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Tuesday, December 10, 2013

Retrial - the trial court acquitted the case after full trial on benefit of doubt without considering the medical evidence, and due to non speaking of evidence clearly , due to hostile witnesses and due to improvements- Appellant court set aside the acquittal and remanded the case for fresh trail on petition - High court in revision set aside the retrial order and also set aside the main order of appeal which found prima faice case, with out considering and assessing the medical evidence - Apex court on petition for retrial held that no retrial can be order and confirmed the view of high court - Apex court on SLP against revision held that High court committed wrong in allowing the revision with out considering material as to why the lower appellant court set aside the acquittal order - Apex court remanded the case to high court for fresh disposal on this point = MARY PAPPA JEBAMANI ..Appellant Versus GANESAN & ORS. ..Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41055

 Retrial -  the trial court acquitted the case after full trial on benefit of doubt   without considering the medical evidence, and due to non speaking of evidence clearly , due to hostile witnesses and due to improvements- Appellant court set aside the acquittal and remanded the case for fresh trail on petition - High court in revision set aside the retrial order and also set aside the main order of appeal which found prima faice case, with out considering and assessing the medical evidence - Apex court on petition for retrial held that no retrial can be order and confirmed the view of high court - Apex court on SLP against revision  held that High court committed wrong in allowing the revision with out considering material as to why the lower appellant court set aside the acquittal order  - Apex court remanded the case to high court for fresh disposal on this point =

  However,  PW-2  and  PW-3  who  were  cited  as  eye-
witnesses turned hostile and the deposition of PW-1, PW-4 and  PW-9  who  is
the  daughter of PW-1 complainant  were not relied upon as the  trial  court
being the Chief Judicial Magistrate, Virudhunagar  District  held  that  the
complaint did not disclose   the nature of  abusive language  used  by   the
accused as also the fact that the  eye-witnesses had  turned  hostile.   The
trial court, therefore,  vide its  order  dated  20.4.2007  was  pleased  to
give benefit  of doubt  to the accused  persons  and  they  were   held  not
guilty for offences  under Sections  294(b) and 323 IPC.

The  appellant/complainant  felt  seriously  aggrieved  of  the
acquittal of the accused respondents and hence  filed  Crl.   R.P.No.25/2008
before the  Principal Sessions Court, Srivilliputhur, District  Virudhunagar
     against  the  trial  court/Chief  Judicial  Magistrate’s  Order   dated
20.4.2007 and also  prayed for   retrial  of the accused  respondents.   The
Principal Sessions Court, Virudhunagar  vide order dated  26.6.2008  allowed
the revision filed by the complainant/appellant and set aside  the order  of
acquittal dated 20.4.2007 of the accused respondents passed  by  the   Chief
Judicial Magistrate.
Satyajit  Banerjee  &
Ors. Vs. State of W.B. & Ors. , (2005) 1 SCC 115,  wherein  this  Court  has
held that direction for retrial should not be made in  all   or  every  case
where acquittal of accused  is for want of  adequate or  reliable  evidence.
It is only when an  extra-ordinary situation in regard  to the  first  trial
is found so as to treat  it    a farce  or  a  ‘mock  trial’,   which  would
justify   directions for retrial.   It was further  held therein   that  the
trial  Judge  has to decide the case on the  basis  of   available  evidence
recorded at the initial stage of the  trial   and  the  additional  evidence
recorded  on retrial in the event  a  retrial  had  been  permitted.                 

