Madhya Pradesh High Court
Lavkush Pathak vs The State Of Madhya Pradesh on 4 November, 2016
1 Cr.R.No.2226/2016
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Criminal Revision No.2226/2016
Lavkush Pathak and another
Vs.
State of Madhya Pradesh
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Present:- Hon'ble Shri Justice C.V. Sirpurkar
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Shri Manoj Kumar Pandey, Advocate for the petitioners.
Shri Devendra Shukla, Panel Lawyer for the respondent
/State.
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ORDER
(4-11-2016)
1. This criminal revision has been preferred against judgment dated 8.7.2015 passed by the Court Additional Sessions Judge, Teonthar, District Rewa in Criminal Appeal No.171/2016, whereby the conviction under Section 325 read with Section 34 of the I.P.C. and sentence imposed upon the petitioners/accused persons Lavkush Pathak and Sandeep Kumar Pathak by the Court of Judicial Magistrate First Class, Teonthar, District Rewa in Criminal Case No.116/2011 by judgment dated 28.5.2016, was set aside and the case was remitted back to the trial Court for recording the evidence of two prosecution witnesses and for passing a fresh judgment on merits.
2. The facts giving rise to this criminal revision may briefly be stated thus: Accused persons/petitioners Lavkush Pathak and Sandeep Kumar Pathak were tried by the Court of Judicial Magistrate First Class, Teonthar, District Rewa, for the offence punishable under 2 Cr.R.No.2226/2016 Section 325 read with section 34 of the I.P.C. They were convicted of aforesaid offence by judgment dated 8.7.2015. A sentence of rigorous imprisonment for a period of one year and a fine in the sum of Rs. 1000/- was imposed upon each of them. The petitioners challenged judgment dated 28.5.2016 before the Court of First Additional Sessions Judge, Teonthar, District Rewa. In the judgment dated 8.7.2015, the appellate Court observed that victim Sudama Prasad Pathak had deposed in his evidence that he suffered a fracture in the wrist of his left hand; whereas, PW-5 Nirmala Devi stated that the victim suffered fracture in his thumb. Doctor N.K. Pathak(PW-6) stated that the victim had defused swelling on his left hand and fracture of radius and ulna bone could be felt. Prima facie, the injury on the left hand of the victim appeared to be grievous in nature. However, Dr. N.K. Pathak did not give any definite and clear opinion regarding the nature of injury on the left wrist of the victim. After that, the victim was referred to Sanjay Gandhi Hospital, Rewa. He was medically examined there but the discharge summary, M.L.C. Report X-ray plate and X-ray report were not proved by summoning the concerned doctor. X-ray report was not admissible in evidence without being duly proved by the concerned doctor. From Sanjay Ghandhi Medical College, Rewa, the victim was referred to Medical College, Jabalpur; however, the Radiologist of Medical College was also not examined. In the list of witnesses, name of Dr. S.K. Pathak, Sanjay Gandhi Medical College, Rewa and the name of Dr. Gajanan, Medical College, Jabalpur were mentioned, however, none of the aforesaid two witnesses were examined by the trial Court. These witnesses were crucial for the purpose of proving the nature of the injury on left wrist 3 Cr.R.No.2226/2016 of the victim. Thereafter, citing certain authorities, the appellate Court held that documents relating to the nature of the injury were not duly proved by examining expert witnesses; therefore, those documents were not admissible in evidence. Consequently, conviction of the petitioners/accused persons under Section 325 read with Section 34 of the I.P.C. could not be affirmed.
3. Consequently, without considering the judgment of conviction dated 28.5.2016 passed by the learned Magistrate on merits, the same was set aside in the absence of examination of Radiologist and the matter was remitted back to the trial Court for examining Dr. S.K. Pathak and Dr. Gajanan and thereafter for decision of the case on merits afresh.
4. Learned counsel for the petitioners has assailed impugned judgment dated 8.7.2015 mainly on the ground that the order was illegal because the powers of the appellate Court could not be exercised for the purpose of filing up the lacuna in prosecution evidence. It has also been contended that the order would result in undue hardship for the petitioners.
5. Learned panel lawyer for the respondent/State has supported the impugned order.
6. It may be noted that learned Additional Sessions Judge has not indicated in the impugned judgment the provision of the Code of Criminal Procedure under which it directed the examination of additional witnesses but learned Additional Sessions Judge has only remitted the case for the purpose of examination of two specified prosecution witness namely Dr. S.K. Pathak and Dr. Gajanan. It has not been observed that the deposition of other witnesses shall stand 4 Cr.R.No.2226/2016 erased from the record. Thus, it may safely be concluded that learned Additional Sessions Judge had not ordered a re-trial. As such, it is obvious that the power of directing a re-trial vested in the appellate Court by virtue of Section 386 (b) (i) was not exercised. The appellate Court intended that the evidence earlier recorded at the trial, shall remain on record but the trial Court shall examine two more witnesses and shall, thereafter, pass the judgment afresh. In aforesaid circumstances it appears that appellate Court intended to exercise the powers vested in it under Section 391 of the Cr.P.C.
