JUDGMENT : G. Ilangovan, J. Prayer: Criminal Appeal filed under section 374 of the Criminal Procedure Code against the judgment of conviction passed by the learned Mahila Court (Mahila Fast Track Court) Virudhunagar District at Srivilliputhur, in S.C No.34 of 2011, dated 26.09.2019. 1. This appeal has been filed to set aside the judgment of conviction and sentence passed by the Mahila Court (Mahila Fast Track Court) Virudhunagar District at Srivilliputhur, in S.C No.34 of 2011, dated 26.09.2019. 2. The Appellant is arrayed as accused in S.C No.34 of 2011 on the file of the Mahila Court (Mahila Fast Track Court) Virudhunagar District at Srivilliputhur, dated 26.09.2019. He has been convicted for the offence punishable u/s. 302 IPC and sentenced as follows: Accused Offence Sentence A (i) 302 IPC Life Imprisonment and fine of Rs.5000/- indefault to undergo 1 year Simple Imprisonment 3. Assailing the conviction and sentence, he has come up with this appeal. 4. The case of the prosecution is that the deceased was married to the appellant. They begot two male children and one female child. The appellant was in the habit of suspecting the deceased that she is speaking with male person. On the previous day of the occurrence, i.e., on 06.06.2010, the appellant assaulted the deceased when she was talking to her relative. On getting information about this incident, the parents of the deceased, went to the house of the appellant and on 07.06.2010, at about 10.00 a.m, the appellant quarrelled with the deceased and assaulted her with aruval and caused death. 5. After the appearance of the accused before the committal Court and completing the formalities, the committal Court namely, the Judicial Magistrate No. I, Srivilliputhur, committed the case to the Principal District and Sessions Judge, Srivilliputhur. After appearance before the Principal District and Sessions Judge, the case was transferred to the Trial Court namely, Mahila Court (Mahila Fast Track Court, Virudhunagar at Srivilliputhur. 6. Charge against the accused:- Murder – punishable u/s 302 of IPC. 7. The prosecution in order to prove the charges framed against the accused, examined as many as 16 witnesses and marked 12 documents as well as material objects M.O.1 to M.O.5. No witnesses and documents were produced by the accused. 8. At the conclusion of trial, the Trial Court came to the conclusion that the charge against the accused are proved beyond all reasonable doubts. No witnesses and documents were produced by the accused. 8. At the conclusion of trial, the Trial Court came to the conclusion that the charge against the accused are proved beyond all reasonable doubts. Accordingly, convicted and sentenced him to undergo life imprisonment under Section 302 IPC and to pay a fine of Rs.5000/-, in default to undergo 1 year Simple Imprisonment. Challenging the conviction and sentence, the appellant is before this Court. 9. Story of the prosecution as narrated through the evidence: P.W.2 and P.W.3 are the parents of the deceased. The deceased was married to the accused, some 20 years prior to the date of occurrence as a second marriage. Through the said marriage, they begot three children. The accused was in the habit of quarrelling with the deceased, whenever she was talking with her male relatives. On 06.06.2010, when the deceased was talking with her relative, the accused assaulted the deceased. On information, at the early morning on 07.06.2010, the parents of the deceased namely, P.W.2 & P.W.3 went to the deceased's house. But, the deceased and the accused were not available. On enquiry with the neighbours, they were informed that both went to forest area for fire woods. 10. They went in search of them and when they were nearing the place of occurrence, they found the accused quarrelling with the deceased and assaulted her with aruval, which was warded off by the deceased by her left hand. Then, the accused assaulted on her neck. The deceased fell down. P.W.2 and P.W.3 afraid of the accused ran away from the place of occurrence and informed the villagers. They informed P.W.1, who is the brother of the deceased. He immediately, went to the village and rushed to the place of occurrence and found that the deceased was lying dead at about 11.30 a.m. P.W.1 lodged a complaint (Ex.P.1) with Koomapatti Police Station. P.W.16 was working as Sub Inspector at the relevant point of time in Koomapatti Police Station. He received the complaint from P.W.1 at about 11.30 a.m on 07.06.2017 and registered the case in Crime No.95 of 2010 and handed over the file to the Inspector of Police and sent original to the learned Judicial Magistrate No.I, Srivilliputhur. P.W.16 was working as Sub Inspector at the relevant point of time in Koomapatti Police Station. He received the complaint from P.W.1 at about 11.30 a.m on 07.06.2017 and registered the case in Crime No.95 of 2010 and handed over the file to the Inspector of Police and sent original to the learned Judicial Magistrate No.I, Srivilliputhur. The investigation was undertaken by P.W.14, Mr.Narayanan, who was the Inspector of Police at the relevant point of time and on 07.06.2010, he has taken up the investigation and recorded the statements of the witnesses and visited the place of occurrence and prepared Observation Mahazar and Rough Sketch and also recovered blood stained soil and other things from the place of occurrence. Thereafter, conducted inquest upon the body of the deceased and prepared inquest report (Ex.P.12) and sent the body for the postmortem. On 07.06.2010, the accused was produced by VAO before him, after making arrest, he came forward to give a confession statement, which was recorded in the presence of the witnesses and in pursuance of his disclosure statement, he recovered the weapon MO.1 in the presence of the witnesses. So, after completion of the investigation, he filed a final report before the committal Court. 11. P.W. 4, is the eye witness to the quarrel on 06.06.2010. She has spoken about the quarrel between the deceased and the accused. P.W. 5 and P.W.6, the other sisters, also corroborated the other witnesses over the quarrel. P.W.7 is the cousin brother of the accused. He has also stated about the frequent quarrel between the accused and the deceased. Apart from that he has also stated that on the morning of the day of occurrence, he saw the deceased with the accused going in the way leading to forest and on an enquiry, they informed about this. 12. P.W. 11, was the Assistant to the Village Administration Officer, Kansapuram, the accused alleged to have given confession, in pursuance of which, MO.1 was recovered. He was a witness to the confession and recovery. 13. 12. P.W. 11, was the Assistant to the Village Administration Officer, Kansapuram, the accused alleged to have given confession, in pursuance of which, MO.1 was recovered. He was a witness to the confession and recovery. 13. P.W. 12 is the Doctor, conducted postmortem upon the body of the deceased and on his examination, he found that a cut injury measuring 15 x 10 x 6 cm on the right neck portion wherein, the blood vessels and nerves found cut and another injury measuring 10 x 2 x 1 cm on the upper portion of right ear and cut injury measuring 2 x 1 x 1.5 cm on the left thumb. According to him, due to haemorrhage, death would have occurred. 14. After the completion of prosecution evidence, the accused was put on questioning under Section 313 of the Criminal Procedure Code, he denied the facts deposed by the witnesses. He did not examine any witnesses on his side and mark no documents. After analysing the evidence, the Trial Court convicted and sentenced the appellant as noted above. Challenging the conviction and sentence, the appellant is before this Court. 15. During argument, a fervent attempt was made on the side of the appellant by his learned counsel that it is a clear case of laxity, which was exhibited by the learned advocate, who appeared for the appellant, in trial proceedings. According to him, he did not participate in the trial proceedings properly and case diary shows that in most of time, when the witnesses were to be cross examined, he was not available in the Court and had not cross examined the witnesses properly. 16. According to him, when the life and liberty of a person is involved, care and caution ought to have been taken not only by the defence counsel, but, also by the Court. 16. According to him, when the life and liberty of a person is involved, care and caution ought to have been taken not only by the defence counsel, but, also by the Court. When this argument was advanced by the learned counsel for the appellant, we were of the opinion that when the defence counsel did not choose to cross examine any one of the witnesses or fail to cross examine the witnesses or did not take part in the proceedings properly, the little thing that can be done by the Trial Court is only to see that the accused is properly represented and the Trial Court cannot insist upon the defence counsel to put a particular question in a particular manner and to take a particular defence. This is within the realm of the accused and his counsel. The Court cannot either advise, interfere or act in aid of defence counsel. So, we were not impressed the way, in which, the arguments were advanced by the learned counsel for the appellant. 