Justice Dr Dhananjaya Y Chandrachud, Justice Vikram Nath and Justice B. V. Nagarathna of the Supreme Court noted that situations when an Appellate Court can order re-trial. The court while allowing the appeal had set aside the decision of the High Court and remitted the matter to High Court to be decided afresh.As per the prosecution, the prosecutrix and another person went for lighting lamps and were returning home when the car that was driven by the accused was going by and another accused was allegedly sitting next to him. As they came near prosecutrix, the other person who was known to prosecutrix had forcibly made her sit in the car and the windows as well as doors were closed so no one could hear the hues and cries of the prosecutrix.
Sexual assault was committed on her and then she was taken to the place of another accused. She was alleged to have been repeatedly raped by the accused. She became semi-conscious after being given some intoxicant and was dropped off near the village where she somehow reached her home. She told her mother about the whole incident. Her statement was recorded by appellant police personnel based on which an FIR was filed. Prosecutrix committed suicide leaving behind a suicide note where the names of the accused were written. Subsequent to her death, appellant arrested the accused.The Trial Court convicted the accused as per Section 376(2)(g), Section 366, Section 328 and Section 120B, IPC. The appellant was acquitted on the basis that there was no proof against the appellant Nine criminal appeals were filed before the Division Bench, High Court, where the court remitted the matter that rose up from two separate FIRs for trial afresh. The court even ordered the proceedings from two separate FIRs to be tried together under Section 223, Criminal Procedure Code, by one court.
Appeals were filed before the Apex Court, the court opined:
“22. The above extract emphasizes that a retrial would not be ordered unless the Appellate Court is satisfied that:
(i) The court trying the proceeding had no jurisdiction;
(ii) The trial was vitiated by serious illegalities and irregularities or on account of a misconception of the nature of the proceedings as a result of which no real trial was conducted; or
(iii)The prosecutor or an accused was for reasons beyond their control prevented from leading or tendering evidence material to the charge and that in the interest of justice, the Appellate Court considers it appropriate to order a retrial.
Another feature which emerges from the above decision is that an order of retrial wipes out from the record the earlier proceeding and exposes the present accused to another trial. It is for that reason that the court has affirmed the principle that a retrial cannot be ordered merely on the ground that the prosecution did not produce proper evidence and did not know how prove their case.”
LEGALFLAME 