ISSAC @ KISHOR versus RONALD CHERIYAN AND ORS. on 23 January 2018

[2018] 1 S.C.R. 217

ISSAC @ KISHOR

v.

RONALD CHERIYAN AND ORS.

(Criminal Appeal No. 165 of 2018)

JANUARY 23, 2018

[RANJAN GOGOI AND R. BANUMATHI, JJ.]

Code of Criminal Procedure, 1973– s.386(a) – Powers ofAppellate Court – Robbery – Murder of widow – Appellant-accusedno.1, who was living with deceased for helping her in agriculturalwork, was arrested – Appellant gave disclosure statement on thebasis of which accused no.2 was also arrested – Charge sheet filedu/ss. 302, 394 r/w. 34, IPC – Trial court convicted accused no.2 u/ss. 302 and 394, IPC however, acquitted the appellant-accused no.1– Revision petition by son of the deceased challenging acquittal ofappellant – High Court remitted the matter back to the trial courtfor re-trial – Propriety of – Held: Under s.386(a), the Court mayreverse the order of acquittal and direct further enquiry or that theaccused may be re-tried or may find him guilty and pass sentenceon him according to law – Re-trial cannot be ordered when there isa mere irregularity or where it does not cause any prejudice – Powerto order re-trial should be exercised only in exceptional cases – Inthe present case, the High Court found that even though the trialcourt framed an issue on the point of sharing of common intentionof accused nos. 1 and 2 in committing the offence, the omission toframe charges u/s.34 IPC materially affected the trial – Discretionexercised by High Court u/s.386(a) directing re-trial cannot be saidto be erroneous warranting interference – Trial court to proceedwith the matter as per the directions of High Court and dispose ofthe matter as expeditiously as possible.

K.Chinnaswamy Ready v. State of Andhra Pradesh and Another AIR 1962 SC 1788 : [1963] SCR 412 – reliedon.

Mahendra Pratap Singh v. Sarju Singh and AnotherAIR 1968 SC 707 :[1968] SCR 287; Matukdhari Singhand others v. Janardan Prasad AIR 1966 SC 356 :[1966] SCR 255; Abinash Chandra Bose v. Bimal

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AKrishna Sen and AnotherAIR 1963 SC 316 : [1963]SCR 564;Rajeshwar Prasad Misra v. State of WestBengal and AnotherAIR 1965 SC 1887 : [1966] SCR 178 – referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.165 of 2018.

From the Judgment and Order dated 25.07.2012 of the High CourtDof Kerala at Ernakulam in Criminal Revision Petition No. 3413 of 2008.

Sanand Ramakrishnan, Rajeev Mishra, Madan M. Bora, Advs.for the Appellant.

Nishe Rajen Shonker, Ms. Anu K. Joy, Alim, Reegan S. Bel, Advs.for the Respondents.E

The Order of the Court was delivered by

R. BANUMATHI, J. 1. Leave granted.

2. This appeal arises out of the judgment dated 25.07.2012 passedby Kerala High Court at Ernakulam allowing Criminal Revision PetitionFNo.3413 of 2008 preferred by respondent no.1 herein thereby settingaside the acquittal of the appellant-accused no.1 for the offencespunishable under Section 302 IPC and Section 394 IPC read with Section34 IPC and further remitting the matter back to the trial Court for retrial.

3. Briefly stated case of the prosecution is that, the deceased-GBrijitha was sixty three years old widow and used to stay alone in herhouse which was situated in five acres of agricultural land. Natarajan,father of accused no.1 used to stay in the same house where Brijithawas staying. He was a permanent employee of Brijitha. Respondentno.1-Ronald Cheriyan, son of the deceased, for some reasons, directedNatarajan not to stay in the house and therefore, Natarajan discontinuedH

his employment. Thereafter, for helping the deceased in agriculturalwork, the appellant-accused no.1 started staying with the deceased inher house. On 06.02.2006 in the midnight, sister-in-law of deceasedwho was staying at a distance of 50 meters from the house of thedeceased, heard cries from the house of deceased. On hearing the criesof deceased, sister-in–law of deceased got awaken her son Cheriyan @Shabin (PW-1). Then, PW-1 went to the house of deceased and askedthe appellant-accused no.1 to open the door of the kitchen; but theappellant-accused no.1 told him that he being tied with rope could notopen 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 inunconscious state in the front room of the house and the appellant-accusedno.1 being tied with rope in the kitchen. The appellant-accused no.1 toldPW-1 that five thieves had entered the house and after suffocating thedeceased took away all the valuable gold ornaments and cash from thehouse. PW-1 informed about the incident to respondent no.1-RonaldCheriyan, eldest son of the deceased, and then they took the deceasedto the St. John Hospital, Kattappana where she was declared dead. Atabout 04.00 a.m., PW-1 went to Kattappana police station and hisstatement (Ex.P1) was recorded by PW-22-Sub-Inspector of Police, onthe basis of which, case in Crime No. 49 of 2006 was registered againstfive identifiable persons under Section 396 IPC.

