GOPI Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS revision has been preferred against the judgment and order dated 8.7.86 passed by Shri H.C. Jain, Third Additional Sessions Judge, Morena, in Cr. Appeal No. 155/84 whereby he has set aside the judgment and order of conviction and sentence u/s 394 I.P.C. dated 22.11.84 recorded by the Magistrate and remanded the case for retrial with certain directions.

(2.) THE brief facts of the case are that the complainant's aunt aged 60 years wanted to go to her parent'" house. He told her that he will be able to do so when he will be free from his agricultural work. It is said that in the meantime on 30.11.82 at about 4 P.M. the petitioner carried Kunwarde on the pretext of taking her to her parent's house. He is alleged to have taken her to a field and robbed her there of her silver ornaments, namely Chura, from her hands and feet and thereafter threw her away into a well. Some persons were attracted by the sound coming from the well, peeped into it and called Laxman and other people who took out Shrimati Kunwarde, who then narrated the story. A report was lodged at the P.S. Joura on 2.12.82 and a case u/s 394 IPC was registered. On 4.2.82 the petitioner was arrested and on his information the stolen articles were recovered. On 23.12.82 test identification was held by Sarpanch Ratanlal Dubey, Laxman and Gyasia identified the said articles. During the trial the petitioner pleaded false implication. The learned trial Court relied on the prosecution witness and convicted the petitioner u/s 394 I.P.C. and sentenced him to three years R.I. and a fine of Rs. 500/ -. On appeal preferred by the petitioner the learned Additional Sessions Judge held that(1) the Prosecution should have examined P.W. Ratanlal Dubey who had conducted the test identification, (2) Prosecution and the Court should have got the seized articles identified in Court by the witnesses and (3) the Court should have considered whether on the facts of the case a charge u/s 307 IPC was made. With these directions the learned Additional Sessions Judge remanded the case. Aggrieved by the said order the present revision has been filed.

(3.) THE only point argued before me was that the appellate Court had travelled beyond its jurisdiction and beyond the powers conferred on an appellate Court U/S 386 (b) Cr. P.C. in remanding the case for a limited purpose. There appears to be some substance in the contention of the applicant that the learned appellate Court has travelled beyond its jurisdiction and beyond the scope or powers conferred on an appellate Court u/s 386(b) Cr. P.C. No doubt section 386(b) empowers the appellate Court to acquit or discharge the accused or order him to be retried but that does not mean that the appellate Court can give a direction to the trial Court to admit such evidence which is prejudicial to the interest of the accused or to direct to admit such evidence which was not on record and which is intended to fill up the lacuna. There is no room for doubt that the prosecution had committed an error in not getting the ornaments to be put to test identification. The property of the complainant and the person of the accused should have been put to test identification in order to fix the identity. Its identification is a part of investigation. By passing the impugned order the learned appellate Court has allowed the prosecution to admit such evidence in the form of retrial which was certainly against the interest of the accused and the scope of S. 386(b) Cr. P.C. does not permit it. The order of the appellate Court therefore, suffers from this illegality and the revision has force. It was not open to the appellate Court to have directed for identification of the property or person. As said earlier, this is a part of investigation and it should have been completed before the charge -sheet was submitted in Court. By making this order the learned Additional Sessions Judge has not only given an opportunity to the prosecution to fill up the weak spot of the prosecution case but also put the case to the stage of investigation. Certainly this was not open to the Judge while exercising his powers u/s 386(b) Cr. P.C. A miscarriage of justice has taken place. The order is definitely prejudicial against the interest of the appellant.