17. Here, it is not a case of non-participation or non-appearance of defence counsel. The appellant has chosen to appoint defence counsel on his own choice. So, it is for him to take proper care and caution in seeing that his counsel was present in the Court and took all necessary steps to defend him. 18. However, perusal of record and evidence shows that the prosecution witnesses were not cross examined mostly on the date of chief examination. They were let out without cross and after a lapse of two years, the prosecution witnesses were recalled and cross examined. Even at that time, some of the witnesses were not recalled and cross examined. So, the conduct of the defence counsel before the Trial Court is not approved by this Court. 19. According to the learned counsel for the appellant, because of the laxity committed by the defence counsel life of a person should not be taken away. According to him, it is a fit case for remanding. 20. But, it is settled law that remand cannot be ordered as a matter of course. A strong case must be made warranting remand. So, the question which arises for consideration is whether this case fit into any one of the categories that have been formulated by the Hon'ble Supreme Court in a number of decisions. 21. Section 386 of Cr. But, it is settled law that remand cannot be ordered as a matter of course. A strong case must be made warranting remand. So, the question which arises for consideration is whether this case fit into any one of the categories that have been formulated by the Hon'ble Supreme Court in a number of decisions. 21. Section 386 of Cr. P.C reads as under: “After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appear, and in the case of an appeal under Section 377 of 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 be re-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, so as to enhance or reduce the same; (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit http://www.judis.nic.in 12 or discharge the accused or order him to be re-tried by a court competent to try the offence, 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, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper; PROVIDED that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: PROVIDED FURTHER that the appellate court shall not inflict greater punishment for the offence which in its opinion the accused has committed than might have been inflicted for that offence by the court passing the order or sentence under appeal” 22. (i) After extracting this provision, the Hon'ble Supreme Court in judgment reported in Ajay Kumar Ghoshal ETC Vs, State of Bihar and Another in Crl.A.Nos.119 to 122 of 2017 dated 31.01.2017 has formulated the following principles: “Though the word retrial is used under Section 386 (b) (I) Cr.P.C., the powers conferred by this clause is to be exercised only in exceptional cases, where the appellate court is satisfied that the omission or irregularity has occasioned in failure of justice. The circumstances that should exist for warranting a retrial must be such that where the trial was undertaken by the Court having no jurisdiction, or trial was vitiated by serious illegality or irregularity on account of the misconception of nature of proceedings. An order for retrial may be passed in cases where the original trial has not been satisfactory for some particular reasons such as wrong admission or wrong rejection of evidences or the Court refused to hear certain witnesses who were supposed to be heard.” “The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under Section 386 of the Code. That is clear from the bare language of Section 386 (b). Though such power exists, it should not be exercised in a routine manner. A de novo trial or retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor fro retrial must always be demand of justice. Obviously, the exercise of power of retrial under Section 386 (b) of the Code, will depend on the facts and circumstances of each case for which no strait jacket formula can be formulated but the appeal court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked.” 23. So, question arises for consideration is whether the lapse, pointed out by the learned counsel for the appellant has resulted in miscarriage of justice. So, question arises for consideration is whether the lapse, pointed out by the learned counsel for the appellant has resulted in miscarriage of justice. It is also useful to refer in this context, the judgment of the Allahabad High Court in Jail Appeal No.242 of 2013, Rakesh Vs State of U.P, wherein conduct of the defence counsel has been taken into account to conclude that the active participation of the defence counsel is as important as the participation of the prosecutor and if any real laxity exhibited by the defence counsel, then the constitutional guarantee under Articles 21 and 22 available to the accused can be construed to be defeated. 