JIT SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) JIT Singh and others have come to this Court in this revision against the order dated July 13, 1991 passed by Shri Charanjit Jawa, Additional Sessions Judge, Ferozepur, vide which he set aside the order of conviction and sentence passed upon the petitioners by Shri SMS Mahi, JMIC, Zira, and ordered re -trial.

(2.) IN respect to case FIR No. 109 dated April 24, 1986 registered at police station Mallanwala, the police submitted a report under Section 73 against Jit Singh and three other persons, who are non -petitioners. On the basis of an application moved by the APP Baldev Singh, Balwinder Singh and Mohinder Singh, petitioners were also summoned to stand trial along with two other persons. This application was moved after Darshan Singh had been examined as a witness, but no cross -examination of the statement had been carried out. After the summoning of Baldev Singh, Balwinder Singh and Mohinder Singh, the APP made a statement that he is not to re -examine Darshan Singh and the case proceeded for recording the other evidence and ultimately ended in order of conviction.

(3.) THE statement of APP dated June 9, 1987 was obviously not properly made. Firstly because Darshan Singh's statement was not a complete statement as he had yet to be cross -examined and further for the reason that the statement of witnesses recorded at the back of the accused person cannot be used against him. Both the learned Magistrate and the APP fell in legal error that the statement of Darshan Singh, who had not yet been cross examined and was examined at the back of the three petitioners, could form legal evidence. This was obviously an illegality which has caused injustice and prejudice to the petitioners. The finding of the learned appellate Court that there was a legal error and an illegality, is correct and is hereby condorsed. This, however, did not justify a re -trial of the entire case. The appellate Court had enough powers to summon and examine Darshan Singh as a witness and to examine the petitioners further to explain the evidence of Darshan Singh and thereafter to decide the appeal. I am, thus, of the view that the order of retrial was not justified.