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TMI Blog2022 (1) TMI 1432X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to his Uncle Darshan Singh. Surajbhan also fired gunshot causing injury on the head of his father. Dilip Singh, Rampreet, Devaram started assaulting Ajab Singh by means of lathi, Farsa as a result, he also fell down. Ajab Singh sustained injuries on his head, hands and legs as Bharat Singh had assaulted him by Farsa, whereas Devaram, Dilip and Rampreet had assaulted by lathis. His father Pahalwan and Darshan Singh died on the spot. Kedar Singh also chased him and fired gunshots, but he escaped and ran towards his house. Ravi and Brijendra have witnessed the incident. Kedar Singh has left his white shirt, photocopy of his license and diary with Rs.150/- on the spot, which he has brought. 3. On the basis of the report lodged by complainant Bhanupratap Singh, police registered offence under Sections 302, 307, 147, 148, 149, 120-B of I.P.C. The dead bodies of Pahalwan Singh and Darshan Singh were sent for post-mortem. The spot map was prepared. Statements of the witnesses were recorded. Police after completing the investigation, filed charge sheet against the Appellants and Surajbhan for offence under Section 147, 148, 149, 302, 307, 120-B of I.P.C., whereas co-accused Dilip was shown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt on the spot, and he has brought the same, but in his evidence, he clearly stated that after leaving the place of incident, he did not return to the spot, therefore, it is clear that there was no occasion for the complainant to bring the white shirt of Kedar to the police station. The witnesses are related and interested witnesses, therefore, they are not reliable. It is further submitted that while deposing in the Trial of Co-accused Dilip, these witnesses had clearly stated that the Appellant was not present on the spot, therefore, they are not reliable. 10. Per contra, the Counsel for the State has supported the findings recorded by the Trial Court. 11. Heard the learned Counsel for the parties. 12. Before adverting to the facts of the case, this Court would like to consider as to whether the judgment passed by the Trial Court is a complete judgment or not? 13. The Trial Court in para 34 of its judgment has convicted the Appellant under Section 302/149 of IPC for causing murder of Pahalwan Singh and under Section 307/149 of IPC for making an attempt to kill Bhanupratap (P.W.1), however, the judgment is completely silent with regard to charge under Section 302/149 of IPC for mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portant facets along with others i.e., firstly, the recording of evidence in the presence of accused or his pleader and secondly, the right of accused to cross-examine the witnesses. These facts are, of course, subject to exceptions provided under law. In other words, the culpability of any accused cannot be decided on the basis of any evidence, which was not recorded in his presence or his pleader s presence and for which he did not get an opportunity of cross-examination, unless the case falls under exceptions of law, as noted above. 40. The essence of the above synthesis is that evidence recorded in a criminal trial against any accused is confined to the culpability of that accused only and it does not have any bearing upon a co-accused, who has been tried on the basis of evidence recorded in a separate trial, though for the commission of the same offence. 41. 41. It is also an undisputed proposition of law that in a criminal appeal against conviction, the appellate court examines the evidence recorded by the trial court and takes a call upon the issue of guilt and innocence of the accused. Hence, the scope of the appellate court s power does not go beyond the evidence available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence would be wholly irrelevant in considering the merits of the Appellant's case. We may add here that Mr. Misra appearing for the Appellant did not in this Court rely on Pritam Singh's case, (S) AIR 1956 SC 415. 5. Mr. Misra contended that the decision of this Court in Krishna Govind Patil v. State of Maharashtra, AIR 1963 SC 1413 showed that the High Court was wrong in ignoring the fact of the acquittal of Ramhans. We are unable to accept that contention. The point there considered really was whether when four persons had been charged with the commission of an offence of murder read with S. 34 and the trial Court had acquitted three of them it was legal to convict the remaining accused of the offence of murder read with S. 34. The High Court had held that that could be done. This Court set aside the judgment of the High Court mainly on the ground that such a decision would result in conflicting findings. It was observed, While it (the High Court) acquitted accused 1, 3 and 4 under S. 302 read with S. 34 of the Indian Penal Code, it convicted accused 2 under S. 302 read with S. 34, of the said Code, for having committed the offence jointly with the acquitted persons. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of murder of Darshan Singh, convicted him only for the murder of Pahalwan. At the cost of repetition, it is observed that the Appellant has also not been acquitted for charge under Section 302/149 of IPC for murder of Darshan Singh. In fact the judgment is completely silent about the murder of Darshan Singh. Similarly, no finding was given by the Trial Court in respect of attempt to kill Ajab Singh (P.W.2), but held that the Appellant is guilty of making an attempt to kill Bhanupratap Singh (P.W.1). At the cost of repetition, it is observed, that the Appellant has also not been acquitted for charge under Section 307/149 of IPC for making an attempt on the life of Ajab Singh (P.W.2). 22. Thus, it is clear that the Trial Court has passed an incomplete judgment. 23. Now, the next question for consideration is that 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). 24. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 26. Section 482 of Cr.P.C. reads as under : 482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. 27. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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