DHOOM SINGH Vs. STATE

JUDGEMENT

(1.) THIS revision is directed against an order dated 14-8-76 passed by Sessions Judge, Dehradun, setting aside the conviction and sentences passed against the applicants u/Sec. 325 and 326 IPC and remanding the case to the trial court for being heard afresh in accordance with law.

(2.) THE prosecution case was that on 6-10-73 at about 6 P. M. the applicants attacked Pooran Singh and Bhau Singh with Khukri, Pathal and Lathi and caused simple and grievous hurt to them. Pooran Singh and Bhau Singh got their injuries examined on 8-10-73 by Dr. S. P. Varma in Doon Hospital, Dehradun. Dr. S. P. Varma found 18 injuries on the body of Pooran Singh and 14 injuries on the body of Bhau Singh. THEir injuries were in the nature of incised wounds, contused wounds, contusions and abraded contusions. It appears that no report was made at the police station in regard to this incident. On 9-10-73 Gulab Singh, father of Pooran Singh and Bhau Singh, gave an application to S. P. Dehradun mentioning therein that the applicants had caused injuries to his sons and even though the Medical Officer of Doon Hospital had informed the concerned thana about the incident, the police took no action in the matter. S. P. Dehradun ordered the; Station Officer of the thana concerned to register a case against the applicants. Accordingly, a case was registered against them and after the usual investigation was over they were sent up to stand their trial u/Secs. 325 and 326 IPC.

(3.) I have heard the learned counsel for the applicants at sufficient length and after doing so, I am firmly of the viaw that this revision must be allowed. Even though I agree with the view of the learned Sessions Judge that the trial court had decided this case in a very perfunctory and negligent manner, yet I do not think it was proper on the part of the Sessions Judge to have remanded the case for rehearing. An order for retrial of criminal case is made in exceptional cases. Generally speaking, re-trial is ordered only when the court trying the proceeding had no jurisdiction to try it, or when the trial court had committed serious illegalities or irregularities which went to the root of the case and thereby vitiated the entire trial. In this case admittedly, the trial court had jurisdiction to try this case. Further, there is nothing to show that while trying this case it had committed serious illegalities or irregularities which vitiated the entire trial. I find that the prosecution itself was at fault when it did not produce the witnesses in court on the dates fixed. The first date fixed for examination of witnesses was 2-3-76. On that day no prosecution witness was present in court and, therefore, none could be examined. The public prosecutor applied for adjournment, but his application for adjournment was rejected. This was not proper on the part of the trial court as in all fairness it should have given another date to the prosecution for producing its witnesses. However, even though the trial court had rejected the application for adjournment, I find that summonses were issued to the witnesses for attendance in court on 3-3-76. On 3-3-76 some witnesses appeared in court and they were examined. they were SI Om Prakash the police officer who had investigated the case, Dr. S. P. Varma, the person who had examined the injuries of Pooran Singh and Bhau Singh. Dr. S. P. Gupta the person who had X-rayed some of the injuries of Pooran Singh and two eye-witnesses, namely, Uttam Singh and Phattu Singh. The trial court after examining these persons closed the prosecution case, examined the applicants u/Sec. 313 CrPC and also recorded the statement of a defence witness. Having done that, it fixed 4-3-76 for arguments. On 4-3-76 the public prosecutor made an application that Gulab Singh and Bhau Singh, who were present in court, be examined, but the trial court rejected that application. On 6-3-76 judgment was delivered and the applicants were convicted as aforesaid. None of the acts done by the trial court could in any way be said to be illegal. In its discretion the trial court did what it thought proper and just. Merely because it did not give enough latitude to the prosecution to examine its witnesses, it cannot be said that it acted in an illegal manner. No irregularity as such was also committed by the trial court in proceeding with the trial of the case. If any body was to be blamed in this case, it was the prosecution for having not produced its witnesses in time. That being so, it was not proper on the part of the learned Sessions Judge to have set aside the judgment of the trial court and remanded the case for retrial. If the learned Sessions Judge felt that evidence of some witnesses was necessary for the proper and just decision of the case, he could always have summoned those witnesses in his court for their examination. There was absolutely no point in remanding the case and thereby wiping out the entire evidence that the trial court had recorded. Wiping out of the evidence so recorded would certainly prejudice the applicants. The order of the Sessions Judge remanding the case was, therefore, not at all a proper order and consequently it cannot be allowed to stand.