SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Somnath Majhi & Anr vs State Of West Bengal on 28 January, 2020

IN THE HIGH COURT AT CALCUTTA

(Criminal Appellate Jurisdiction)

Present: The Hon’ble Justice Shivakant Prasad

CRA 13 of 2018

Somnath Majhi Anr.
-Versus-
State of West Bengal
For the Appellants : Mr. Arindam Jana
Mr. Soumajit Chatterjee
For the State : Mr. Sudip Ghosh
Mrs. Debjani Sahu
Heard on : 23.12.2019
Judgment on : 28.01.2020
Shivakant Prasad, J.

The appellants have preferred the instant appeal on being aggrieved by and

dissatisfied with the impugned judgment of conviction and sentence dated

18.11.2017 passed by learned Additional District Sessions Judge, Fast Track,

1st Court, Purulia, in connection with Sessions Trial No. 02(10) of 2015for the

charges under Sections 351/34 and 354/34 IPC against each of the appellants.

The genesis of the instant appeal relates to an FIR lodged with Para Police

Station, by one Bisaka Mandi on the basis of which Para Police Station Case No.

52 of 2015 dated 18.05.2015 was registered for investigation into offences

punishable under Sections 450/376D of the Indian Penal Code against the

appellants and two others and upon completion of the investigation, charge-sheet

No. 71/2015 dated 03.07.2015 under Sections 450/376D of the Indian Penal

Code was submitted against the appellants and two others.

To briefly advert to the facts of the prosecution case as made out in the

charge-sheet is that the prosecutrix was sleeping after dinner in her bed room on

17.05.2015 when suddenly at about 9:00/10:00 p.m. at night, four accused

persons entered into the dwelling house of the father of prosecutrix and tied her

face with a piece of cloth (‘gamcha’) and forcibly took her to a field behind the

house and tossed her on the ground and forcibly committed rape one by one. The

case was committed to the Court of the learned Sessions Judge, Purulia who

made over the case to the learned Additional District Sessions Judge, Fast

Track 1st Court, Purulia for trial and disposal.

The trial was initiated with the framing of charges under Sections

450/376D of the Indian Penal Code against the appellants and two others to

which they pleaded not guilty and claimed to be tried which was numbered as

Sessions Trial No. 02(10) of 2015.

The prosecution examined as many as 19 witnesses to substantiate the

charges levelled against the accused persons and on closure of prosecution

evidence the appellants were examined under Section 313 CrPC to which they

declined to adduce any defence witness. The defence is one of denial of charges

which emerged from the trend of cross-examination of the prosecution witnesses.

On consideration of the material evidence, the trial Court held the accused

persons-appellants guilty of the charges under Section 351/34 and 354/34 IPC

and sentenced each of them to suffer Rigorous Imprisonment for one year and to

pay fine of Rs.1000/- (Rupees one thousand) in default to suffer further Rigorous

Imprisonment for three months for offence punishable under Sections 451/34 of
the Indian Penal Code and further sentenced them to suffer Rigorous

Imprisonment for three years and six months and to pay fine of Rs.1000/-

(Rupees one thousand) in default to suffer further Rigorous Imprisonment for

three months for commission of offence under Sections 354/34 of the Indian

Penal Code with direction that all the sentences awarded to the appellants were

to run concurrently and that pre-trial detention undergone by them be set off

from the substantive period of sentence under Section 428 of CrPC.

The instant appeal has been preferred by the appellants, inter alia, on the

grounds that the entire prosecution story is based on extremely weak evidence.

Mr. Arindam Jana learned counsel appearing for the appellants submitted

that the prosecutrix PW 1 has contradicted her own version in her examination-

in-chief and cross-examination as she had stated in examination-in-chief that

she was dragged out of her bedroom by the appellants to a ground on the

backside of the house and raped her turn by turn whereas on being cross-

examined, she came up with an entirely different version stating that while she

was sleeping in her bedroom, some persons started manhandling her (tanatani).

It is submitted that there was no light in the said room and as such she could

not identify the persons. Further, the whole story of taking the PW 1 outside the

bedroom and raping her is conspicuously missing in the cross-examination of the

PW 1. He further argued that the PW 2 and PW 3 being mother and father of the

prosecutrix were also present in their house at the alleged time of the incident

and both admitted in their deposition that they woke up upon hearing the

screams of the victim girl and on being asked she stated that the accused
persons were trying to catch hold and outrage her modesty revealing an

egregious lacuna in the chain of incident creating doubts in the prosecution case

involving the appellants in the crime.

