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Thursday, January 25, 2018

omission to frame the charges under Section 34 IPC, in spite of framing the issue of common intention, the trial court has not examined the evidence in proper perspective, which according to the High Court has materially affected the trial which is called for retrial. The discretion exercised by the High Court under Section 386 (a) Cr.P.C. directing retrial with certain directions cannot be said to be erroneous warranting interference. ISSAC @ KISHOR .....Appellant Versus RONALD CHERIYAN AND ORS. ....Respondents

REPORTABLE
IN SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.165 OF 2018
(Arising out of SLP(Crl.) No. 9571 of 2012)
ISSAC @ KISHOR .....Appellant
Versus
RONALD CHERIYAN AND ORS. ....Respondents
O R D E R
R. BANUMATHI, J.
Leave granted.
2. This appeal arises out of the judgment dated 25.07.2012 passed
by Kerala High Court at Ernakulam allowing Criminal Revision Petition
No.3413 of 2008 preferred by respondent no.1 herein thereby setting
aside the acquittal of the appellant-accused no.1 for the offences
punishable under Section 302 IPC and Section 394 IPC read with
Section 34 IPC and further remitting the matter back to the trial Court
for retrial.
3. Briefly stated case of the prosecution is that, the
deceased-Brijitha was sixty three years old widow and used to stay
Page No. 1 of 11
alone in her house which was situated in five acres of agricultural land.
Natarajan, father of accused no.1 used to stay in the same house
where Brijitha was staying. He was a permanent employee of Brijitha.
Respondent no.1-Ronald Cheriyan, son of the deceased, for some
reasons, directed Natarajan not to stay in the house and therefore,
Natarajan discontinued his employment. Thereafter, for helping the
deceased in agricultural work, the appellant-accused no.1 started
staying with the deceased in her house. On 06.02.2006 in the
midnight, sister-in-law of deceased who was staying at a distance of
50 meters from the house of the deceased, heard cries from the house
of deceased. On hearing the cries of deceased, sister-in–law of
deceased got awaken her son Cheriyan @ Shabin (PW-1). Then,
PW-1 went to the house of deceased and asked the appellant-accused
no.1 to open the door of the kitchen; but the appellant-accused no.1
told him that he being tied with rope could not open the door and
asked PW-1 to take entry from the front door. PW-1, on entering the
house from front door, found the deceased lying in unconscious state
in the front room of the house and the appellant-accused no.1 being
tied with rope in the kitchen. The appellant-accused no.1 told PW-1
that five thieves had entered the house and after suffocating the
Page No. 2 of 11
deceased took away all the valuable gold ornaments and cash from
the house. PW-1 informed about the incident to respondent
no.1-Ronald Cheriyan, eldest son of the deceased, and then they took
the deceased to the St. John Hospital, Kattappana where she was
declared dead. At about 04.00 a.m., PW-1 went to Kattappana police
station and his statement (Ex.P1) was recorded by
PW-22-Sub-Inspector of Police, on the basis of which, case in Crime
No. 49 of 2006 was registered against five identifiable persons under
Section 396 IPC.
4. After registration of FIR, the Inspector of Police, during
investigation prepared the spot panchnama (scene mahazar) and also
taken the finger prints from the scene of crime. The appellant-accused
no.1 was arrested on 07.02.2006 at 06.20 p.m. who gave a disclosure
statement; based on which, accused no.2 was located and arrested on
the same day at 08.00 p.m. Confession statement of accused no.2 led
to recovery of gold ornaments, currency notes and shawl which was
used to suffocate the deceased, from the house of accused no.2.
Also, the grey hair found on the shawl were preserved for further
investigation. The post-mortem report disclosed that death of the
deceased was caused due to smothering. After completion of the
Page No. 3 of 11
investigation, charge-sheet was filed against the appellant-accused
no.1 under Section 394 IPC and Section 302 IPC read with Section 34
IPC.
5. The trial court convicted accused no.2 under Sections 302 and
394 IPC inter alia on the following grounds:- a) presence of accused
no.1 has been confirmed in the house of the deceased due to the fact
that finger prints of the accused were found on the objects recovered
from the place of crime; b) ornaments of the deceased and the
currency notes were recovered from the house of accused no.2; c)
recovery of shawl which was used in the commission of offence
containing hair of the deceased, from the house of accused no.2; and
d) that accused no.2 was in dire need of money to pay back his debts.
