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Ramakant Ram & Ors vs The State Of Bihar on 28 May, 2018

Patna High Court CR. APP (SJ) No.79 of 2016 dt.28-05-2018 1

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.79 of 2016
Arising Out of PS.Case No. -39 Year- 2012 Thana -TIYAR District- BHOJPUR

1. Ramakant Ram

2. Ramchandra Ram, both sons of Shyam Lal Ram

3. Shyamlal Ram, son of Late Ram Bachan Ram

4. Urmila Devi, wife of Ram Chandra Ram, All resident of village – Hetampur,
Police Station – Tiyar, District – Bhojpur.

…. …. Appellant/s
Versus
The State of Bihar

…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. Baxi S. R. P. Sinha- Sr. Advocate
Mr. Mrigendra Pratap Singh-Advocate
For the Respondent/s : Mr. Sujit Kumar Singh-A.P.P.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 28-05-2018

All the appellants namely Ramakant Ram, Ramchandra

Ram, Shyamlal Ram and Urmila Devi have been found guilty for an

offence punishable under Section 304B of the I.P.C. as well as

Section 201 of the I.P.C. vide judgment of conviction dated

14.01.2016 and Ramakant Ram has been sentenced to undergo R.I.

for ten years under Section 304B of the I.P.C., R.I. for two years as

well as fined appertaining to Rs.2000/- and in default thereof, to

undergo S.I. for three months, additionally, under Section 201 of the

I.P.C. while remaining appellants namely Ramchandra Ram,

Shyamlal Ram and Urmila Devi have been sentenced to undergo R.I.

for seven years under Section 304B of the I.P.C. and R.I. for two
Patna High Court CR. APP (SJ) No.79 of 2016 dt.28-05-2018 2

years as well as to pay fine appertaining to Rs.2,000/- and in default

thereof, to undergo S.I. for three months, additionally, under Section

201 of the I.P.C. and further, all the sentences to run concurrently vide

order of sentence dated 20.01.2016 passed by the Sessions Judge,

Bhojpur at Ara in Sessions Trial No.113 of 2013.

2. PW-6, Gorakh Ram, brother of deceased Sobha Devi

filed written report on 26.07.2012 divulging the fact that his sister

Sobha Devi was married with Ramakant Ram, son of Shyam Lal

Ram, village-Hetampur, P.S.-Tiyar, District-Bhojpur in the month of

Jeyeshtha of Year 2010. At the time of marriage, they have gifted

according to their means. After marriage, his sister had gone to her

sasural and soon thereafter, returned back. Her Gauna has been

effected on 25.05.2012. While staying at her sasural after Gauna, his

suster used to telephonically inform her mother that her husband

Ramakant Ram, mother-in-law Gagri Devi, Bhasur Ramchandra Ram

were insisting upon motorcycle as well as golden chain and for that,

they were threatening that they will not allow her stay or will be

murdered. On 16.07.2012, his sister during course of conversation had

disclosed that she is being physically tortured by her sasuralwala. Her

Gotni, wife of Ramchandra Ram and father-in-law Shyamlal Ram

were threatening that as her father failed to oblige them by way of

providing motorcycle, golden chain, therefore, she will be murdered

and then, her husband will be remarried. Today, i.e. on 26.07.2012,
Patna High Court CR. APP (SJ) No.79 of 2016 dt.28-05-2018 3

somebody belonging to village-Hetampur informed over phone that

her sister has been murdered by her sasuralwala and then, her dead

body has been disposed of. After receiving such information, he along

with his mother, brother, elder brother-in-law along with others

rushed to village-Hetampur where found the house of his sister closed,

lock was hanging, all the family members were absconding.

3. On the basis of the aforesaid written report, Tiyar

P.S. Case No.39 of 2012 was registered under Section 304B/ 201/34

of the I.P.C. followed with an investigation. After completion of

investigation, chargesheet was submitted under the aforesaid Sections

whereunder cognizance had also been taken.

4. Trial commenced after framing of charge and during

course thereof, prosecution had examined altogether seven PWs, who

are PW-1, Ganesh Ram, PW-2, Rajendra Ram, PW-3, Nagendra Ram,

PW-4, Motichand Ram, PW-5, Sanmukha Devi, PW-6, Gorakh Ram

and PW-7, Munnu Prasad. Side by side, had also exhibited, signature

of witness Ganesh Ram over written report as Exhibit-1, written

report including signature of Moti Chand Ram as Exhibit-2, signature

of informant over written report as Exhibit-3, endorsement of PW-7

over written report as Exhibit-4, formal F.I.R. as Exhibit-5,

inculpatory extra-judicial confessional statement of accused Shyamlal

Ram as Exhibit-6, chargesheet as Exhibit-7.