It is submitted that the learned trial Court has failed to appraise the

evidence in convicting the appellants for the charge under Sections 451/34 and

354/34 of the Indian Penal Codeon the sole version of the prosecutrix PW 1 as no

independent witness has been examined to vindicate the prosecution case of rape

on the victim, thus argued that a cloud of doubts hovers on to the veracity of the

statement of the PW 1 as PW 2 mother of the prosecutrix was declared hostile by

the prosecution and could not testify the prosecution case.

It is also submitted that PW 17, the doctor who examined the prosecutrix

deposed that the only mark of injuries found on the body of the victim girl is of

such nature which could be caused by one’s own nail voluntary or accidental

self-inflicted injury as per the medico-legal report (Exhibit 12/1), thereby casting

doubt on the prosecution case but the learned trial Court committed a colossal

error by not accrediting proper linkage to the chain of events and omitted to dwell

on the facet of allegation as to whether at all the appellants entered into the bed

room of the victim girl or not and deemed the appellants to be present at the

alleged place of occurrence and arrived at a fallacious sequitur of conviction.

It is also submitted that identity of the appellants is also in doubt as the

PW 1 in her cross-examination deposed that she was sleeping at the time of

alleged incident the room was dark and she could not identify the persons who
manhandled her. Further, PW3, the father of PW 1 victim girl stated in his

deposition that PW 1 had stated to him that she failed to identify the assailants.

It is argued that the statement made before the I.O. under Section 161

CrPC is used for contradiction in terms of Section 145 of Evidence Act and

referred to a decision in case of V.K. Mishra and Another vs. State of

Uttarakhand and Anr. with Rahul Mishra vs. State of Uttarakhand and

Anr. reported in AIR (2015) 9 Supreme Court Cases 588 wherein it has been

observed that the court cannot suo moto make use of statements made to police

not proved and ask questions with reference to them which are inconsistent with

the testimony of the witness in the court. The statement before the investigating

officer can be used for contradiction but only after strict compliance with Section

145 of the Evidence Act. That is say, by drawing attention to the parts intended

for contradiction.

It is argued that conduct of the prosecutrix making contradictory

statement does not prove the prosecution case and referred to the case of Raja

and others vs. State of Karnataka [AIR (2016) 10 Supreme Court Cases

506]. The facts situation of the cited decision in my opinion is quite

distinguishable from the instant case as in the cited case it has been observed

that the prosecutrix was working as a maid in a house who allegedly, at about

7.30 p.m., while she was coming back from work in an auto-rickshaw with two

persons in it including the driver, stopped by her side and she was pulled inside

and after travelling some distance, two other persons also got into the auto-
rickshaw. The miscreants then blind folded her and took her to an auto garage

where there was no light and three of the four persons ravished her. Trial court

acquitted all appellant-accused, however, High Court reversed it, convicting them

under Sections 366/376(2)(g)/392 read with Section 34 IPC. It has been held since

prosecutrix contradict herself qua place of alleged kidnapping and she did not

scream or cry for help no allegation that abductors put her under fear on the point

of any weapon threatening physical injury thereby, her version in the complaint

regarding the offending act and number of persons involved is inconsistent with

her testimony on oath in trial and her conduct during alleged ordeal also unlike a

victim of forcible rape and betrayed somewhat submissive and consensual

disposition and in view of the fact that her post incident conduct and movements

was also unusual became instead of hurrying back home in a distressed,

humiliated and devastated state, she stayed back in and around the place of

occurrence.The Hon’ble Apex Court took notice of the decision in Raju vs. State

of M.P. (2008) 15 SCC 133 at page 34 observing that while reiterating that the

evidence of the prosecutrix in cases of rape, molestation and other physical

outrages is to be construed to be that of an injured witness so much so that no

corroboration is necessary, ruled that an accused must also be protected against

the possibility of false implication. It was underlined that the testimony of the