7. A five Judge Bench of the Supreme Court in the case of Ukha Kolhe Vs. State of Maharashtra, AIR 1963 SC 1531 has held that an order of re-trial wipes out earlier proceedings and exposes the persons, accused to another trial which affords the prosecutor another opportunity to rectify the infirmities disclosed in earlier trial which would not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but had not cared to lead either on account of insufficient appreciation of nature of the case or or for other reasons. On the other hand, if the evidence led at the trial is deficient in important respects that is not a sufficient ground for ordering re-trial. If the appellate Court thinks that additional evidence is necessary in the interest of justice and for a just and proper decision of the case, the appellate Court should, instead of directing a re-trial, exercise its powers under Section 428 (1) of the Code of Criminal Procedure (old).
8. The Gauwahati High Court, in the case of Chandralal Das and others vs. State of Tripura, 2003 Cr.L.J. 2162 has held that the Appellate Court has the power to remand the matter for re-trial, 5 Cr.R.No.2226/2016 meaning thereby, retrial of the entire matter afresh. There is no scope for any direction for examination of the witnesses etc. in passing the remand order. If the Appellate Court thinks that any additional witness is necessary for proper adjudication of the case in hand it has to fall back upon the provision of S. 391 of Cr. P. C. which has clearly envisaged for taking further evidence by the Appellate Court or empowering the Appellate Court to give direction to the Court below for taking necessary additional evidence, if so required. The Appellate Court has two options either (1) it may remand the case for re-trial afresh on hearing the appeal against conviction; or (2) it may direct the court below to record additional evidence, if necessary and thereafter to send the matter before the Appellate Court which on receipt of the evidences so recorded afresh by the court below, shall proceed to dispose of the appeal. Once a retrial is permitted by the Appellate Court, the evidence already on record is deemed to be obliterated off from the record. More so, the power of retrial should be exercised only in exceptional cases where the Appellate Court is satisfied that the Court trying the case lacks jurisdiction or trial has been vitiated due to certain serious irregularities or illegalities.
9. When we examine the impugned judgment in the light of aforesaid legal position, we find that appellate Court has observed that in order to record conviction under Section 325, examination of aforesaid two witnesses was necessary. It may be noted that if due to carelessness or ignorance, if the statement of aforesaid two witnesses could not be recorded, the appellate Court had jurisdiction either to record the statements of those two witnesses on its own or to direct examination of those witnesses by the trial Court (please see Zahira 6 Cr.R.No.2226/2016 Habibullah Sheikh Vs. State of Gujrat, AIR 2004 SC 3114). In the opinion of this Court, the appellate Court had sufficient grounds for directing the examination of aforesaid two witnesses. The course adopted by the appellate Court would not result in filing up of lacuna in prosecution case but would sub-serve the interest of justice.
10. However, the appellate Court grievously erred in directing the trial Court to pass judgment afresh after recording the statements of aforesaid two witnesses. Under Section 391 of the Cr.P.C., such a course is not permissible. The appellate Court ought to have retained the se-sin of the case and should have directed the trial Court to certify the evidence recorded by it back to the appellate Court. After receiving of such additional evidence, it would be the duty of the appellate Court to proceed to dispose of the appeal. The direction to the trial Court to pass judgment afresh was grossly illegal and cannot be allowed to prevail. The same is required to be modified accordingly.
11. On the basis of foregoing discussion, the operative portion of the impugned judgment stands modified as hereunder:
The trial Court shall examine Dr. S.K. Pathak, Sanjay Gandhi College, Rewa and Dr. Gajanan, Medical College, Jabalpur. The accused persons/petitioner or their pleader shall have the right to be present when the additional evidence is taken. Recording of evidence shall be subject to the provisions of Chapter XXIII of the Code of Criminal Procedure. After additional evidence is taken, the trial Court shall certify such evidence to the appellate Court. Thereupon, the appellate Court shall proceed to dispose of the appeal, which shall remain pending before the appellate Court till then.
12. This criminal revision stands disposed of accordingly.
7 Cr.R.No.2226/2016(C.V. Sirpurkar) Judge ahd 8 Cr.R.No.2226/2016 HIGH COURT OF MADHYA PRADESH : AT JABALPUR Criminal Revision No.2226/2016 Lavkush Pathak and another Vs. State of Madhya Pradesh ORDER Post for : /11/2016 (C.V.Sirpurkar) Judge