Patna High Court CR. APP (SJ) No.79 of 2016 dt.28-05-2018 4

5. From the mode of cross-examination as well as

statement recorded under Section 313 of the Cr.P.C. the defence of

the appellants happen to be that of innocence. It has also been pleaded

that on account of stomachache the deceased died, whereupon the

members of the Naiharwala were informed, who participated during

course of funeral and then thereafter, developed dishonest intention in

order to squeeze money, got this case filed. However, neither ocular

nor documentary evidence has been adduced on that very score.

6. During course of hearing, the L.C. Record along with

judgment impugned has been gone through. From the charge, which

the learned lower Court had incorporated in Paragraph-5 of the

judgment also, it is apparent that charge under Section 304B/34,

201/34, 302/34 of the I.P.C. (alternatively) have been framed against

the accused. No charge under Section 498A of the I.P.C. in the

background of presence of alternative charge under Section 302 of the

I.P.C. was taken into cognizance. Furthermore, it is apparent from the

trend of the judgment that learned lower Court was very much

confused whether the allegation whatever been attributed would be

depicting an offence of murder or dowry death. That happens to be

reason behind that while discussing the argument having at the end of

the appellants/ accused recorded under Para-17 of the judgment, the

learned lower Court though took notice of the submission having so

advanced at the end of the appellants/ accused that no offence under
Patna High Court CR. APP (SJ) No.79 of 2016 dt.28-05-2018 5

Section 302 of the I.P.C. is made out, but the learned lower Court

failed to scrutinize the evidences available on the record whether the

allegations whatever been attributed against the appellants/ accused

were attracting Section 498A of the I.P.C., Section 302 of the I.P.C. or

under Section 304B of the I.P.C. Furthermore, the learned lower

Court had not formed an opinion on that very score followed with

recording reason therefor as well as finding whether appellants are

being acquitted for an offence punishable under Section 302/ 34 of the

I.P.C. or not. That means to say, irrespective of the fact that appellants

have been convicted and sentenced for under Section 304B/ 34 of the

I.P.C., the learned lower Court was still confused with regard to

applicability of Section 302 of the I.P.C. and allowed the chapter

opened which ought not to be as, the judgment is to be in terms of

Section 354 of the Cr.P.C. whereunder the conclusion should be in

definite words depicting the judicial approach during course of

scrutiny of the evidences available on the record.

7. In Issac @ Kishor vs. Ronald Cheriyan and others

reported in 2018 (2) P.L.J.R. 57 (SC), it has been held:-

“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
Patna High Court CR. APP (SJ) No.79 of 2016 dt.28-05-2018 6

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

(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; …………”

Patna High Court CR. APP (SJ) No.79 of 2016 dt.28-05-2018 7

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 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
Patna High Court CR. APP (SJ) No.79 of 2016 dt.28-05-2018 8

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 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
Patna High Court CR. APP (SJ) No.79 of 2016 dt.28-05-2018 9

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.
Patna High Court CR. APP (SJ) No.79 of 2016 dt.28-05-2018 10

State of West Bengal and Another AIR 1965 SC 1887 with

reference to the facts of those cases and emphasized that wide

discretion available with the Appellate Court in ordering retrial.

8. Consequent thereupon, the judgment impugned is set

aside. Appeal is allowed. Matter is remitted back to the learned lower

Court to proceed afresh from the stage of hearing and will decide the

trial within two months from the date of receipt of the L.C. Record

giving opportunity to respective parties. Appellants Ramakant Ram

and Ramchandra Ram are under custody, so their appearance be

accordingly, procured. Appellant Shyamlal Ram and Urmila Devi are

on bail and so, their bail bonds are hereby cancelled directing them to

surrender before the learned lower Court within fortnight and in case,

a prayer for bail is made on their behalf, the learned lower Court will

consider the same in accordance with law.

(Aditya Kumar Trivedi, J)
Vikash/-

AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 29.05.2018
Transmission 29.05.2018
Date

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