victim in such cases, though commands great weight but the same cannot

necessarily be universally and mechanically accepted to be free in all

circumstances from embellishment and exaggeration. It was ruled that the

presumption of absence of consent of the victim, where sexual intercourse by the
accused is proved as contemplated in Section 114A of the Evidence Act, was

extremely restricted in its application compared to the sweep and ambit of the

presumption under Sections 113A and 113B of the Indian Evidence Act. It was

exposited that insofar as the allegation of rape is concerned, the evidence of the

prosecutrix must be examined as that of an injured witness whose presence at the

spot is probable but it can never be presumed that her statement should always

without exception, be taken as gospel truth.The essence of this verdict which has

stood the test of time proclaims that though generally the testimony of a victim of

rape or non-consensual physical assault ought to be accepted as true and

unblemished, it would still be subject to judicial scrutiny lest a casual, routine and

automatic acceptance thereof results in unwarranted conviction of the person

charged.

There is no quarrel as to the proposition laid by the Hon’ble Court on the

given facts of the case but the ratio of cited decision is not well nigh within the

facts and circumstances of the instant case as PW 1 the victim herself lodged an

FIR with the Officer-in-Charge Para Police Station on 18.5.2015 alleging that on

17.5.2015 while she was sleeping after dinner at night, four persons of her village

entered into the house and took her to a lonely field at back side of the house

after tying a ‘gamchha’ in the mouth and getting her down on the earth raped her

one after another against her will. The FIR is fully corroborated by her being the

makerin examination-in-chief wherein she has point blank disclosed the name of

the appellants having committed rape on her one after another. The incident

disclosed in the complaint is dated 17.5.2015 at night and the case was
registered at 07.15 hours without loss of time. The statement of the prosecutrix

was recorded by the Judicial Magistrate, 2nd Court, Raghunathpur on 19.5.2015

and the victim in unequivocal term has disclosed the ordeal of rape committed on

her by the appellants. Her ocular testimony and statement made before the

Judicial Magistrate are in general agreement. There is no cross-evidence to

suggest as to how her evidence in examination-in-chief and the statement under

Section 164 CrPC recorded at the earliest point of time should be viewed through

askance. The evidence of the parents indubitably suggestive of the incident

having occurred in their house when they have heard screaming and cry of their

daughter. It is true, at night, the parents might not have identified the appellants

but without identifying the appellants, it was not possible for the victim lady to

name them as the rapists in the FIR since the evidence of the prosecutrix has to

be treated as an injured witness whose evidence at the place of occurrence

cannot be doubted as an eye witness. I find no suggestion put to the prosecutrix

for having falsely implicated the appellants. For she would not implicate any

person to earn in her life social stigma. In her cross-examination she stated that

she was married to one Parimal Hansda of village Rampur before three years ago

i.e. in the year 2012 and she started residing with parents after his demise. In

the evening of the day of incident she was feeling ill and at 6:00 p.m. of that

evening her parents took her to Raghunathpur Sub-Divisional Hospital but

returned from the midway without attending to the hospital. It appears that the

defensive suggestions have been put to the PW 1 to argue that after having

returned from the hospital, when she was sleeping some persons started
“tanatani” to her and when she started shouting para people assembled and

parents woke up but such defensive suggestion is not suggested to her parents to

testify the fact otherwise as to how local people came hearing cry and the parents

woke up. There are contradictions but they do not go to the root of the

prosecution case inasmuch as Dr. Madhumoy Ari PW 17 who examined the

victim lady on 18.5.2015 clinically. Though he found no external or internal

injury and there was a natural bleeding in the vagina but he found two marks

over the right breast and left leg simple in nature and the victim girl stated the

history of incident which has been noted in the injury report (Exhibit 12)

indicating the name of the local boys being the appellants who had committed

sexual assault on her on 17.5.2015 at 9.00 p.m. There may not be external or

internal injury but fact remains that there were soft scratch and two marks over

right breast and one on left leg which finds corroboration with the version of the

victim lady to suggest that victim lady was subjected to sexual assault. The

report Exhibit 13/1 reflects that bra, panty, night grown, petty coat, challis were

blood-stained and also mud-stained and dirty. This also corroborates the

incident of rape on the victim lady after taking her to a place where the

appellants tossed her on the ground and committed rape on her. Though, the

report reveals that blood-stain on the genital area might be due to menstruation,

yet the FSL report (Exhibit 23) depicts that half pant, T-shirt, black full sleeve

genji being the wearing apparels of the appellants which were seized for FSL

examination were bearing some dirty stain. The wearing apparels of the victim

lady and of the appellants which were seized under the seizure list were sent to
the Forensic Test Laboratory and the semen samples of the appellants were

taken for the testing by the Forensic Test Laboratory and no semen (no

spermatozoon) or any other biologically significant foreign body could be detected

on the contents of the items marked A (nighty, orna, bra), B (half pant, T-shirt), C

