RAPHEL Vs. STATE

JUDGEMENT

(1.) The appellant was the 1st of the two accused at the trial. He was charged with murder, his offence being that he caused the death of the deceased Ouseph, an old man of 62, by kicking him in the stomach in an attempt to free his friend, the 2nd accused, whom Ouseph and some of his relatives had caught and were holding in confinement, on discovering him in the compound of Ouseph's house under suspicious circumstances late in the night. (According to the prosecution the accused had gone there to elope with the deceased's daughter with whom the 1st accused was in love.) The 1st accused admitted having kicked the deceased, and his plea was one of private defence of the body of the 2nd accused. The plea was not accepted by the Trial Court which convicted the 1st accused under S. 323 I. P. C. and sentenced him to suffer rigorous imprisonment for one year, the 2nd accused who was charged with abetment of the murder being altogether acquitted. The 1st accused appealed and his appeal was heard by a Division Bench of this Court in Criminal Appeal 236 of 1957. The case had ] already been taken up suo motu in revision and the revision was heard along with the appeal. The Bench agreed with the Trial Court in rejecting the 1st accused's plea of private defence, but thought that his offence was a graver offence than that of which the Trial Court had convicted him. In that view it set aside the conviction and the sentence recorded against the 1st accused and sent the case back to the Trial Court for fresh disposal. When the case went back to the Trial Court, that court did not hold a fresh trial but, acting on the evidence recorded at the original trial and hearing arguments afresh, proceeded to convict the 1st accused under the second part of S. 304 I. P. C. and to sentence him to undergo rigorous imprisonment for five years. Against that conviction and sentence, the 1st accused has come up with his present appeal.

(2.) There can be no doubt that what this court ordered in Crl. Appeal 236 of 1957 was a retrial. This is indeed what S. 423(1)(b) Criminal Procedure Code contemplates and the power exercisable in revision under S. 439 is this very same power. But there was no retrial, and the conviction of the 1st accused on the evidence recorded at the original trial (which trial had, as it were, been set aside) virtually amounts to a conviction without a trial. It necessarily follows that the conviction and the sentence cannot be upheld and must be set aside.

(3.) The question remains whether I should order a retrial which would be the normal course to follow. I do not however think that, in the special circumstance of this case, it is necessary in the interests of justice to do so.