- (1.) THE accused-petitioners have challenged the order dated 06.10.2009, passed by the Additional Sessions Judge, Kishangarh District Ajmer, whereby the learned Judge while quashing and setting aside the conviction order dated 25.04.2009, passed by the learned Additional Chief Judicial Magistrate, Kishangarh District Ajmer, has directed the learned trial court to call the Investigating Officers and to reassess the entire evidence, even with regard to offences under Sections 324 & 326 IPC for which the accused-petitioners were already acquitted by the learned trial court.
(2.) IN brief, the facts of the case are that on 20.06.2000, Ramdhan, the complainant, gave a parcha bayan at Police Station, Arai, District Ajmer against the accused-petitioners about an incident which had occurred on the same day. According to Ramdhan, he was Sarpanch of Gram Panchayat, Akodia. He constructed five shops in village Mundoti on behalf of the Gram Panchayat. These shops are adjacent to the land of Narain Kumhar. Due to this construction, Narain Kumhar and his family members have animosity with him. On 20.06.2000, he came from village Mundoti to Akodiya with Om Prakash Sharma on motor cycle. At about 8:15 AM when he reached in front of the house of Kishna Kumhar, then Bhura, Ramavatar, Kailash & Dalraj were standing there. After seeing him, they shouted that they will kill him. Thereafter, Bhura threw a rope, as a result of which Om Prakash fell down from the motor cycle. They attacked him with lathi, pharsi and axe. Meanwhile, Nabi, Gabru Jat and Norat rushed to his rescue. Seeing these persons, the accused-persons ran away. The rescuers took him to the hospital. On the basis of parcha bayan, the Police registered a FIR for offences under Sections 143, 148, 149, 307 & 323 IPC. After a thorough investigation, the police submitted charge-sheet against the accused-petitioners for offences under Sections 341, 323, 324, 325, 327 & 307 IPC before the learned trial court. Vide order dated 04.04.2001, the learned trial court discharged the accused-petitioners from the offence under Section 307 IPC. Thereafter, the learned trial court framed the charged against the accused-petitioners. The prosecution in support of its case produced twenty witnesses, and exhibited certain documents. The statements of accused-petitioners were recorded under Section 313 Cr.P.C. In defence, the accused-petitioners did not produce any witnesses, but did exhibit certain documents. After hearing both the parties, vide judgment dated 25.04.2009, the learned trial court acquitted the accused-petitioners for offences under Section 324 & 326 IPC, but convicted and sentenced them for offences under Sections 341, 323 & 325/34 IPC. Since the accused-petitioners were aggrieved by the judgment dated 25.04.2009, they filed an appeal before the learned appellate court. Vide order dated 06.10.2009, the learned appellate court quashed and set aside the judgment dated 25.04.2009, in toto, passed by the learned trial court and remanded the case with the direction to summon Banshi Lal and Ranveer Singh, the Investigating Officers of the case, and to record their statements and decide the matter afresh in accordance with law. Hence, this petition before this Court.
(3.) MR. Vijayant Nirwan, the learned counsel for the accused-petitioners, has contended that the petitioners had challenged their conviction for offences under Sections 341, 323 & 325/34 IPC. Neither the complainant, nor the State had challenged the accused-petitioner's acquittal for offences under Sections 324 & 326 IPC. Therefore, the scope of the appeal was limited only to examine the legality or illegality qua the conviction for offences under Sections 341, 323 & 325/34 IPC. The said scope could not be enlarged by the appellate court to include the legality or illegality of the acquittal for offences under Sections 324 and 326 IPC. Therefore, the appellate court has committed a grave illegality in directing the learned trial court to call the Investigating Officers, to record their testimonies and to reassess the entire evidence even with regard to offences under Sections 324 & 326 IPC, for which the accused-petitioners were already acquitted. According to the learned counsel, the appellate court has overstepped its jurisdiction. In order to buttress this contention, the learned counsel has relied upon the case of The State of Andhra Pradesh Vs. Thadi Narayana [AIR 1962 SC 240]. Lastly, the learned appellate court has not assigned any reason for passing the said judgment. On the other hand, Ms. Alka Bhatnagar, the learned public prosecutor, has contended that the learned appellate court has assigned reason as it is of the opinion that the accused-petitioners were acquitted for offences under Section 324 & 326 IPC solely on the ground that the Investigating Officers were not examined as witnesses by the prosecution. Therefore, she has supported the impugned Judgment. Heard the learned counsel for the parties and perused the impugned Judgment. Admittedly, neither the complainant, nor the State had filed any revision/appeal against the petitioners' acquittal for offences under Sections 324 & 326 IPC. Therefore, the appeal filed by the accused-petitioners was limited to the extent of legality or illegality of the impugned judgment qua the offences under Sections 341, 323 & 325/34 IPC. ;