4. After registration of FIR, the Inspector of Police, duringinvestigation prepared the spot panchnama (scene mahazar) and alsotaken the finger prints from the scene of crime. The appellant-accusedno.1 was arrested on 07.02.2006 at 06.20 p.m. who gave a disclosurestatement; based on which, accused no.2 was located and arrested onthe same day at 08.00 p.m. Confession statement of accused no.2 ledto recovery of gold ornaments, currency notes and shawl which wasused 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 causeddue to smothering. After completion of the investigation, charge-sheetwas filed against the appellant-accused no.1 under Section 394 IPC andSection 302 IPC read with Section 34 IPC.

5. The trial court convicted accused no.2 under Sections 302 and394 IPC inter alia on the following grounds:- a) presence of accusedno.1 has been confirmed in the house of the deceased due to the fact AB

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Athat finger prints of the accused were found on the objects recoveredfrom the place of crime; b) ornaments of the deceased and the currencynotes were recovered from the house of accused no.2; c) recovery ofshawl which was used in the commission of offence containing hair ofthe deceased, from the house of accused no.2; and d) that accused no.2was in dire need of money to pay back his debts. The trial court hasBacquitted the appellant-accused no.1 holding that the disclosure statementgiven by the appellant regarding involvement of accused no. 2 and locationof the house of accused no.2, are not sufficient grounds to establish theguilt of appellant. The trial court held that the chance finger prints of theappellant-accused no.1 collected from the place of occurrence wasCimmaterial as he was working as domestic help in the house of deceased.

6. Being aggrieved by acquittal of appellant, respondent no.1-eldestson of the deceased filed a criminal revision challenging the acquittal ofthe appellant-accused no.1. Accused no.2 also filed a criminal appealbefore the High Court challenging his conviction and sentence.D

7. The High Court held that the trial court has committedirregularity in omitting to frame charges under Section 34 IPC, eventhough the trial court itself has framed an issue on the point of sharing ofcommon intention of accused nos.1 and 2 in committing robbery andmurder of the deceased which has materially affected the trial. TheEHigh Court further held that the fingerprint expert who had prepared thereport (Ex.P8) ought to have been examined before the trial court andnon-examination of that witness has caused prejudice. The High Courthas taken note of that the trial court has failed to evaluate the possibilityof accused no.2 in committing the crime alone without the aid of theappellant and also that there was no injury on the appellant when he wasFfound tied with the rope in the house of deceased.

8. We have heard learned counsel for the parties and perused theimpugned judgment and materials on record. The point falling forconsideration is whether the High Court was right in setting aside thejudgment of the trial court and remitting the matter back to the trial courtGfor retrial.

9. Section 386 Cr.P.C. defines the powers of the Appellate Courtin dealing with the appeals. The powers enumerated thereon are vestedin all courts, whether the High Court or subordinate courts, except thatClause (a) of the section is restricted to the powers of the High Court H

[R. BANUMATHI, J.]

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 allcourts. The power to direct the accused to be retried has been conferredon the High Court not only when it deals with an appeal against acquittalbut also when it deals with an appeal against conviction. Section 386Cr.P.C. reads as under:- “Section 386:- After perusing such record and hearing theappellant or his pleader, if he appears, and the Public Prosecutorif he appears, and in case of an appeal under Section 377 or Section378, the accused, if he appears, the Appellate Court may, if itconsiders that there is no sufficient ground for interfering, dismissthe appeal, or may :- (a) In an appeal from an order of acquittal, reverse such orderand direct that further inquiry be made, or that the accused bere-tried or committed for trial, as the case may be, or find himguilty and pass sentence on him according to law; (b) In an appeal from a conviction:-

(i) Reverse the finding and sentence and acquit or dischargethe accused, or order him to be re-tried by a Court ofCompetent jurisdiction subordinate to such Appellate Courtor committed for trial, or

(ii) Alter the finding, maintaining the sentence, or

(iii) With or without altering the finding, alter the nature or theextent, or the nature and extent, of the sentence, but not soas to enhance the same;

............”

10. Under Section 386(a) and (b)(i), the power to direct retrialhas been conferred upon the Appellate Court when it deals either withan appeal against judgment of conviction or an appeal against acquittal(High Court). There is a difference between the powers of an AppellateCourt under Clauses (a) and (b). Under Clause (b), the Court is requiredto touch the finding and sentence, but under Clause (a), the Court mayreverse the order of acquittal and direct that further enquiry be made orthe accused may be retried or may find him guilty and pass sentence onhim according to law.

