JUDGMENT
P.S. Brahme, J.
1. Heard Shri Mardikar, learned counsel for the applicants and Shri Sonare, learned Additional Public Prosecutor for the non-applicant – State.
2. This Revision Application is preferred by the applicant (original accused Nos. 2 and 3 in Regular Criminal Case No. 318 of 1997) challenging the judgment of conviction recorded by the Judicial Magistrate First Class, Akot, in Regular Criminal Case No. 318 of 1997 as also the judgment passed by the third Additional Sessions Judge, Akola, in Criminal Appeal No. 2 of 1998 whereunder conviction of the applicants for the offence under Section 325 read with Section 34 of Indian Penal Code as also sentence of Rigorous Imprisonment for six months and fine of Rs. 500/-, and in default of payment of fine to suffer further Rigorous Imprisonment for one month to each of them came to be confirmed.
3. The prosecution against the applicants and their father Narayan Mahadeo Lelekar (original Accused No. 1) was initiated on the basis of a complaint lodged by one Samdhan Shriram (P.W.2) was in respect of incident that took place on 30-10-1994 at village Karodi Tq. Akoi, at about 10.00 A.M. where injured Shriram (P.W.3) came to be assaulted by the applicants and their father Narayan with sticks. At the trial, taking into consideration the evidence of eye witnesses Samadhan P.W.2, Shriram P.W.3 and Shrikrushna – P.W. 8, Medical Evidence of Dr. Dikeshwar – P.W. 9 with injury report at Ex. 43, the trial Court by its order dated 21-1-1998 convicted both the applicants and also sentenced them as stated earlier, while acquitted accused Narayan. The applicants, taking exception to their conviction, preferred Criminal Appeal No. 2 of 1998 before the IIIrd Additional Sessions Judge, Akola, who by his order and judgment dated 13-8-1999, dismissed the same. That is how the matter is before this Court in Revision.
4. Shri Mardikar, learned counsel for the applicants, without going into the merits of the matter, submitted that the Courts below have committed error in deciding the matter when it was brought to the notice of the Court that the counter case initiated on the report filed by the applicant – Dilip was pending in the same Court. He has also pointed out that the said Criminal Case which was numbered as Criminal Case No. 284 of 1994 came to be decided by other Judge by the judgment dated 15-6-1999 wherein all the accused persons therein came to be acquitted of the offence punishable under Sections 143, 147, 149, 323 and 506(11) read with Section 34 of Indian Penal Code. It is submitted that by reason of deciding the case against the applicants independently and separately even though counter case was very much pending in the Court, grave prejudice has been caused to the applicants which has direct bearing on the result of the case which ended in conviction and that is much more so when the counter case tried separately and subsequently has ended in acquittal. Shri Mardikar placed reliance on the decision of the Apex Court in the AIR 2001 SC 826, Sudhir and Ors., Appellants v. State of Madhya Pradesh, Respondent, in which the earlier decision of the Apex Court in 7990 SCC (Cri.) 638, Nathilal and Ors., Appellants v. State of U.P. and Anr., Respondent, has been referred. The principle is laid down by the Apex Court in respect of procedure to be followed by the trial Court in case of cross case.” The Apex Court has observed that each case is to be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after another. The Apex Court observed that:
“We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgment. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other.”
5. There can be no dispute or debate over the procedure laid down by the Apex Court in case of trial of cross case. In the instant case, as both the cases are already decided though by different Judges and also have been tried separately, now no contingency arises for deciding the case at hand by the same Judge. But at the same time, the effect of deciding both the cross cases independently, causing prejudice to the applicants whose case came to be decided in spite of the fact that the cross case was already pending and awaiting disposal, cannot be lost sight of. There is substances in the submissions of Shri Mardikar that the procedure adopted by the Courts below in deciding the matter independently in spite of the fact that the counter case was pending, was contrary to the law laid down by the Apex Court and much prejudice has been caused to the applicants. It is very surprising to note that the appellate Court while dealing with the submissions of the learned counsel for the appellant in respect of counter case has observed that:
“Had it been a fact that there was criminal trial arising out of same incident, then naturally the accused persons ought to have placed on record any documentary proof. In further examination of accused none of them deposed that there is such trial arising out of same incident nor there is any suggestion given to P.W. 13 – P.S.I. Palve that another crime for the same incident is registered with P.S. Dahinanda and on the basis of same, P.S.I. Palve has submitted charge sheet against the present injured and complainant. Unless that much cogent proof is on record, one cannot say that there is any counter case against the complainant and injured.”
