MARY PAPPA JEBAMANI Vs GENESAN .
Bench: G.S. SINGHVI,GYAN SUDHA MISRA
Case number: Crl.A. No.-002061-002062 / 2013
Diary number: 8233 / 2011
Advocates: PETITIONER-IN-PERSON Vs
M. A. CHINNASAMY
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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
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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
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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
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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,
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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
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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
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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
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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
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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.
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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
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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
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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,
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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
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(Gyan Sudha Misra)
New Delhi; December 09, 2013
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