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2022 (1) TMI 1432 - MADHYA PRADESH HIGH COURTMurder - singular charge under Section 307/149 of IPC was framed for attempting to kill Bhanupratap Singh and Ajab Singh, instead of framing charges on two counts - HELD THAT:- The evidence which was led in the Trial of co-accused Dilip cannot be read in favor of the Appellant Surajbhan. Further, on 6-12-2018 and 16-4-2018, Bhanupratap Singh (P.W.1) and Ajab Singh (P.W.2) respectively, were being examined for co-accused Dilip only and not for the Appellant Surajbhan. Therefore, the Appellant Surajbhan would not get benefit of any word uttered by Bhanupratap Singh (P.W.1) and Ajab Singh (P.W.2) in their examination on 6-12- 2018 and 16-4-2018 respectively. However, it is surprising, that although the Appellant Surajbhan Singh was being tried for offence under Section 302/149 of IPC for committing murder of Pahalwan and Darshan Singh, but the Trial Court, without giving any finding in respect of murder of Darshan Singh, convicted him only for the murder of Pahalwan - the Trial Court has passed an incomplete judgment. Since, no appeal has been filed by the State in this regard, then whether this Court is helpless or can remand the matter for writing a judgment in respect of charge under Section 302/149 of IPC which was framed for murder of Darshan Singh as well as in respect of charge under Section 307/149 of IPC which was framed for making an attempt to kill Ajab Singh (P.W.2)? - HELD THAT:- Although no appeal has been filed by the State, but this Court is not reversing the judgment passed by the Trial Court. It is merely found that the judgment passed by the Trial Court is incomplete - In the present scenario, this Court cannot issue notice to the Appellant for enhancement of sentence as no sentence has been awarded by the Trial Court on above mentioned two charges. Further, this Court cannot remand the matter for re-trial, as no procedural lapse has been committed by the Trial Court, but only an incomplete judgment has been passed. The appeal is continuation of Trial. An appeal thus is a rehearing of the main matter and the appellate court can reappraise, reappreciate and review the entire evidence—oral as well as documentary—and can come to its own conclusion. Therefore, this Court is of the considered opinion, that even in absence of any appeal by State, this Court in exercise of powers under Section 482 of Cr.P.C., can remand the matter for writing the judgment in respect of charge under Section 302/149 of IPC for murder of Darshan Singh and under Section 307/149 for making an attempt on the life of Ajab Singh (P.W.2) also, which was erroneously left by the Trial Court. Appeal disposed off.
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