment dated May 31, 1988. They have filed this joint appeal and challenged their convictions. ( 2 ) AT about 1. 30 P. M. on 5. 3. 1985, P. W. 1 Jamna Bai appeared at police station Kanwas, district Kota and verbally lodged report Ex. P-i. It was stated therein by her that at about 8 or 9. 00 A. M. on that day the appellants accompanied with Bhura and Ram Gopal went to the house of Sbaitan situated in village Khodiya-Khedi to find out whether Devi Lal was there or not. Devi Lal was not found there. The culprits made an assault on Shaitan. Shaitan took shelter in his house. The culprits however, did not leave, him and went behind him. They forcibly brought him out and inflicted blows with Gandasies, Lathies etc. Sbaitan fell down. Meanwhile, Babu came there to intervene. The culprits did not pare him also. Babu took shelter in the house of one Chaturbhuj and closed the shutters of the door. The culprits broke open the door and inflicted blows to Babu. As a result of beating, Shaitan and Babu did not survive and passed away. The police registered a case under Section 302, I. P. C. and proceeded with the investigation. After usual investigation, the police presented a challan against the eight appellants and Bhura and Ram Gopal in the court of Munsif and Judicial Magistrate, Sangod, who in his turn committed the case for trial to the court of Sessions the case came up for trial before the Additional Sessions Judge No. 1 Kota, who framed charges u/secs. 147, 149, 449 and 302/149, I. P. C. against the appellants and Bhura. Ram Gopal was found to be a child and his case was therefore, referred to the children court. Bhura passed away during the pendency of trial. The appellants refuted the charges and claimed absolute innocence. 147, 149, 449 and 302/149, I. P. C. against the appellants and Bhura. Ram Gopal was found to be a child and his case was therefore, referred to the children court. Bhura passed away during the pendency of trial. The appellants refuted the charges and claimed absolute innocence. In support of its case, the prosecution examined 18 witnesses and filed some documents. In defence, one witness was examined. On the conclusion of trial, the learned Additional Sessions Judge held the charges duly brought home to the appellants. They were consequently convicted and sentenced as mentioned at the very outset. Aggrieved against their convictions and sentences the convicts have taken this appeal. ( 3 ) WE have heard learned counsel for the appellants and the learned Public Prosecutor. We have also gone through the case file carefully. ( 4 ) LEARNED counsel for the appellants launched a blistering attack on the judgment of the court below and contended that it was no judgment in the eye of law. It was argued that the judgment was in clear violation and contravention of the provisions of Sections 354 Cr. P. C. No reasons have been advanced by the learned Additional Sessions judge as to how he took: the offences proved against the appellants. No evidence of the witnesses has been discussed. Section 354, Cr. P. C. requires that the judgment shall contain the points for determination, the decision thereon and the reasons for the decision. The impugned judgment contains no reasons at all. It was further argued that this defect is not curable under section 465, Cr. P. C. The illegality committed by the Addi. Sessions Judge goes to the very root and vitiates the entire judgment. It was prayed that the impugned judgment be set aside and the case be remitted back to the trial court for rewriting of the judgment. It was argued that Section 386, Cr. P. C. gives power to the appellate court for remitting the case for re-writing of the judgment. Learned Public Prosecution had a difficult situation to meet. He frankly conceded that the impugned judgment does not fulfil the requirements of Section 354, Cr. P. C. and it was bad on account of not recording the reasons for conviction. He also conceded that the evidence of the prosecution eye witnesses has not been assessed, evaluated and sifted. Learned Public Prosecution had a difficult situation to meet. He frankly conceded that the impugned judgment does not fulfil the requirements of Section 354, Cr. P. C. and it was bad on account of not recording the reasons for conviction. He also conceded that the evidence of the prosecution eye witnesses has not been assessed, evaluated and sifted. The submission of the learned Public Prosecutor, however is that this court has no power to remit the case to the trial court for rewriting of the judgment under Section 386 or under any other section of the Criminal Procedure Code. It was argued that this court hearing the appeal under Sec. 386 is empowered to hear the appeal on facts. This court should, therefore, read the entire evidence, make its appreciation of the evidence and decide the case on merits. ( 5 ) THE question involved is quite interesting as there is no pronouncement of this court on this point. The clinching question before us is whether this court under Section 386 or any other section of the Criminal Procedure Code can set aside the judgment and remit the case back to the trial court for rewriting of the judgment. The question is a baffling one and there are conflicting views on the point. ( 6 ) SECTION 386 of the new Code corresponds to Section 423 of the Code of 1898 with some modifications. One view taken by some High Courts of the country is that under Section 386 the appellate court has no power to remit a case for writing out a proper judgment. Where there is no properly written judgment, the duty of the appellate court is to examine and go into the whole facts fully and dispose of the case. It is not proper to remand the case for fresh decision in accordance with the law. This view has been expressed by the High Courts of Calcutta in (1906) 3 Cr. L J. 1191 and Patna in 1968 Cr. L. J. 15242. The other view is that where the trial court has not written a judgment in confermity with the provisions of Section 