(half pant, ganji), D (full pant, ganji) and E (half pant and genji). Bloodstained

samples collected from each of these items were sent on 24.3.2017 to the

Serologist, Government of India, 3, Kyd. Street, Kolkata- 700016 for

determination of origin and group of blood. The Serologist report (Exhibit 23/3)

reflects that item no. 20 being the panty cutting was stained with ‘O’ group blood

but blood group on other items stained with blood could not be determined as

the blood stain was found disintegrated. Overall the evidence reveals that

wearing apparels of the appellants were stained with mud soil and dirt. Facts and

circumstance of the case clearly goes to show a case of rape committed on the

victim lady in as much as she confirmed having deposed in her examination-in-

chief, the true accounts of or deal suffered by her.

PW 2 the mother of the victim lady and PW 4 Kusum Mandi sister of the

victim although, were declared hostile but PW 2 has testified the fact that when

her daughter was sleeping, four persons caught her forcibly to outrage her

modesty and she heard her shouting and PW 4 stated on oath that victim used to

reside in her parent’s house after death of her husband. PW 5 Uttam Rajowar,

PW 7 Ujjwal Rajowar, PW 8 Sisir Rajowar are the witnesses to the seizure list in

respect of seizure of wearing apparels of the appellants. PW 6 Tarapada Majhi

being the constable of Para Police Station who took part in search and seizure
and a witness to the seizure list (Exhibit 6). PW 9 Biswanath Deshwali Majhi had

taken victim to the hospital and told his brother Bhola Majhi to arrange a vehicle.

PW 10 ASI Shyamal Chandra Mondal, is a constable and a witness to the seizure

list dated 21.5.2016 (Exhibit 9).

PW 11 Krishna Pada Mandi uncle of the victim who has no knowledge

about any incident as he was employed outside the district but stated that victim

used to reside in her father’s house after death of her husband. PW 12, PW 13

are the co-villagers and PW 15 is brother in law of victim but they have no

knowledge about the incident. PW 14 Ainul Ansari the driver had taken the

victim to the hospital in the evening as the victim had taken poison according to

him. So his evidence is of no help to the prosecution case as he has no

knowledge about the incident.

PW 16 Dr. Susanta Patraon examination of the appellants was of the

opinion that the appellants were capable of sexual intercourse. PW 18 Dr.

Chiranjib Mukherjee had collected semen of four accused persons/appellants

and forwarded to O/C. Para P.S. under forwarding letter Exhibit 14. SI

Lakshmikant Pati I.O. after investigation submitted charge-sheet under Sections

450/376 IPC against the appellants.

After hearing both the parties, this Court on appraisal of evidence and

having perused the judgment impugned directed issuance of a Rule calling upon

the appellants to show-cause as to why they shall not be heard on merit on the

charge under Section 376D in respect of which they were held not guilty and

acquitted thereof by the learned trial Judge.

In response to the Rule Mr. Jana has argued that the instant appeal has

been preferred by the appellants against the judgment and order of conviction

dated 18.11.2017 passed by the Learned Additional District and Sessions Judge,

Fast Track-I, Purulia but no cross appeal was presented either from the side of

the State or by the de-facto complainant/victim as such there is no challenge

against the order of acquittal in respect of the charge under Section 376D IPC.