6. As against that the learned counsel for the appellants has pointed out from the record of the Courts below that the appellant in reply to Question No. 31 in his examination under Section 313 of the Criminal Procedure Code stated that the witnesses are relatives of the complainant and that a year before on the basis of his report, a criminal case has been filed against the witnesses and in order to take revenge, a false case has been filed. On the date of occurrence, complainant and his father assaulted the applicant Dilip and for that also a criminal case has been filed in the Court. The learned counsel also pointed out that complainant Samadhan (P.W.2) in his cross-examination admitted saying “it is true that one criminal case against myself, my father and seven others regarding beating to accused No. 2 – Dilip in respect of the same date incident is pending.” It is also pointed out that witness Shriram (P.W.3) has stated that he is facing criminal case regarding same date incident about beating to Dilip.
7. Having regard to this material brought on record, it has to be said that what has been observed by the appellate Court is totally against the record. It is, therefore, crystal clear that it is very much brought to the notice of the trial Court during the pendency of the trial that counter case has been filed and the same is pending against the complainant, his father and other persons, amongst whom some are witnesses in the criminal case.
8. Before the trial Court though submission was made on behalf of the accused that on the day of incident P. W. 3 – Shriram had beaten accused No. 2 and accused No. 2 had lodged report against P.W. 3, but the trial Court did not take into consideration this submission for the reason that it was contended on behalf of the prosecution that accused No. 2 has lodged false report to counter blast the report filed by P.W.3 and accused No. 2 has not lodged injury report and it was also not brought on record as to how, where and when accused No. 2 was beaten. The action found to be in ignorance of what witness Shriram P.W.3 has admitted in his cross-examination and also admissions given by the complainant – Samadhan. Apart from that when this material was brought at the trial, fault lies with the prosecution to place before the Court the true state of facts in respect of counter case to justify the Court to come to the conclusion that the incident that took place in respect of the complaint lodged by the applicant Dilip was entirely different incident in the sense that it is in no way connected with the incident for which the applicants were tried. That was much more so when it has been admitted by the witnesses that the incident in counter case took place on the same date and at the same time and place. In this respect, the documents which have been filed in this revision application do support the claim of the counsel for the applicants that the counter case was arising out of the incident which took place very much on the date of the occurrence and at the place and time when the incident in respect of which applicants were tried had taken place. Therefore, it was incumbent on the trial Court after completing hearing in the criminal case to reserve judgment and to take up the counter case for hearing and then decide both the matters simultaneously. It is true that as laid down by the Apex Court, each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or the arguments urged in cross case. But what is required is that both the judgments must be pronounced by the same Judge. That is a fair procedure to be adopted in the matter where there are cross cases. In the instant case, the trial Court has decided the matter ignoring the fact that the counter case was already pending and admittedly the counter case has been decided subsequently, resulting in acquittal. Therefore, prejudice has been caused to the applicants. In view of this, I feel that the judgment given by the trial Court convicting the appellants is vitiated. Consequently, the judgment and order passed by the appellate Court confirming the judgment of the trial Court is also vitiated. In the earlier part of the judgment, I have observed that the appellate Court has misread the material which was brought on record and particularly the admissions given by the witnesses in connection with counter case that was admittedly pending in the Court in which the complainant and witnesses were facing trial and it was arising out of the incident which took place very much on the date, time and place when the incident in question took place. Though I have found that the judgments recorded by the Courts below cannot stand, I feel that the best course to be adopted is to remit the matter to the trial Court with direction to decide the matter afresh after hearing the submissions of counsel for the applicants as also the learned Additional Public Prosecutor and also bearing in mind the decision of the trial Court in counter case. It is, however, made clear that it has been laid down by the Apex Court that the trial Court in deciding each of the cases, can rely only on the evidence recorded in that particular case. Therefore, the trial Court has to decide the matter on the basis of evidence recorded in this particular case. The evidence recorded in cross case cannot be looked into nor the trial Court be influenced by whatever was argued in the cross case and whatever was the evidence recorded in the cross case. It is made clear that the trial Court has to decide this matter independently without being influenced in any manner by the evidence as well as the judgment in counter case. I, therefore, pass the following order:
The Revision Application is allowed. The order passed by the Courts below convicting the applicants and sentencing them for the offence under Section 325 read with Section 34 of Indian Penal Code are set aside. The Criminal Case bearing Regular Criminal Case No. 318 of 1997 is remitted back to the trial Court that is to the Court of Judicial Magistrate First Class, Akot, for deciding the matter independently on the basis of the evidence recorded in that case and also adhering to the observations made by this Court. Record and Proceedings be sent back to the trial Court immediately. The applicants are to appear before the trial Court within four weeks. The applicants be continued on bail which they have furnished in the trial Court during the pendency of the trial, on furnishing fresh bonds.