354 (Section 367 of the old Code) it is open to the appellate court to remand the case with directions for hearing denovo and writing a fresh judgment in accordance with the provisions of Section 354, Cr. The other view is that where the trial court has not written a judgment in confermity with the provisions of Section 354 (Section 367 of the old Code) it is open to the appellate court to remand the case with directions for hearing denovo and writing a fresh judgment in accordance with the provisions of Section 354, Cr. P. C. This view has been shared by the High Courts of Orissa, Madras. Sindh and Allahabad in A. I. R. 1969 Orissa 753, 1972 Cr. L J. 403 A. I. R. 1920 Mad 171, 1975 Cr. U. 15556, A. I. R. 1940, Sindh 113 and (1912) 13 Cr. L. J. 8598. The reasoning adopted in these decisions is that a judgment not in conformity with the provisions of section 354, Cr. P. C. is a nullity. The omission of recording reasons for a finding is a defect, which goes to the root of the matter and is not curable under section 465, Cr. P. C. ( 7 ) WE have given our thoughtful consideration to the rival views and submissions. Section 354, Cr. P. C. speaks about the contents of judgment. This section is a combination of Sections 367 and 368 of the Criminal Procedure Code of 1898. It lays down in clause (b) of sub-section (i) that the judgment shall contain the points for determination, the decision thereon and the reasons for the decision. The recording of reasons is an essential requirement because the recording of reasons can alone show whether the court has applied its mind to all the facts and circumstances relevant to the points in dispute. Recording of reasons necessarily implies the appreciation and consideration of evidence. In a contested case e. g. where the accused does not plead guilty the absence of recording of reasons in itself is sufficient to show that the evidence of the parties has not been assessed, evaluated, sifted and scrutinised. A judgment written in a proper manner containing reasons for findings by the trial court is of considerable help to the appellate court. We may point out that according to the settled norms when a finding of fact is based upon the credibility of evidence, the view of the trial court is entitled to great weight and is not lightly interfered with in appeal. We may point out that according to the settled norms when a finding of fact is based upon the credibility of evidence, the view of the trial court is entitled to great weight and is not lightly interfered with in appeal. That being the position, it is all the more necessary for the trial court that reasons should be recorded for decision by it. A judgment which does not fulfill these basic and essential requirements is not only a defective or cryptic judgment, it is in fact no judgment in the eye of law. It is only the reasons in the judgment which enable the appellate court of judge the correctness, legality and propriety of the findings. The absence of reasons is not a mere irregularity but a patent illegality, which in our opinion, cannot be cured under section 465, Cr, P. C. ( 8 ) WE may next deal with the powers of the appellate court as to whether the appellate court can remit a case for writing a judgment in I he proper manner in accordance with the provisions of section 354, Cr. P. C. It would be useful to read Section 386 (b) (i), Cr. P. C. , which runs as under; The appellate court may (a) (b) in an appeal from a conviction. . . . (i) reverse the finding 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. The use of the expression order him to be retried in our opinion authorises the appellate court to order a remand. The power of remand is thus implicit in the expression order him to be retried. The retrial should generally be ordered from the stage where an illegality has been committed. The word retried in our opinion vests a discretion in the appellate court to order the retrial from that particular stage where the illegality has occurred. ( 9 ) FOR the reasons recorded above, we are unable to subscribe the view taken by the High Courts of Calcutta and Patna, we share the view taken by the High Courts of All aha bad, Orissa, Sindh and Madras. ( 10 ) IN the instant case, the judgment is highly defective and is clearly violative of the requirements of Section 354, Cr. ( 10 ) IN the instant case, the judgment is highly defective and is clearly violative of the requirements of Section 354, Cr. P. C. As many as eight accused persons have been convicted. The evidence of the eye witnesses has not at all been discussed, sifted or evaluated. Where more than one accused is there, the evidence in respect of each of them should be scrutinised and sifted. Learned Additional Sessions Judge did not take the trouble even to make a reference to the evidence of the eye witnesses. He has not at all discussed as to what is the evidence of the eye witnesses, whether it stands to credibility and should or should not be accepted. In addition to the accused-appellants, two more culprits, namely Kalu and Smt. Ram Bharoshi have been implicated by the eye witnesses. The role assigned to the appellants by the prosecution witnesses has not been discussed at all. The judgment of the trial court is thus completely violative and repugnant to the provisions of Section 354, Cr. P. C. We have no alternative other than that of remitting the case with the direction to rehear the parties and decide the case afresh. ( 11 ) IN the result, we allow the appeal and set aside the impugned judgment of the learned Additional Sessions Judge No. 1, Kota dated May 31, 1988. The case is remitted back to him with directions to hear the arguments of the parties arid thereafter dispose of the case afresh keeping in view the observations made above by us. ( 12 ) THE record of the trial court be at-once sent to it with the copy of this order. The case will be taken up in hearing by the learned Additional Sessions Judge No. 1 Kota on 4. 10. 1988. Appeal allowed.