Khushi Ram and anr. vs State of Haryana

S.K. Jain, J. (Oral)

Vide his judgment of conviction and order of sentence, both dated 28.4.1988, Judicial Magistrate 1st Class, Karnal convicted Khushi Ram and Parshotam Dass, petitioners herein under Sections 325/34 IPC and ordered each of them to undergo R.I. for a period of three years under Section 325 IPC and S.I. for 3 months under section 323 I.P.C. Both the sentence were, however, ordered to run concurrently.

Feeling aggrieved, the petitioners had filed Criminal Appeal No. 21 of 1988 which was heard by Additional Session Judge, Karnal. Vide his order dated 13.5.1988, he accepted the appeal, set aside the judgment of conviction and of sentence and remanded the case to the learned trial court with a direction to recall Dr. Sachdeva, P.W.5, reexamine him, afford an opportunity to the accused to cross examine the said witness, record the statements of the accused under Section 313 Cr P.C., allow them a further opportunity to lead defence evidence, if any, and then decide the case afresh.

The said order of the learned Additional Sessions Judge has been impugned before this Court in this revision petition. The argument of the learned counsel for the petitioners is twofold :

(i) He has submitted that the learned Additional Sessions Judge had nopower to remand the case for retrial because originally the case had been tried by a Court of competent jurisdiction; and

(ii) that the occurrence had taken place as far back as on 1st August, 1985, and the petitioners have suffered much in terms of harassment and expenditure and, therefore, it is good case for acquittal.

The learned Assistant Advocate General Haryana has stoutly contested both the arguments.

I have carefully examined the facts and circumstances of the case and the relevant provisions of law.

Section 386 Cr.P.C. provides that the appellants 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 retried by a Court of competent jurisdiction subordinate to such appellate court or commit for trial.

Bare reading of the above provisions of Section 386 (b)(i) of the Code clearly shows that the appellate Court in an appeal from a conviction had the power to order the convict to be retried by a court of competent jurisdiction subordinate to such appellate Court. The first argument of the learned counsel for the petitioners, therefore, is without any force.

Now, on to the second argument. It is true that trial of the case took about 23/4 years, but the appeal against the judgment of conviction and order of sentence was decided within three days and the retrial was ordered. The petitioners had then preferred this Revision Petition and it was at their instance that the proceedings after remand were stayed vide order dated August 25, 1988. There seems to be no avoidable delay on the part of the prosecution. It is evident from the judgments of the Courts below that the complainant Ranjit Singh was found to have suffered a fracture of shaft of fabula left side in the upper third. It was found that statement of the Radiologist Dr. K.L. Sachdeva (PW.5) did not bear the signatures of the trial Magistrate nor an opportunity to crossexamine him had been afforded to the accused. Court below had rightly remanded the case to the trial Court with the aforementioned directions.

For the above discussion, no fault can be found with the impugned judgment which is hereby affirmed. Consequently this Revision Petition is dismissed.

The petitioners are directed to appear before the trial Magistrate on May 4, 1992. He is directed to complete the trial expeditiously, preferably by July 31, 1992.