The trial court has acquitted the appellant-accused no.1 holding that
the disclosure statement given by the appellant regarding involvement
of accused no. 2 and location of the house of accused no.2, are not
sufficient grounds to establish the guilt of appellant. The trial court
held that the chance finger prints of the appellant-accused no.1
collected from the place of occurrence was immaterial as he was
working as domestic help in the house of deceased.
Page No. 4 of 11
6. Being aggrieved by acquittal of appellant, respondent no.1-eldest
son of the deceased filed a criminal revision challenging the acquittal
of the appellant-accused no.1. Accused no.2 also filed a criminal
appeal before the High Court challenging his conviction and sentence.
7. The High Court held that the trial court has committed irregularity
in omitting to frame charges under Section 34 IPC, even though the
trial court itself has framed an issue on the point of sharing of common
intention of accused nos.1 and 2 in committing robbery and murder of
the deceased which has materially affected the trial. The High Court
further held that the fingerprint expert who had prepared the report
(Ex.P8) ought to have been examined before the trial court and
non-examination of that witness has caused prejudice. The High
Court has taken note of that the trial court has failed to evaluate the
possibility of accused no.2 in committing the crime alone without the
aid of the appellant and also that there was no injury on the appellant
when he was found tied with the rope in the house of deceased.
8. We have heard learned counsel for the parties and perused the
impugned judgment and materials on record. The point falling for
consideration is whether the High Court was right in setting aside the
Page No. 5 of 11
judgment of the trial court and remitting the matter back to the trial
court for retrial.
9. Section 386 Cr.P.C. defines the powers of the Appellate Court in
dealing with the appeals. The powers enumerated thereon are vested
in all courts, whether the High Court or subordinate courts, except that
Clause (a) of the section is restricted to the powers of the High Court
only, since an appeal against an order of acquittal lies only to that
court, while Clause (b) of the section is not so restricted and embraces
all courts. The power to direct the accused to be retried has been
conferred on the High Court not only when it deals with an appeal
against acquittal but also when it deals with an appeal against
conviction. Section 386 Cr.P.C. reads as under:-
"Section 386:- After perusing such record and hearing the
appellant or his pleader, if he appears, and the Public Prosecutor if
he appears, and in case of an appeal under Section 377 or Section
378, the accused, if he appears, the Appellate Court may, if it
considers that there is no sufficient ground for interfering, dismiss
the appeal, or may :-
(a) In an appeal from an order of acquittal, reverse such
order and direct that further inquiry be made, or that the
accused be re-tried or committed for trial, as the case
may be, or find him guilty and pass sentence on him
according to law;
(b) In an appeal from a conviction:-
(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
Page No. 6 of 11
(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;
............"
10. Under Section 386(a) and (b)(i), the power to direct retrial has
been conferred upon the Appellate Court when it deals either with an
appeal against judgment of conviction or an appeal against acquittal
(High Court). There is a difference between the powers of an
Appellate Court under Clauses (a) and (b). Under Clause (b), the
Court is required to touch the finding and sentence, but under Clause
(a), the Court may reverse the order of acquittal and direct that further
enquiry be made or the accused may be retried or may find him guilty
and pass sentence on him according to law.
11. Normally, retrial should not be ordered when there is some
infirmity rendering the trial defective. A retrial may be ordered when
the original trial has not been satisfactory for particular reasons like...,
appropriate charge not framed, evidence wrongly rejected which could
have been admitted or evidence admitted which could have been
rejected etc. Retrial cannot be ordered when there is a mere
irregularity or where it does not cause any prejudice, the Appellate
Page No. 7 of 11
Court may not direct retrial. The power to order retrial should be
exercised only in exceptional cases.
