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

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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

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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

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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.

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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

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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

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(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

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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

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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

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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

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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

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