ISSAC @ KISHOR versus RONALD CHERIYAN AND ORS.

Citation: [2018] 1 S.C.R. 217 · Decided: 23-01-2018 · Supreme Court of India · Bench: RANJAN GOGOI · Disposal: Dismissed
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Judgment (excerpt)

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ISSAC @ KISHOR
v.
RONALD CHERIYAN AND ORS.
(Criminal Appeal No. 165 of 2018)
JANUARY 23, 2018
[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
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
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
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
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
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
[2018] 1 S.C.R. 217
217
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SUPREME COURT REPORTS
[2018] 1 S.C.R.
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
[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
[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
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.
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
No.3413 of 2008 preferred by respondent no.1 herein thereby setting
aside the acquittal of the appellant-accused no.1 for the offences
punishable under Section 302 IPC and Section 394 IPC read with Section
34 IPC and further remitting the matter back to the trial Court for retrial.
3. Briefly stated case of the prosecution is that, the deceased-
Brijitha was sixty three years old widow and used to stay 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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his employment.  Thereafter, for helping the deceased in agricultural
work, the appellant-accused no.1 started staying with the deceased in
her house.  On 06.02.2006 in the midnight, sister-in-law of deceased
who was staying at a distance of 50 meters from the house of the
deceased, heard cries from the house of deceased. On hearing the cries
of deceased, sister-in–law of deceased got awaken her son Cheriyan @
Shabin (PW-1).  Then, PW-1 went to the house of deceased and asked
the appellant-accused no.1 to open the door of the kitchen; but the
appellant-accused no.1 told him that he being tied with rope could not
open the door and asked PW-1 to take entry from the front door.  PW-
1, on entering the house from front door, f
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