12. In K. Chinnaswamy Ready v. State of Andhra Pradesh and
Another, AIR 1962 SC 1788, the accused had been convicted by the
trial court. The Sessions Court took the view that an important piece
of evidence held against the accused was inadmissible and acquitted
him. The High Court in revision by the de facto complainant held that
the evidence held to be inadmissible by the Sessions Court was
admissible and set aside the acquittal directing the accused to be
retried on the same charges. The Supreme Court agreed with the
High Court that the acquittal deserved to be set aside. In para (7), this
Court has spelt out what could be termed as exceptional
circumstances which reads as under:-
"7. It is true that it is open to a High Court in revision to set aside an
order of acquittal even at the instance of private parties, though the
State may not have thought fit to appeal; but this jurisdiction should
in our opinion be exercised by the High Court only in exceptional
cases, when there is some glaring defect in the procedure or there
is a manifest error on a point of law and consequently there has
been a flagrant miscarriage of justice. Sub-section (4) of Section
439 forbids a High Court from converting a finding of acquittal into
one of conviction and that makes it all the more incumbent on the
High Court to see that it does not convert the finding of acquittal
into one of conviction by the indirect method of ordering retrial,
when it cannot itself directly convert a finding of acquittal into a
finding of conviction. This places limitations on the power of the
High Court to set aside a finding of acquittal in revision and it is only
in exceptional cases that this power should be exercised. It is not
possible to lay down the criteria for determining such exceptional
cases which would cover all contingencies. We may however
Page No. 8 of 11
indicate some cases of this kind, which would in our opinion justify
the High Court in interfering with a finding of acquittal in revision.
These cases may be: where the trial court has no jurisdiction to try
the case but has still acquitted the accused, or where the trial court
has wrongly shut out evidence which the prosecution wished to
produce, or where the appeal court has wrongly held evidence
which was admitted by the trial court to be inadmissible, or where
material evidence has been overlooked either by the trial court or
by the appeal court, or where the acquittal is based on a
compounding of the offence, which is invalid under the law. These
and other cases of similar nature can properly be held to be cases
of exceptional nature, where the High Court can justifiably interfere
with an order of acquittal; and in such a case it is obvious that it
cannot be said that the High Court was doing indirectly what it
could not do directly in view of the provisions of Section 439(4)......"
(underlining added)
The same principle was again reiterated in Mahendra Pratap Singh v.
Sarju Singh and Another AIR 1968 SC 707.
13. In Matukdhari Singh and others v. Janardan Prasad, AIR 1966
SC 356, accused was tried for offences under Sections 420, 466, 406
and 465/471 IPC and acquitted. The trial court did not frame charge
under Section 467 IPC regarding which there were prima facie
materials available, that is an offence triable exclusively by the
Sessions Court. The High Court, in appeal, set aside the acquittal and
ordered retrial. The Supreme Court dismissed the appeal preferred
before it. The court referred to earlier decisions in Abinash Chandra
Bose v. Bimal Krishna Sen and Another AIR 1963 SC 316 and
Rajeshwar Prasad Misra v. State of West Bengal and Another AIR
Page No. 9 of 11
1965 SC 1887 with reference to the facts of those cases and
emphasized that wide discretion available with the Appellate Court in
ordering retrial.
14. In appeal against acquittal, in exceptional circumstances, the
High Court may set aside the order of acquittal even at the instance of
private parties, though the State may not have thought it fit for appeal.
But it is to be emphasized that this jurisdiction is to be exercised only
in exceptional circumstances when there is glaring defect in the
conduct of trial which has materially affected the trial or caused
prejudice. In the present case, the High Court found that even though
the trial court has framed an issue on the point of sharing of common
intention of accused Nos. 1 and 2 in committing the offence, the
omission to frame charges under Section 34 IPC has materially
affected the trial. The High Court further observed that the fingerprint
expert who prepared Ex. P8 ought to have been examined and other
circumstances emerging out of evidence ought to have been examined
by the trial court. The High Court further observed that because of the
omission to frame the charges under Section 34 IPC, in spite of
framing the issue of common intention, the trial court has not
examined the evidence in proper perspective, which according to the
Page No. 10 of 11
High Court has materially affected the trial which is called for retrial.
The discretion exercised by the High Court under Section 386 (a)
Cr.P.C. directing retrial with certain directions cannot be said to be
erroneous warranting interference.
15. In the result, the appeal is dismissed. The trial court shall
proceed with the matter as per the directions of the High Court and
dispose of the matter as expeditiously as possible. No costs.
.....…….…………...………J.
 [RANJAN GOGOI]
....…………….……………J.
 [R. BANUMATHI]
New Delhi;
January 23, 2018
Page No. 11 of 11

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