So, the appeal Court cannot exercise its power to reverse an order of acquittal

passed in favour of a party in respect of an offence charged and placed reliance

on the decisions in cases of State of Andhra Pradesh vs. Thadi

Narayana[(1962) 2 SCR 904: AIR 1962 SC 240: (1962) 1 Cri LJ 20;

Appasaheb and another vs. State of Maharashtra (2007) 9 Supreme Court

Cases 721 7; Jayanta Das vs. State of West Bengal (2007) 2 C Cr LR (Cal)

323 and Issac alias Kishore Vs. Ronald Cheriyan and others (2018) 2

Supreme Court Cases 278], to submit that provision of Section 386 CrPC

enshrined powers of the Appellate Court in appeals. The High Court has

exclusive power to deal with an appeal against an order of acquittal as per Clause

(a) of the Section 386 whereas Clause (b) of the said Section embraces all

courts.It is pointed out that provision of Section 386(b)(i) of Code of Criminal

Procedure, 1973 is pari materia to Section 423(1)(b)(i) of the old Code of Criminal

Procedure, 1898.

In State of Andhra Pradesh vs. Thadi Narayana (supra), the appellant

who faced trial for charges under Section 302 IPC and 392 IPC was acquitted of

the said charges but convicted of an offence under Section 411 IPC by the
Sessions Court and on appeal against conviction and sentence, High Court set

aside the conviction and sentence under section 411 IPC and ordered the

accused for retrial on the charges of murder and robbery where the State had not

appeal against the order of acquittal on the said charges of murder and robbery.

In that set of facts, it was held by the Hon’ble Supreme Court that Section

423(1)(b)(i) of Code of Criminal Procedure, 1898 is confined to cases of appeals

preferred against orders of conviction and sentence, the powers conferred by this

clause cannot be exercised for the purpose of reversing an order of acquittal

passed in favour of a party in respect of an offence charged, in dealing with an

appeal preferred by him against the order of conviction in respect of another

offence charged and found proved. It would be apt to reproduce the observed in

paragraph 7 and 8 for better understanding thus:

“7. Section 423(1) (a) expressly deals with an appeal from an order of
acquittal and it empowers the Appellate Court to reverse the order of
acquittal and direct that further inquiry be made or that the accused may be
tried or committed for trial, as the case may be, or it may find him guilty and
pass sentence on him according to law. In appreciating the powers conferred
on the Appellate Court in dealing with an appeal against, an order of
acquittal it is necessary to bear in mind that the only forum where an appeal
can be preferred against an original or an appellate order of ‘acquittal is the
High Court, that is to say the powers conferred on the Appellate Court by s.
423(1)(a) can be exercised only by the High Court and not by any other
Appellate Court. Under s. 408 the Court of Sessions is an Appellate Court to
which appeals from orders of conviction passed by an Assistant Sessions
Judge, a District Magistrate or any other Magistrate lie, and so the Court of
Sessions is An Appellate- Court, but no appeal against an order of acquittal
passed by any of the aforesaid authorities can lie to, the Court of Sessions.
All appeals against acquittal whether passed by the trial court or the
Appellate Court lie only to the High Court, and so the powers prescribed
by s. 423(1) (a) can be exercised only by the High Court. As we will presently
point out this fact has some bearing on the construction of the material
words used in s. 423(1) (b)(2).

8. Section 423(1) (b)(1) in terms deals with an appeal from a conviction, and
it empowers the Appellate Court to reverse the findings and sentence and
acquit or discharge the accused or order a retrial by a Court of competent
jurisdiction subordinate to such Appellate Court or committed for trial. In
the context it is obvious that the finding must mean the finding of guilt. The
words “the finding and sentence” are co-related. They indicate that the
finding in question is the cause and the sentence is the consequence; and so
what the Appellate Court is empowered to reverse is the finding of guilt and
consequently the order as to sentence. There is no difficulty in holding that s.
423(1) (b) (1) postulates the presence of an order, of sentence against the
accused and it is in that context that it empowers the Appellate Court to
reverse, the finding of guilt and sentence and then to pass any one of the
appropriate orders: therein specified. In our opinion s. 423 (1) (b) (1) is,
therefore, clearly confined to cases of appeals preferred against orders of
conviction and sentence, and the powers exercisable under it are therefore
conditioned by the said consideration. It is impossible to accede to the
argument that the powers conferred by this clause can be exercised for the
purpose of reversing an order of acquittal passed in favour of a party in
respect of an offence charged in dealing with an appeal preferred-by him
against the order of conviction in respect of another offence charged and
found proved. There can thus. be no doubt that the order passed by Naidu, J.
cannot be justified under this clause.”

