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Retrial – the trial court acquitted the case after full trial on benefit of doubt without considering the medical evidence, and due to non speaking of evidence clearly , due to hostile witnesses and due to improvements- Appellant court set aside the acquittal and remanded the case for fresh trail on petition – High court in revision set aside the retrial order and also set aside the main order of appeal which found prima faice case, with out considering and assessing the medical evidence – Apex court on petition for retrial held that no retrial can be order and confirmed the view of high court – Apex court on SLP against revision held that High court committed wrong in allowing the revision with out considering material as to why the lower appellant court set aside the acquittal order – Apex court remanded the case to high court for fresh disposal on this point = MARY PAPPA JEBAMANI ..Appellant Versus GANESAN & ORS. ..Respondents = published in http://judis.nic.in/supremecourt/imgst.aspx?filename=41055

Retrial –  the trial court acquitted the case after full trial on benefit of doubt   without

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

considering the medical evidence, and due to non speaking of evidence clearly , due to hostile witnesses and due to improvements- Appellant court set aside the acquittal and remanded the case for fresh trail on petition – High court in revision set aside the retrial order and also set aside the main order of appeal which found prima faice case, with out considering and assessing the medical evidence – Apex court on petition for retrial held that no retrial can be order and confirmed the view of high court – Apex court on SLP against revision  held that High court committed wrong in allowing the revision with out considering material as to why the lower appellant court set aside the acquittal order  – Apex court remanded the case to high court for fresh disposal on this point =

 

 

 

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.

 

 

 

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, 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.

 

Satyajit  Banerjee  &

 

Ors. Vs. State of W.B. & Ors. , (2005) 1 SCC 115,  wherein  this  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.                 

 

 

 

     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  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 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,  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.                                       

 

 

 

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 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 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 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, 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 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
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 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 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.
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 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 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, 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
(Gyan Sudha Misra)

 

New Delhi;
December 09, 2013
———————–
12

 

 

 

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