ISSAC @ KISHORversusRONALD CHERIYAN AND ORS.

                        [2018] 1 S.C.R. 217                             217


                        ISSAC @ KISHOR                                  A
                                 v.
                RONALD CHERIYAN AND ORS.
                 (Criminal Appeal No. 165 of 2018)
                        JANUARY 23, 2018                                B
        [RANJAN GOGOI AND R. BANUMATHI, JJ.]
       Code of Criminal Procedure, 1973 – s.386(a) – Powers of
Appellate Court – Robbery – Murder of widow – Appellant-accused
no.1, who was living with deceased for helping her in agricultural
                                                                        C
work, was arrested – Appellant gave disclosure statement on the
basis of which accused no.2 was also arrested – Charge sheet filed
u/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 of
appellant – High Court remitted the matter back to the trial court      D
for re-trial – Propriety of – Held: Under s.386(a), the Court may
reverse the order of acquittal and direct further enquiry or that the
accused may be re-tried or may find him guilty and pass sentence
on him according to law – Re-trial cannot be ordered when there is
a mere irregularity or where it does not cause any prejudice – Power
                                                                        E
to order re-trial should be exercised only in exceptional cases – In
the present case, the High Court found that even though the trial
court 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 u/s.34 IPC materially affected the trial – Discretion
exercised by High Court u/s.386(a) directing re-trial cannot be said    F
to be erroneous warranting interference – Trial court to proceed
with the matter as per the directions of High Court and dispose of
the matter as expeditiously as possible.
      K. Chinnaswamy Ready v. State of Andhra Pradesh and
      Another AIR 1962 SC 1788 : [1963] SCR 412 – relied                G
      on.
      Mahendra Pratap Singh v. Sarju Singh and Another
      AIR 1968 SC 707 : [1968] SCR 287; Matukdhari Singh
      and others v. Janardan Prasad AIR 1966 SC 356 :
      [1966] SCR 255; Abinash Chandra Bose v. Bimal                     H
                             217
218             SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A           Krishna Sen and Another AIR 1963 SC 316 : [1963]
            SCR 564; Rajeshwar Prasad Misra v. State of West
            Bengal and Another AIR 1965 SC 1887 : [1966] SCR
            178 – referred to.
                                Case Law Reference
B           [1963] SCR 412               relied on                 Para 12
            [1968] SCR 287               referred to               Para 12
            [1966] SCR 255               referred to               Para 13
            [1963] SCR 564               referred to               Para 13
C
            [1966] SCR 178               referred to               Para 13
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      165 of 2018.
            From the Judgment and Order dated 25.07.2012 of the High Court
D     of 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.
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            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 passed
      by Kerala High Court at Ernakulam allowing Criminal Revision Petition
F     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-
G     Brijitha was sixty three years old widow and used to stay 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
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           ISSAC @ KISHOR v. RONALD CHERIYAN                                 219
                    [R. BANUMATHI, J.]

his employment. Thereafter, for helping the deceased in agricultural         A
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 @
                                                                             B
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   C
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
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
                                                                             D
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         E
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          F
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 investigation, charge-sheet
was filed against the appellant-accused no.1 under Section 394 IPC and       G
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
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220             SUPREME COURT REPORTS                            [2018] 1 S.C.R.


A     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
B
      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
C     immaterial as he was working as domestic help in the house of deceased.
             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.
D            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
E     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
F     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
      judgment of the trial court and remitting the matter back to the trial court
G     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
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            ISSAC @ KISHOR v. RONALD CHERIYAN                                   221
                     [R. BANUMATHI, J.]

only, since an appeal against an order of acquittal lies only to that court,    A
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:-
                                                                                B
      “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 :-                                                     C

      (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;
                                                                                D
      (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                                        E
          (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;
                                                                                F
          ............”
       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        G
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.
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222             SUPREME COURT REPORTS                           [2018] 1 S.C.R.


A            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
B
      where it does not cause any prejudice, the Appellate 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
C     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
D     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
E           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.
F           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
G           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 indicate some cases of this kind,
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            ISSAC @ KISHOR v. RONALD CHERIYAN                                       223
                     [R. BANUMATHI, J.]

      which would in our opinion justify the High Court in interfering              A
      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
                                                                                    B
      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          C
      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.                                   D
        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.            E
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 1965 SC 1887 with reference
to the facts of those cases and emphasized that wide discretion available           F
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        G
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               H
224             SUPREME COURT REPORTS                            [2018] 1 S.C.R.


A     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
B
      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.
C           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.


D     Divya Pandey                                                  Appeal dismissed.




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