In case of Appasaheb and another (supra) relying on the decision of

State of A.P. Vs. Thadi Narayana (supra) the Hon’ble Supreme Court held

that similar to the earlier Code, Section 386(b)(i) is confined to cases of

appeals against orders of conviction and sentence and cannot be exercised for

reversing an order of acquittal passed in respect of an offence charged, while

dealing with an appeal preferred by him against the order of conviction in

respect of another offence charged and found proved in the facts situation of

the case where the learned Sessions Judge had framed charges

under Sections 498A, 304B read with Section 34 IPC and Section 306 read

with Section 34 IPC against the appellants who were acquitted of the charges

under Sections 498A and 306 read with Section 34 IPC but convicted
under Section 304B IPC and imposed a sentence of seven years RI thereunder

and thus, the appeal preferred by the appellants was dismissed by the High

Court. Then, the appeal before the Hon’ble Supreme Court was preferred by

the appellants challenging their conviction under section 304B read

with section 34 IPC and the Hon’ble Court set aside the judgment and order

of the High Court as well as of the learned Sessions Judge by acquitting the

appellants of the said charges.

The Division Bench of this Hon’ble Court has also dealt with similar

question in Jayanta Das vs. State of West Bengal reported in (2007) 2 C

Cr LR (Cal) in which case the accused-appellant was convicted by the

Sessions Court under Sections 498A and 306 of the Indian Penal Code and

was sentenced thereunder.

In Issac alias Kishore (supra),the appeal arose before the Hon’ble

Supreme Court out of the judgment passed by Kerala High Court at

Ernakulam allowing Criminal Revision preferred by respondent 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 in

which the trial Court convicted accused no. 2 under Sections 302 and 394

IPC but acquitted the appellant-accused no.1. On being aggrieved by acquittal

of appellant, respondent no.1-eldestson of the deceased filed a criminal

revision challenging the acquittal of the appellant-accused no. 1 and accused
no. 2 also filed a criminal appeal before the High Court challenging his

conviction and sentence wherein the High Court held that the trial Court had

committed irregularity in framing of charge under Section 34 IPC, even

though the trial Court framed an issue on the point of sharing of common

intention of accused no.1 and accused no. 2 in committing robbery and

murder of the deceased with the observation that the finger print expert

ought to have been examined before the trial Court. In an appeal against the

judgement of the High Court ordering retrial the Hon’ble Supreme Court

found no error to interfere with the discretion exercised by the High Court

under Section 386(a)Cr.P.C. directing retrial and observed thus in paragraphs

9, 10, 11 and 12:

“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 bare-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;”

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
AppellateCourt 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), thisCourt 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 thereis 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 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)……”
The same principle was again reiterated in Mahendra Pratap Singh v. Sarju
Singh and Another AIR 1968 SC 707.

Thus, on bare reading of the provision of Section 386 CrPC and bearing in

mind principles of law laid in case of Issac alias Kishore and in K.

Chinnaswamy Ready (supra), I find that though retrial was not interfered with

but the revision and appeal in the above cited case were preferred by the

aggrieved private party.

Having given an anxious consideration to the facts and circumstances of

the case in hand and bearing in mind the principles of law held in State of A.P.

v. Thadi and Appasaheb (supra) this Court, though, finds material evidence to

bring home charge under Section 376D IPC against the appellants, nevertheless,

retrial of the case for the charge under Section 376D IPC cannot be ordered in

this appeal as no appeal against acquittal in respect of charge under Section

376D IPC has been preferred either by the State or the prosecutrix/victim lady.

However, I do not find sufficient grounds to differ from the findings of

learned trial Court in respect of charges under Sections 351/34 and 354/34 IPC

except that the sentence separately passed shall run consecutively i.e. one after

another. Consequently, the judgment of conviction and sentence with the above

modification stands affirmed.

Thus, the Appeal being CRA 13 of 2018 is disposed of.

Let a copy of this judgment together with LCR be sent down to the learned

Trial Court forthwith for necessary note in the Sessions Trial Register and for

doing the needful. A copy of this judgment be also sent to the Jail

Superintendent concerned for his information and doing the needful.

Urgent certified photostat copy of this Judgment, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

(SHIVAKANT PRASAD, J.)

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation