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2020 DIGILAW 113 (CAL)

Somnath Majhi v. State Of West Bengal

2020-01-28

SHIVAKANT PRASAD

body2020
JUDGMENT 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 6. 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. 7. 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. 8. Mr. Arindam Jana learned counsel appearing for the appellants submitted that the prosecutrix PW 1 has contradicted her own version in her examinationin-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 crossexamined, 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. 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. 9. 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. 10. 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. 11. 11. 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. 12. 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., (2015) 9 SCC 588 AIR 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. 13. 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, (2016) 10 SCC 506 AIR . 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. 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 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. 14. 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. 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. 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. 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-inchief, the true accounts of or deal suffered by her. 15. 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). 16. 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. 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. 17. 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. 18. 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. 19. 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 SCC 721 7 ; Jayanta Das vs. State of West Bengal,2007 2 CalCriLR 323 (Cal) and Issac alias Kishore Vs. Ronald Cheriyan and others, (2018) 2 SCC 278 , to submit that provision of Section 386 CrPC enshrined powers of the Appellate Court in appeals. Ronald Cheriyan and others, (2018) 2 SCC 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. 20. 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. 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. 21. 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. 22. 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. 22. The Division Bench of this Hon ble Court has also dealt with similar question in Jayanta Das vs. State of West Bengal, 2007 2 CalCriLR (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. 23. 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. 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 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, (1962) AIR 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, (1968) AIR SC 707 . 24. 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. 25. 24. 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. 25. 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. 26. 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. 27. Thus, the Appeal being CRA 13 of 2018 is disposed of. 28. 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. 29. Urgent certified photostat copy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.