     Thus, it cannot be overlooked that  where  prosecution
lacks in bringing  necessary evidence, the trial court ought to  invoke  its
powers under Section 311 of the Criminal Procedure Code and can  direct  for
retrial.
11.         In the light of the aforesaid legal position when the  facts  of
the instant matter are examined,
 it  emerges  that  the  appellant  although
has alleged that the order for retrial  should  have   been  passed  by  the
trial court and the High Court, nothing   specific  has  been   pointed  out
why the matter should be sent  for retrial specially when  the  two  of  the
important  witnesses had  failed  to  support   the  prosecution/complainant
version.   
Apart   from  this,  the  complainant   herself   had  failed  to
disclose as to what exactly was the genesis of the  occurrence as also   the
contents of the  abuse  which could persuade  this court  that   a  de  novo
trial of the accused  was essential.
12.         Having  thus considered and analyzed the facts and the  evidence
 that were  brought to the notice of this Court, we are  of  the  view  that
SLP (Crl.) No.4150/2011 seeking  retrial   of  the  complaint  case  bearing
Summary Trial case No. 1/2007 is not fit to be  entertained  as  it  is  not
possible  to take  a view   that the investigation was shoddy   or  suffered
from grave lacunae which would justify the parameters for  retrial   at  the
instance of the complainant  for the mere asking as it does  not   meet  the
legal requirements justifying  a  retrial.   
However,  it  so  far  as   SLP
(Crl.) No. 4149/2011  is  concerned,  it  is   clearly  reflected  from  the
impugned order of the High Court  allowing the  revision  petition   at  the
instance  of the accused respondents  that  it  has  failed  to  record  any
reason whatsoever  while  exercising  revisional  jurisdiction  for  setting
aside the order of conviction passed by the Sessions  Court  which  had  set
aside the order of acquittal   of  the  respondents  without  examining  any
evidence more particularly the  medical  evidence  led  by  the  complainant
which disclosed that the complainant’s father  had  sustained  injuries  and
was treated at a  Government  Hospital  for  several  days.     
Hence,  even
though we endorse the view of the High Court to the effect that the  instant
matter   might not have been a fit case for referring it  for  retrial,  the
High Court  certainly had  the legal obligation  to   assign  reasons  while
allowing the revision of the accused respondents stating   why  it  has  set
aside the judgment and order of the  First  Appellate  Court/Sessions  Court
while exercising  revisional   jurisdiction   specially  when  the  Sessions
Court found sufficient evidence  on record  to set aside  the  acquittal  of
the respondents   and upheld their  conviction under  Section  294  (b)  and
323 IPC.
13.         Since the High Court  has failed to record  any  reason  setting
aside the order of  the  First  Appellate  Court,  when  it  was  exercising
merely  revisional jurisdiction,  we deem it just and appropriate to  remand
the matter arising out of  Criminal Revision No. 620/2008 to the High  Court
to   reconsider  and  assign   reasons  for  setting  aside   the  order  of
conviction  and recording  an order of acquittal  of the respondents  passed
by the First Appellate Court convicting the respondents  without  specifying
and ignoring  the medical evidence although it was   considering the  matter
only  in exercise of its revisional jurisdiction  which has  limited   ambit
and scope. 
 In view of the above discussion, the appeal arising out of   SLP
(Crl.) 4149/2011  shall  be treated as  allowed in  view  of  the  order  of
remand of the matter  to  the  High  Court  for   fresh  consideration.   As
already stated, appeal arising  out  of  SLP  (Crl.)  No.  4150/2011  stands
dismissed.                                       

    Reportable




                          IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                   CRIMINAL APPEAL NOS.  2061-2062 OF 2013
               (Arising out of SLP (Crl.) Nos. 4149-4150/2011)




MARY PAPPA JEBAMANI                          ..Appellant

                                   Versus

GANESAN & ORS.                               ..Respondents



                               J U D G M E N T




GYAN SUDHA MISRA, J.


