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2021 DIGILAW 148 (MP)

Santosh v. State of Madhya Pradesh

2021-02-12

VIRENDER SINGH

body2021
JUDGMENT : Virender Singh, J. 1. Being aggrieved by the judgment and order of remand dated 14.03.2019, the petitioners, who are facing trial for the offence under Section 294, 323, 452, 506/34 and 325 IPC have come before this Court. 2. The sole ground taken by the petitioners to get the order of remand set-aside is that the learned appellate Court has directed the trial Court to examine the witness whose name has not been mentioned in the charge-sheet itself, therefore, according to the petitioners, the order of the remand is erroneous, bad in law and deserves to be set-aside. Another ground taken by the petitioners is that they are facing the trial since 2004, therefore, should not be dragged to face the trial again for years together. 3. Learned counsel for the petitioners has placed reliance on the judgment of Fahim Khan vs. State of Bihar reported in (2011) 13 SCC 147 ; wherein, the Hon'ble Supreme Court has held that if the entire evidence is available on record then the appellate Court instead of remanding back the case should have decided it afresh on the basis of same evidence. The appellate Court should make its independent assessment of the material on record and decide the appeal on merits instead of remanding it back. 4. The prosecution case, in brief, is that complainant Ajay Kumar Jain lodged a report against the petitioners on 03.01.2004 that they assaulted him and caused grievous injuries by sticks and kicks & fists. He was taken to the Community Health Centre, Begamganj where Doctor examined him and observed the injuries on several parts of the body. In the opinion of the Doctor, injuries No. 3, 5 and 6 were simple in nature while rest of the injuries caused on the left parietal side of the head and on the back side of the left hand at base of the fingers, he referred the injured for X-ray examination. X-ray was conducted and the report was filed with the charge-sheet showing fracture on 5th metacarpal of left hand. All the petitioners were charged and tried for the offence under Section 294, 323, 452, 506/34 and 325 IPC. X-ray was conducted and the report was filed with the charge-sheet showing fracture on 5th metacarpal of left hand. All the petitioners were charged and tried for the offence under Section 294, 323, 452, 506/34 and 325 IPC. Since charge under Section 452 of IPC was not found proved, the petitioners were acquitted from that charge while the charges under rest of the Sections were found proved and the petitioners were sentenced by the learned Judicial Magistrate First Class as follows: Accused Santosh-Section 325 IPC-1 year RI with file of Rs. 400/-; Section 294 IPC-Fine of Rs. 200/- and Section 506B IPC-Fine of Rs. 400/-. Rest of the accused persons namely Manish, Omkar, Purushottam-Section 323 IPC-3 months SI and fine of Rs. 200/- each; Section 294 IPC-Rs. 200/- each and Section 506-B IPC-Rs. 400/-. 5. Against their conviction and sentence recorded by the Judicial Magistrate First Class, Begamganj vide judgment dated 04.07.2011 passed in Criminal Case No. 75/2004, the petitioner preferred Criminal Appeal No. 96/2011 which was heard and decided by the Second Additional Session Judge, Begamganj vide impugned order dated 14.03.2018. 6. The learned appellate Court observed that before the trial Court, the Doctor who had given X-ray report was not examined and without any proof of X-ray report/plate, it was not possible to held the appellants guilty for the offence under Section 325 of IPC. The learned Appellate Court also observed that examination of the Doctor who had given X-ray report was necessary for the just and proper decision of the case, therefore, the Appellate Court remanded back the case to the Judicial Magistrate First Class with direction to record the statement of the said Doctor and pass a judgment afresh, in accordance with law. 7. It is not disputed that X-ray report was filed with the charge-sheet, though it is also not disputed that the name of the Doctor who had prepared X-ray report has not been mentioned in the charge-sheet but there cannot be two views that the Doctor who was author of the X-ray report was a necessary witness to prove the charge levelled against the petitioners under Section 325 IPC i.e. causing grievous hurt with hard and blunt object. Non-mentioning of his name in the charge-sheet is only an inadvertent mistake, which needs to be cured for just and proper adjudication of the allegations made against the petitioners. 8. Non-mentioning of his name in the charge-sheet is only an inadvertent mistake, which needs to be cured for just and proper adjudication of the allegations made against the petitioners. 8. The judgment cited by learned counsel for the petitioners is distinguishable on facts as in that case, the matter was remanded back to the trial Court to decide it afresh on the same material which was already available on record but in the present case, the petitioners were charged and tried for the offence under Section 325 of IPC and to establish the charge of grievous hurt, proof of X-ray report/plate was sine qua non and to prove the X-ray report, examination of its author was essential. It does not appear to me that the appellate Court has committed any error in directing the trial Court to call and examine the author of the X-ray report and to decide the matter afresh in accordance with law, therefore, the admission is declined and the revision is dismissed accordingly.