Crl. Rev 1202/07 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Criminal Revision Petition No. 1202/2007 Inderbhan Ahuja & (2) Ors Versus State Date of Order ::: 14/03/08 Hon'ble Mr. Justice Ajay Rastogi Mr. AK Gupta, for petitioners Mr. Arun Sharma, Public Prosecutor for State. Instant revision petition U/s 397/ 401, CrPC has been filed by accused against judgment dt.10/08/07 whereby Addl. Sess. Judge (Fast track), Kishangarh Bas (Alwar) remanded the case directing the trial Court to re-write the judgment in accordance with law. Facts, in brief, relevant for purposes of deciding controversy raised herein are that Prem Singh Chauhan (Pw1) lodged a written report on 01/04/03 inter-alia alleging that four public carriers were hired, in which copper was loaded and four trucks were sent from godown of Hindustan Copper Ltd, Bhiwadi for delivery at Chandigarh; and when complainant received telephonic message from Chandigarh that out of four trucks, one bearing registration No.HR-39-A-1225 had not reached to its destination and upon inquiry, it revealed that all the documents of the vehicle were found to be forged; and costs of goods (Copper) Crl. Rev 1202/07 //2// loaded worth Rs.36,68,903/- was found mis- appropriated. Upon aforesaid complaint, FIR- 93/03 was registered at police station Bhiwadi for offences U/s 420/406, IPC. After investigation, charge-sheet was filed for offences U/Ss 411/120-B, IPC against petitioners (Inderbhan & Ravi Ahuja) while U/s 420, 407, 411, 120-B, 468/471, IPC against petitioner Samundra Singh. In all thirty prosecution witnesses were examined and after taking note of their statements and documentary evidence adduced during trial, Judl. Magistrate, Tijara (Alwar) in Cr.Case No.23 (1648-A)/2003 vide judgment dt.18/03/04 convicted & sentenced the petitioners ad infra: (1) Inderbhan & (2) Ravi Ahuja U/Ss (a) 411, IPC – One year's RI (b) 120-B, IPC – One year's RI (3) Samundra Singh U/S (a)420, IPC- 3 Yrs' RI with fine of Rs.5,000/- (in default, 6 months' RI) (b)407, IPC- 3 Yrs' RI with fine of Rs.5,000/- (in default, 6 months' RI) (c)411, IPC- 2 Yrs' RI with fine of Rs.4,000/- (in default, 6 months' RI) (d)468, IPC- 3 Yrs' RI with fine of Rs.5,000/- (in default, 6 months' RI) (e)471, IPC- 1 Yrs' RI with fine of Rs.3,000/- (in default, 6 months' RI) (f)120-B, IPC - 1 Yrs' RI All the substantive sentences were ordered to run concurrently. Against judgment dt. 18/03/04 (supra) petitioners preferred appeal (No.11/05) Crl. Rev 1202/07 //3// wherein appellate Court vide judgment dt. 10/08/07 after taking into consideration submissions made on behalf of petitioners, observed that trial Magistrate has failed to individually examine evidence brought on record during trial with regard to nature of offences committed by each of them, and finally remanded the case directing the trial Court to re-write judgment in accordance with law. Hence this petition. Counsel submits that the appellate court committed serious error in remanding the case and was under obligation to examine the evidence brought on record during trial and after due appreciation thereof was supposed to record its independent finding about guilt or innocence of the accused; and having failed to do so, case has wrongly been remanded back to the trial Court to re-write the judgment, which is not legally sustainable but also is not in consonance with S.386, CrPC. In support, Counsel relied upon decisions of Apex Court in Mohinder Singh Vs State of Punjab (AIR 1985 SC 383). Public Prosecutor on the other hand while supporting the judgment impugned, submits that if the trial Judge failed to Crl. Rev 1202/07 //4// appreciate evidence recorded during trial, in its true perspective, appellate court was under obligation to remand the case to the trial court to re-write judgment after proper re- appreciation of the evidence on record, and accordingly, appellate court has not committed any error while passing judgment impugned. This Court has considered contentions of Counsel for the parties and with their assistance, examined material on record. Against an order of conviction, petitioner has statutory right of appeal U/s 374, CrPC. Court of Sessions being a court of appeal was under obligation and ought to have independently looked into evidence adduced during trial so as to arrive at independent conclusion as to whether the evidence on record can be relied upon or not and even if it can be done, then whether prosecution can be said to have been proved beyond reasonable doubt on such evidence and credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. Section 386, CrPC envisages power of the appellate court. Sub-section (b) whereof reads ad infra: “(b) in an appeal from a conviction - Crl. Rev 1202/07 //5// (i)reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to such appellate court or committed for trial, or (ii)alter the finding, maintaining the sentence, or (iii)with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;” Powers of appellate court are defined in Section 386(b) CrPC - provisions whereof clearly envisage that after appreciation of material on record, appellate court can always reverse or alter the finding & sentence or order for retrial, as well, or alter the finding even while maintaining the sentence in exercise of powers U/s 386(b)(ii), as well. In instant case, had there been any lacuna in the evidence recorded during trial, the appellate court could have remanded the case but it is not in the instant case. The appellate court has merely observed while remanding the case directed the trial court to re-appreciate the evidence and passed reasoned judgment afresh, which is not within the scope of powers U/s 386, CrPC. Rather, had there been Crl. Rev 1202/07 //6// no proper appreciation of evidence by trial Court while passing the judgment under challenge in appeal, appellate court may have altered/reversed the finding recorded by trial Court in exercise of powers U/s 386, CrPC instead of remanding the case. Thus, it was always open for the appellate court to re-appreciate evidence on its own and to consider entire material, which might not have been looked into by learned trial court while awarding impugned conviction & sentence; and it ought to have decided the appeal on merits, itself instead of remanding the case for re-writing a reasoned judgment afresh in accordance with law. Consequently, revision petition succeeds and is hereby allowed alongwith stay petition. Judgment dt.10/08/07 passed by appellate court is set aside. The case is remanded back to the appellate court to decide the appeal of petitioners afresh on merits in accordance with law. Appellants are directed to appear before lower appellate court on 08/04/08. A copy of this order be sent to the court below forthwith for compliance. (Ajay Rastogi), J. K.Khatri/p.6/1202CrRev07(386).doc