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A11. Normally, retrial should not be ordered when there is someinfirmity rendering the trial defective. A retrial may be ordered whenthe original trial has not been satisfactory for particular reasons like...,appropriate charge not framed, evidence wrongly rejected which couldhave been admitted or evidence admitted which could have been rejectedetc. Retrial cannot be ordered when there is a mere irregularity orBwhere it does not cause any prejudice, the Appellate Court may notdirect retrial. The power to order retrial should be exercised only inexceptional cases.

12. In K.Chinnaswamy Ready v. State of Andhra Pradeshand Another, AIR 1962 SC 1788, the accused had been convicted byCthe trial court. The Sessions Court took the view that an important pieceof evidence held against the accused was inadmissible and acquittedhim. The High Court in revision by the de facto complainant held thatthe evidence held to be inadmissible by the Sessions Court was admissibleand set aside the acquittal directing the accused to be retried on theDsame charges. The Supreme Court agreed with the High Court that theacquittal deserved to be set aside. In para (7), this Court has spelt outwhat could be termed as exceptional circumstances which reads asunder:- “7. It is true that it is open to a High Court in revision to set asideEan order of acquittal even at the instance of private parties, thoughthe State may not have thought fit to appeal; but this jurisdictionshould in our opinion be exercised by the High Court only inexceptional cases, when there is some glaring defect in theprocedure or there is a manifest error on a point of law andconsequently there has been a flagrant miscarriage of justice.FSub-section (4) of Section 439 forbids a High Court from convertinga finding of acquittal into one of conviction and that makes it allthe more incumbent on the High Court to see that it does notconvert the finding of acquittal into one of conviction by the indirectmethod of ordering retrial, when it cannot itself directly convert aGfinding of acquittal into a finding of conviction. This placeslimitations on the power of the High Court to set aside a finding ofacquittal in revision and it is only in exceptional cases that thispower should be exercised. It is not possible to lay down the criteriafor determining such exceptional cases which would cover allcontingencies. We may however indicate some cases of this kind, H

which would in our opinion justify the High Court in interferingwith a finding of acquittal in revision. These cases may be: wherethe trial court has no jurisdiction to try the case but has still acquittedthe accused, or where the trial court has wrongly shut out evidencewhich the prosecution wished to produce, or where the appealcourt has wrongly held evidence which was admitted by the trialcourt to be inadmissible, or where material evidence has beenoverlooked either by the trial court or by the appeal court, or wherethe acquittal is based on a compounding of the offence, which isinvalid under the law. These and other cases of similar nature canproperly be held to be cases of exceptional nature, where theHigh Court can justifiably interfere with an order of acquittal;andin such a case it is obvious that it cannot be said that the HighCourt was doing indirectly what it could not do directly in view ofthe provisions of Section 439(4)......” (underlining added)

The same principle was again reiterated in Mahendra PratapSingh v. Sarju Singh and Another AIR 1968 SC 707.

13. In Matukdhari Singh and others v. Janardan Prasad, AIR1966 SC 356, accused was tried for offences under Sections 420, 466,406 and 465/471 IPC and acquitted. The trial court did not frame chargeunder Section 467 IPC regarding which there were prima facie materialsavailable, 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 courtreferred to earlier decisions in Abinash Chandra Bose v. Bimal KrishnaSen and Another AIR 1963 SC 316 and Rajeshwar Prasad Misra v.State of West Bengal and Another AIR 1965 SC 1887 with referenceto the facts of those cases and emphasized that wide discretion availablewith the Appellate Court in ordering retrial.

14. In appeal against acquittal, in exceptional circumstances, theHigh Court may set aside the order of acquittal even at the instance ofprivate 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 inexceptional circumstances when there is glaring defect in the conductof trial which has materially affected the trial or caused prejudice. Inthe present case, the High Court found that even though the trial courthas framed an issue on the point of sharing of common intention ofaccused Nos. 1 and 2 in committing the offence, the omission to frame A

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Acharges under Section 34 IPC has materially affected the trial. TheHigh Court further observed that the fingerprint expert who preparedEx. P8 ought to have been examined and other circumstances emergingout of evidence ought to have been examined by the trial court. TheHigh Court further observed that because of the omission to frame thecharges under Section 34 IPC, in spite of framing the issue of commonBintention, the trial court has not examined the evidence in properperspective, which according to the High Court has materially affectedthe trial which is called for retrial. The discretion exercised by the HighCourt under Section 386 (a) Cr.P.C. directing retrial with certain directionscannot be said to be erroneous warranting interference.

C15. In the result, the appeal is dismissed. The trial court shallproceed with the matter as per the directions of the High Court anddispose of the matter as expeditiously as possible. No costs.

DDivya Pandey

Appeal dismissed.

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