1.          Leave as prayed for was granted and hence  the counsel  for  the
contesting parties were finally heard.
2.          The  complainant/appellant  (Mary  Pappa  Jebamani)  herein  has
filed   this   appeal  by  way  of   special  leave   bearing   SLP   (Crl.)
No.4149/11) against the judgment and order dated 25.2.2010  passed  in  Crl.
R.C. (MD) No.620/2008 of  Madurai Bench of the Madras High  Court  by  which
the learned single Judge while exercising his  revisional  jurisdiction  was
pleased to set aside the judgment and order dated  26.6.2008  passed by  the
Principal Sessions Court,  Virudhunagar  District  at  Srivilliputhur  being
the first appellate court  who had  been pleased to set aside  the order  of
acquittal passed by the trial court against  the accused/respondents  herein
 for the offences punishable under Sections 294(b) and  323  of  the  Indian
Penal Code (for short ‘IPC’).    Thereafter,  the  appellants  herein   also
filed an application bearing MP (MD) SR  No.  15619/2010  in  the  aforesaid
criminal revision for allowing the application by ordering retrial   of  the
accused respondents which petition was dismissed as  not  maintainable  vide
order dated 7.1.2011 against  which  the  complainant/appellant  filed   the
analogous  petition for Special Leave to Appeal (Crl.)  No. 4150/2011.
 It
is thus clear  that the complainant has filed  one  special  leave  petition
against the order by which the acquittal of the respondents/accused  persons
has been restored by the High Court by allowing   their  criminal   revision
and has dismissed the application of  the   complainant/appellant  by  which
re-trial  of the accused respondents had been sought.
3.          In order to examine the correctness of the  impugned  orders  of
the High Court, it appears essential to relate the facts of the case  giving
rise to these  two  appeals  which  disclose   that   a  criminal  complaint
bearing crime No. 152/2005 was registered by the  Sub  Inspector  of  Police
wherein it  was  stated    that  at  about  7.30  p.m.  on   24.6.2005,  the
appellant/complainant  and her father  while  walking  down  the  street  to
their  residence were way laid  by the respondents who verbally abused  them
and beaten them with   wooden  logs.    Hence  a  case  was  registered  for
offences under  Section  294(b)  and  323  IPC.    After  investigation  and
submission of chargesheet, a summary  trial  bearing  case  No.  1/2007  was
conducted by the Chief Judicial Magistrate,  Virudhunagar  District  wherein
the complainant/PW-1 and her father  PW-4  deposed   not  only  against  the
accused respondents herein but also against three other female  members   of
the accused party.     However,  PW-2  and  PW-3  who  were  cited  as  eye-
witnesses turned hostile and the deposition of PW-1, PW-4 and  PW-9  who  is
the  daughter of PW-1 complainant  were not relied upon as the  trial  court
being the Chief Judicial Magistrate, Virudhunagar  District  held  that  the
complaint did not disclose   the nature of  abusive language  used  by   the
accused as also the fact that the  eye-witnesses had  turned  hostile.   The
trial court, therefore,  vide its  order  dated  20.4.2007  was  pleased  to
give benefit  of doubt  to the accused  persons  and  they  were   held  not
guilty for offences  under Sections  294(b) and 323 IPC.
4.           The  appellant/complainant  felt  seriously  aggrieved  of  the
acquittal of the accused respondents and hence  filed  Crl.   R.P.No.25/2008
before the  Principal Sessions Court, Srivilliputhur, District  Virudhunagar
     against  the  trial  court/Chief  Judicial  Magistrate’s  Order   dated
20.4.2007 and also  prayed for   retrial  of the accused  respondents.   The
Principal Sessions Court, Virudhunagar  vide order dated  26.6.2008  allowed
the revision filed by the complainant/appellant and set aside  the order  of
acquittal dated 20.4.2007 of the accused respondents passed  by  the   Chief
Judicial Magistrate.
5.          Obviously, it was  now the turn of  the accused  respondents  to
move the High Court against the order  setting  aside  their  acquittal  and
hence they filed  criminal revision in the High Court which was  allowed  by
the  High   Court  vide  the  impugned  order.   The  complainant/appellant,
therefore,  has moved this Court by way  of  this   special  leave  petition
challenging the  order  of  acquittal   and  further  filed  a  Crl.   Misc.
Petition  bearing SR No. 15619/2010   praying  for retrial  of  the  accused
respondents which was dismissed as not maintainable as already  referred  to
hereinbefore.
The analogous  special leave  petition  is  directed  against
this order.
 6.        The complainant/appellant  who  appeared   in  person
has  challenged the judgment and order of the  High  Court   and   submitted
