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2011 DIGILAW 1086 (RAJ)

Bhanwar Singh v. State of Rajasthan

2011-05-20

R.S.CHAUHAN

body2011
JUDGMENT 1. - Aggrieved by the judgment 09.06.2009, passed by the Additional Sessions Judge (Fast Track) No.2, Pali, whereby the learned Judge has set aside the judgment dated 29.03.2007, passed by the Additional Chief Judicial Magistrate, Pali and has remanded the case back to the learned Magistrate after allowing the application filed under Section 391 Cr.P.C., the petitioner has approached this Court. 2. The brief facts of the case are that on 16.07.1992, the Parcha Bayan (Ex-D/1) of Ram Singh, the complainant, was recorded by the SHO, Police Station Kerala, Pali, wherein he claimed that in the morning at 6:30 AM, he had gone to answer the call of nature. While he was completing his morning abulation, he was assaulted by Amar Singh and Bhanwar Singh. While Bhanwar Singh was standing slightly away, Amar Singh caught hold of his neck and threw him down. Amar Singh pulled out a knife from his pocket, and while he was pined him down, he assaulted upon his face, nose, eyes and ears. Despite his shouting for help, on one came to his rescue. After the assault, both Amar Singh and Bhanwar Singh ran away. Once, he returned back to his house, his brother Mohan Singh rushed to the police to lodge a report. 3. On the basis of the said Parcha Bayan, a formal FIR was registered for offences under Sections 323, 324, 326 and 307/34 IPC. Subsequently, a charge-sheet was submitted against Bhanwar Singh, the present petitioner, and Amar Singh. In order to support its case, the prosecution has examined thirteen witnesses and submitted twelve documents. In defence, the accused-persons examined three witnesses. After going through the oral and documentary evidence, vide judgment dated 29.03.2007, the learned trial court acquitted the present petitioner and Amar Singh. It is pertinent to point out that during the course of trial, an application had been moved by the petitioner praying inter alia that Rojnamcha with regard to the case be produced before the learned court. However, the prosecution pointed it out to the learned trial court that the said Rojnamcha had been weeded out. Thus, it cannot be produced before the court. Therefore, the application filed by the petitioner was dismissed as infructuous. Further, aggrieved by the judgment dated 29.03.2007, acquitting the present petitioner and Amar Singh, the State filed an appeal before the learned Judge. Thus, it cannot be produced before the court. Therefore, the application filed by the petitioner was dismissed as infructuous. Further, aggrieved by the judgment dated 29.03.2007, acquitting the present petitioner and Amar Singh, the State filed an appeal before the learned Judge. During the pendency of the appeal, the State also moved an application under Section 319 Cr.P.C. inter alia on the ground that the certified / verified copy of the Rojnamcha dated 16.07.1992 is, indeed, available in the file of the Public Prosecutor. Therefore, they would like to produce the said document on record. Vide judgment dated 09.06.2009, the learned Judge not only allowed the said application, but quashed and set aside the judgment dated 29.03.2007 and remanded the case back to the learned trial court with the direction that the certified copy of the Rojnamcha shall be taken on record and the trial court shall examine Mohan Singh, Samandar Singh and one more constable as witness in support of the Rojnamcha. Hence, this petition before this Court. 4. Relying on the case of Pandit Ukha Kolhe v. The State of Maharashtra, AIR 1963 SC 1531 , Mr. Deepesh Beniwal, the learned counsel for the petitioner, has contended that ordinarily a re-trial should not be ordered in order to permit the prosecution to fill up the lacunae in its case; instead, the learned Judge should have invoked its power under Section 391 Cr.P.C. and should have taken the evidence by himself. Secondly, since the judgment dated 29.03.2007 has been quashed and set aside, it would tantamount to the petitioner having to face a denovo trial. Thirdly, since a certified copy of the Rojnamcha is being submitted, the petitioner would not be able to challenge the same. 5. On the other hand, Mr.Anil Upadhayay, the learned Public Prosecutor and Mr. Vinit Jain, the learned counsel for the respondent No.2, have contended that the learned Judge has merely directed the trial court to reexamine Mohan Singh, Samandar Singh and to examine any other witness concerning the Rojnamcha. Therefore, the learned Judge has not ordered a denovo trial. Moreover, according to the learned counsel, Section 391 Cr.P.C. empowers the learned Judge to remand the case back and to direct the Magistrate to take the necessary evidence. Hence, according to the learned counsels, the power under Section 319 Cr.P.C. has rightly been exercised. Therefore, the learned Judge has not ordered a denovo trial. Moreover, according to the learned counsel, Section 391 Cr.P.C. empowers the learned Judge to remand the case back and to direct the Magistrate to take the necessary evidence. Hence, according to the learned counsels, the power under Section 319 Cr.P.C. has rightly been exercised. Lastly, according to the learned counsels, the contentions raised by the learned counsel for the petitioner are misplaced as it is the petitioner himself who had wanted to bring the Rojnamcha on record. Therefore, the petitioner possibly cannot be aggrieved by the impugned judgment. Moreover, in case the evidence were to be taken by the appellate court and in case the appellate court were to pass its judgment, the petitioner, in fact would lose a chance to file an appeal. 6. Heard the learned counsel for the parties, perused the impugned judgment and considered the case law cited at the Bar. 7. Section 391 Cr.P.C. reads as under: 391. Appellant Court may take further evidence or direct it to be taken.- (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or, when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry. 8. Section 391 Cr.P.C. enables the appellate court to take an additional evidence, if necessary. The evidence may be taken either by itself, or by a magistrate. In case the appellate court happens to be the High Court, the said evidence can be taken either by the court of Sessions or by a Magistrate. Once the additional evidence is taken either by the court of Sessions or by the Magistrate, the court or the Magistrate shall certify such evidence to the appellate court. In case the appellate court happens to be the High Court, the said evidence can be taken either by the court of Sessions or by a Magistrate. Once the additional evidence is taken either by the court of Sessions or by the Magistrate, the court or the Magistrate shall certify such evidence to the appellate court. Upon receiving the evidence from the court of Sessions or the Magistrate, the appellate court shall proceed to dispose of the appeal. 9. A bare perusal of the impugned judgment clearly reveals that while directing the learned trial court to take the document on record and while directing it to reexamine Mohan Singh, Samandar Singh and to examine any other witness concerned with the Rojnamcha, the learned Judge has quashed and set aside the judgment dated 29.03.2007. 10. A bare perusal of Section 391 Cr.P.C. clearly reveals that while directing the learned Magistrate to record additional evidence, there is no need for the appellate court to quash and set aside the judgment of the trial court. In fact, the appellate court is required to wait till the additional evidence is recorded by the learned Magistrate and till it receives the said evidence from the learned Magistrate and then proceed further to dispose of the appeal. Thus, apparently the learned Judge has overstepped his jurisdiction. 11. This Court has been informed that the evidence has already been recorded by the learned trial court after re-examining Mohan Singh, Samandar Singh and any other witness. Thus, in the light of these facts, the impugned judgment dated 09.06.2009 is modified to the extent that the additional evidence recorded by the learned trial court shall be certified to the learned appellate court. The appellate court is directed to consider the additional evidence and to proceed to disposed of the appeal. 12. With these observations, this petition is, hereby, disposed of.Petition disposed of. *******