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2008 DIGILAW 311 (RAJ)

Ram Swaroop v. State of Rajasthan

2008-01-31

NARENDRA KUMAR JAIN

body2008
JUDGMENT 1. - Heard learned counsel for the parties. 2. The petitioner has preferred this revision petition under Section 397 read with Section 401, Cr.P.C. against the impugned judgment and order dated 11.03.2003 passed by the Additional Sessions Judge, Hinduan City, in Criminal Appeal No. 08/2003, whereby the said Court allowed the appeal of the petitioner and set aside the impugned judgment passed by the trial Court and directed the trial Court to record the statements of the prosecution-witnesses, whose names appear at serial nos. 2, 7 and 9 in the list of witnesses and to decide the matter afresh. 3. Learned counsel or the petitioner submits that the petitioner was convicted and sentenced by the trial Court under Section 279, IPC to three-years simple imprisonment and a fine of Rs. 500/- and under Section 304, IPC to one-year simple imprisonment and a fine of Rs. 2000/-. Being aggrieved with the order of conviction, the petitioner preferred an appeal. It is further contended that the accused never agreed before the Appellate Court for examining the witnesses, whose names appear at serial nos. 1, 7 and 9 in the list of witnesses and he wanted to argue the case on merit on the basis of evidence available in the case. The Appellate Court committed an illegality in issuing the said direction to the trial Court in absence of statement of Investigating Officer, who had died, instead of giving benefit to the accused. 4. It is further contended by the petitioner that this was an appeal before the Appellate Court against an order of conviction and no adverse order could have been passed against the appellant in the said appeal. Issue of direction to record the statements, in his view, amounts to fill-up the lacunae of the prosecution witnesses and the same is adverse to the petitioner, therefore, he contended that the said order of remand passed by the Appellate Court be set aside and the Appellate Court be directed to hear and decide the appeal on the basis of evidence available on the record. 5. Learned public prosecutor for the State has not seriously opposed the prayer of the learned counsel for the petitioner. 6. 5. Learned public prosecutor for the State has not seriously opposed the prayer of the learned counsel for the petitioner. 6. I have heard the learned counsel for the parties and examined the impugned order dated 11.03.2003 passed by the Appellate Court and in my view the Appellate Court committed an illegality in passing an order of remand, directing the trial Court to record the statements of the witnesses, whose names appear at serial nos. 2, 7 and 9 in absence of investigating officer of the case, who died during trial of the case. 7. The appeal against the order of conviction is preferred under Section 374, Cr.RC. The powers of the Appellate Court have been laid down under Section 386, Cr.RC., wherein it is provided that after perusing such record and hearing the appellant or his pleader, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may - in an appeal from a conviction - reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or alter the finding, maintaining the sentence, or with or without altering the finding, alter the nature of the extent, or the nature and extent, of the sentence, but not so as to enhance the same. 8. The accused-petitioner was convicted by the trial Court under Section 279 and 304-A, IPC and an appeal before the Appellate Court was against an order of conviction. 9. The Appellate Court has acted contrary to the provision of Section 386, CR.RC. It was for the prosecution to examine the investigation officer in the case and in case he had died, then to examine other prosecution witnesses in his absence. In case, the prosecution failed to examine other witnesses, in absence of investigating officer, who had died, then it was for the prosecution to examine or not to examine other witnesses. The prosecution was at liberty to argue on the basis of evidence available on record that the charge is fully proved against the accused. If the appellate Court was of the view that the non-examination of certain prosecution witnesses have adversely affected the case of accused, then it would have given the benefit of it to the accused. The prosecution was at liberty to argue on the basis of evidence available on record that the charge is fully proved against the accused. If the appellate Court was of the view that the non-examination of certain prosecution witnesses have adversely affected the case of accused, then it would have given the benefit of it to the accused. In my view, the order passed by the Appellate Court is absolutely illegal and without jurisdiction and the same is liable to be set aside. 10. Consequently, this revision petition is allowed. Impugned judgment dated 11.03.2003 passed by the Additional Sessions Judge, Hindaun City is set aside. The Additional Sessions Judge, Hinduan City is directed to ear and decide the appeal on merits on the basis of evidence available on record. 11. The petitioner is directed to appear before the Additional Sessions Judge, Hindaun City on 29.02.2008. 12. Registry is directed to send the record of both the Courts below to the Court of Additional Sessions Judge, Hindaun City immediately.Petition allowed. *******