that the order of the High Court acquitting the accused respondents  is  fit
to be to quashed  and  set  aside  as  the  clinching  evidence   on  record
adduced by the complainant and their witnesses  were  illegally  ignored  by
the trial court as also the  High  Court  specially   the  medical  evidence
indicating that the appellant’s  father   had  taken  treatment  as  an  in-
patient  in the Government Hospital Virudhunagar from 24.6.2005 to  1.7.2005
and  had   taken  treatment  as  in-patient  in  the  Government   Hospital,
Madurai, from  2.7.2005 to 16.7.2005 which was  for  23  days   continuously
as a consequence of the injury  sustained in the incident which    has  been
totally  ignored by the trial court  while  recording an order of  acquittal
of the accused respondents.  The appellant-in-person  relying  upon  Section
323 of the IPC has further  urged that  any hurt  which  endangers  life  or
which can put the  sufferer    in severe bodily pain for 20 days or   render
him unable to follow his ordinary  daily pursuit, could not have been  taken
lightly by the trial court so as to acquit the accused respondents even  for
the  offence under Section 323 IPC.  The appellant  has further relied  upon
  other  discrepancies   in  appreciation   of   the    evidence    of   the
prosecution/complainant while acquitting  the accused  respondents.
7.          In addition to the above,  the  appellant  has  also   contended
that the trial court  as also the High Court  failed to consider  that  fair
trial  had not been conducted by the trial court   as  all  the    witnesses
could not depose  freely and state  what exactly   had  happened.    It  has
been contended that the accused respondents  are  rough and  rowdy   persons
of disrepute and this  scared  the complainant  as  also  the  witnesses  so
much so that no one  dares to complain against them.  It was  still  further
urged  that one  Rajakani who is the wife  of the  first accused  respondent
Ganesan has illicit relation with one  BT  Selvam  who  is  the  appellant’s
divorced husband.  The trial court  also overlooked  the  incidents   caused
by the accused respondents against  whom   several  cases  are  pending   in
various courts.
8.          The appellant has further contended that the  offence  committed
by the accused respondents was a  pre-planned  crime  and  all  the  accused
persons  shared common intention  and common object to  assault  and  commit
other  offences  against  the  complainant.   The  trial  court,  therefore,
committed error  in acquitting the accused respondents  which had  been  set
aside  by the first appellate court/the Court of Sessions    which  in  turn
set aside the acquittal of  the  respondents  but  the  High  Court  wrongly
interfered with the same and  set  it  aside.   The  appellant  has  further
submitted that the investigation conducted in the matter was also   full  of
legal and procedural infirmities  and hence it was a fit  case  for  sending
the matter for retrial.
9.          Learned counsel, representing the  respondents’  case,  however,
has supported the impugned  judgment and order of the  High  Court  and  the
trial court and first of all submitted that the  order  seeking  retrial  of
the accused respondents  is wholly unwarranted   as  the  plea  for  retrial
cannot be ordered on a flimsy ground at the  instance  of  the  prosecution.
To reinforce   their submission, reliance has been placed on  the  ratio  of
the judgment of this Court delivered in the matter of  Satyajit  Banerjee  &
Ors. Vs. State of W.B. & Ors. , (2005) 1 SCC 115,  wherein  this  Court  has
held that direction for retrial should not be made in  all   or  every  case
where acquittal of accused  is for want of  adequate or  reliable  evidence.
It is only when an  extra-ordinary situation in regard  to the  first  trial
is found so as to treat  it    a farce  or  a  ‘mock  trial’,   which  would
justify   directions for retrial.   It was further  held therein   that  the
trial  Judge  has to decide the case on the  basis  of   available  evidence
recorded at the initial stage of the  trial   and  the  additional  evidence
recorded  on retrial in the event  a  retrial  had  been  permitted.    This
Court  has laid down the law on this  in the Best Bakery case (2004)  4  SCC
158, holding therein that the order for retrial  cannot be  applied  to  all
cases as that would  be  against  the  established   principle  of  criminal
jurisprudence.   In  the Best Bakery Case, the first trial was found  to  be
a farce and was described    as a ‘mock trial’.  Therefore,  the   direction
for retrial  was, in fact, for a  real  trial  and  such  an  extra-ordinary
situation  alone could justify the directions for  retrial   of  a  case  as
made by the  Supreme Court  in Best Bakery Case.
10.         In yet another  case of  Ram Bihari Yadav  vs. State  of  Bihar,
