IMPORTANT POINT
High Court may direct retrial in exceptional circumstances and even at the instance of a private party.

ORDER

R. BANUMATHI, J.

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 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, found the deceased lying in unconscious state in the front room of the house and the appellant-accused no.1 being tied with rope in the kitchen. The appellant-accused no.1 told PW-1 that five thieves had entered the house and after suffocating the deceased took away all the valuable gold ornaments and cash from the house. PW-1 informed about the incident to respondent no.1-Ronald Cheriyan, eldest son of the deceased, and then they took the deceased to the St. John Hospital, Kattappana where she was declared dead. At about 04.00 a.m., PW-1 went to Kattappana police station and his statement (Ex.P1) was recorded by PW-22-Sub-Inspector of Police, on the basis of which, case in Crime No. 49 of 2006 was registered against five identifiable persons under Section 396 IPC.

4. After registration of FIR, the Inspector of Police, during investigation prepared the spot panchnama (scene mahazar) and also taken the finger prints from the scene of crime. The appellant-accused no.1 was arrested on 07.02.2006 at 06.20 p.m. who gave a disclosure statement; based on which, accused no.2 was located and arrested on the same day at 08.00 p.m. Confession statement of accused no.2 led to recovery of gold ornaments, currency notes and shawl which was used to suffocate the deceased, from the house of accused no.2. Also, the grey hair found on the shawl were preserved for further investigation. The post-mortem report disclosed that death of the deceased was caused due to smothering. After completion of the investigation, charge-sheet was filed against the appellant-accused no.1 under Section 394 IPC and Section 302 IPC read with Section 34 IPC.

5. The trial court convicted accused no.2 under Sections 302 and 394 IPC inter alia on the following grounds:-a) presence of accused no.1 has been confirmed in the house of the deceased due to the fact that finger prints of the accused were found on the objects recovered from the place of crime; b) ornaments of the deceased and the currency notes were recovered from the house of accused no.2; c) recovery of shawl which was used in the commission of offence containing hair of the deceased, from the house of accused no.2; and d) that accused no.2 was in dire need of money to pay back his debts. The trial court has acquitted the appellant-accused no.1 holding that the disclosure st