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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