(1998) 4 SCC 517,
this Court  held that the High Court  ought not  to  have
directed the trial court  to hold the de novo trial  and  take  a   decision
on the basis of the  so-called  ‘suggested  formula’.  
But  the    Supreme
Court in this matter had refused  to set aside  the order of retrial   since
retrial  as directed by the High Court had already  commenced  and   further
evidence had already been recorded in  view  of   which  the  Supreme  Court
declined to set aside  retrial and upheld the judgment  of  the  High  Court
permitting retrial.   Thus, it cannot be overlooked that  where  prosecution
lacks in bringing  necessary evidence, the trial court ought to  invoke  its
powers under Section 311 of the Criminal Procedure Code and can  direct  for
retrial.
11.         In the light of the aforesaid legal position when the  facts  of
the instant matter are examined,
 it  emerges  that  the  appellant  although
has alleged that the order for retrial  should  have   been  passed  by  the
trial court and the High Court, nothing   specific  has  been   pointed  out
why the matter should be sent  for retrial specially when  the  two  of  the
important  witnesses had  failed  to  support   the  prosecution/complainant
version.   
Apart   from  this,  the  complainant   herself   had  failed  to
disclose as to what exactly was the genesis of the  occurrence as also   the
contents of the  abuse  which could persuade  this court  that   a  de  novo
trial of the accused  was essential.
12.         Having  thus considered and analyzed the facts and the  evidence
 that were  brought to the notice of this Court, we are  of  the  view  that
SLP (Crl.) No.4150/2011 seeking  retrial   of  the  complaint  case  bearing
Summary Trial case No. 1/2007 is not fit to be  entertained  as  it  is  not
possible  to take  a view   that the investigation was shoddy   or  suffered
from grave lacunae which would justify the parameters for  retrial   at  the
instance of the complainant  for the mere asking as it does  not   meet  the
legal requirements justifying  a  retrial.   
However,  it  so  far  as   SLP
(Crl.) No. 4149/2011  is  concerned,  it  is   clearly  reflected  from  the
impugned order of the High Court  allowing the  revision  petition   at  the
instance  of the accused respondents  that  it  has  failed  to  record  any
reason whatsoever  while  exercising  revisional  jurisdiction  for  setting
aside the order of conviction passed by the Sessions  Court  which  had  set
aside the order of acquittal   of  the  respondents  without  examining  any
evidence more particularly the  medical  evidence  led  by  the  complainant
which disclosed that the complainant’s father  had  sustained  injuries  and
was treated at a  Government  Hospital  for  several  days.     
Hence,  even
though we endorse the view of the High Court to the effect that the  instant
matter   might not have been a fit case for referring it  for  retrial,  the
High Court  certainly had  the legal obligation  to   assign  reasons  while
allowing the revision of the accused respondents stating   why  it  has  set
aside the judgment and order of the  First  Appellate  Court/Sessions  Court
while exercising  revisional   jurisdiction   specially  when  the  Sessions
Court found sufficient evidence  on record  to set aside  the  acquittal  of
the respondents   and upheld their  conviction under  Section  294  (b)  and
323 IPC.
13.         Since the High Court  has failed to record  any  reason  setting
aside the order of  the  First  Appellate  Court,  when  it  was  exercising
merely  revisional jurisdiction,  we deem it just and appropriate to  remand
the matter arising out of  Criminal Revision No. 620/2008 to the High  Court
to   reconsider  and  assign   reasons  for  setting  aside   the  order  of
conviction  and recording  an order of acquittal  of the respondents  passed
by the First Appellate Court convicting the respondents  without  specifying
and ignoring  the medical evidence although it was   considering the  matter
only  in exercise of its revisional jurisdiction  which has  limited   ambit
and scope. 
 In view of the above discussion, the appeal arising out of   SLP
(Crl.) 4149/2011  shall  be treated as  allowed in  view  of  the  order  of
remand of the matter  to  the  High  Court  for   fresh  consideration.   As
already stated, appeal arising  out  of  SLP  (Crl.)  No.  4150/2011  stands
dismissed.


                                                                 …………………………J
                                                             (G.S.  Singhvi)



                                                                 …………………………J
                                                          (Gyan Sudha Misra)

New Delhi;
December 09, 2013
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