24. Here, as mentioned earlier, the learned counsel for the appellant vehemently contended that the defence counsel failed to cross examine the witnesses properly. But, that ground was not available to the appellant. Retrial cannot be ordered on the ground that the defence counsel has not exhibited his utmost professional high quality of the caliber required of from him. But perusal of the records shows that in most of the time, the defence counsel was not available in the Court, When examination of the witnesses were undertaken. Even though, P.W.2 and P.W.3 were shown as eye witnesses, apart from that relying upon the evidence of the eye witnesses, the Trial Court has also taken into account the last seen theory. For that purpose, the prosecution, has examined P.W. 7. But, she was not cross examined by the defence. So, P.W.7's evidence remains unchallenged. If the evidence of P.W.2 & P.W.3 become unbelievable for any reason that maybe assigned considering their conduct in the relevant time, then, the evidence of P.W.7, must be taken into account for considering the appeal. It might not be appropriate or proper for this Court to rely upon the evidence of P.W.7, which remains unchallenged by way of cross examination. The purpose of cross examination of a witness has been succinctly explained by the Constitution Bench of this Court in Kartal Singh Vs State of Punjab (1994) 3 SCC 569 : 1994 SCC (Cri) 899: (SCC p. 686, para 278). “278. Section 137 of the Evidence Act defines what cross-examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. “278. Section 137 of the Evidence Act defines what cross-examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination- in-chief, the objects of which are: (1) to destroy or weaken the evidentiary value of the witness of his adversary; (2) to elicit facts in favour of the cross-examining lawyer's client from the mouth of the witness of the adversary party; (3) to show that the witness is unworthy of belief by impeaching the credit of the said witness; and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character.” The aforesaid view is reiterated in Jayendra Vishnu Thakur V. State of Maharashtra [ (2009) 7 SCC 104 : (2010) 2 SCC (Cri) 500] wherein it is observed: (SCC p. 117, para 24) “24. A right to cross-examine a witness, a part from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination-inchief, cross-examination and reexamination. Section 138 of the Evidence Act confers a right on the adverse party to cross-examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect. But, indisputably such an opportunity is to be granted. A accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. If an exception is to be carved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication. There are statutes like the Extradition Act, 1962, which excludes taking of evidence vis-a-vis opinion.” 25. If we to rely upon the evidence of P.W.7, it will amount to miscarriage of justice. We are of the opinion that this is the fittest case, which requires for retrial. But, at the same time, a judgment of the Hon'ble Supreme Court in Sathyajith Banerjee and Others Vs State of West Bengal and Others reported in 2005 1 SCC 115 , wherein, it has been observed like this. We are of the opinion that this is the fittest case, which requires for retrial. But, at the same time, a judgment of the Hon'ble Supreme Court in Sathyajith Banerjee and Others Vs State of West Bengal and Others reported in 2005 1 SCC 115 , wherein, it has been observed like this. “So far as the position of law is concerned we are very clear that even if a retrial is directed in exercise of revisional powers by the High Court, the evidence already recorded at the initial trial cannot be erased or wiped out from the record of the case. The trial judge has to decide the case on the basis of the evidence already on record and the additional evidence which would be recorded on retrial.” 26. So, the judgment of conviction and sentence imposed by the Trial Court on the appellant, is set aside and the matter is remanded back to the Trial Court. 27. The Trial Court may permit the prosecution as well as the accused to re-call and re-examine any of the witnesses, who have already been examined and also at liberty to examine additional witnesses by filing proper list of witnesses in advance. As observed earlier, the evidence, which were already recorded, will remain on record and further particulars brought on record, by way of further examination of the witnesses, must be taken into account. The Trial Court shall dispose the matter on merits as per law within 5 months from the date of receipt of copy of this order by conducting the trial on day-to-day basis, without being influenced by any of the observations of this Court. It is also made clear that the observations made here are only for the limited purpose of disposing this appeal. Since the accused is in custody, he shall be produced before the Trial Court namely, Mahila Court (Mahila Fast Track Court) Virudhunagar District at Srivilliputhur for further remand. Consequently, connected miscellaneous petition is closed.