IMPORTANT POINTS
High Court being First Appellate Court is duty bound to scrutinize evidence and arrive at an independent finding and examine whether lapses in investigation or trial actually affect the prosecution case; or such lapses have actually resulted in failure of justice. If the answers are in the affirmative then only retrial can be ordered.
Even a procedural illegality is not sufficient for directing retrial.

JUDGMENT

R. BANUMATHI, J.

These appeals are directed against the common final order dated 28.08.2015 passed by the High Court of Judicature at Patna in Criminal Appeal (SJ) No.230 of 2015, Criminal Appeal (SJ) No.275 of 2015, Criminal Appeal (SJ) No.232 of 2015 and Criminal Appeal (SJ) No.243 of 2015 setting aside the judgment of the trial court and directing the retrial of Session Trial No.14 of 2008/637 of 2008 against the appellants.

2. Briefly stated, case of the prosecution is that on 15.05.2007, Asim Kumar Chatarjee (PW-5) filed a complaint before the Officer-in-Charge, Tilakmanjhi, stating that his sister Bandhavi @ Bani Ghoshal was married to Raj Kumar son of Ajay Kumar Ghoshal on 03.02.2007 and at the time of her marriage, the complainant gave cash and ornaments as per his capacity and all the usual gifts given in a marriage to the accused-appellants. PW-5 asserted that the husband, father-in-law and mother-in-law (Munmun Ghoshal) kept demanding dowry from his deceased sister and upon his inability to fulfill their demands, they in turn tortured Bandhavi Ghoshal mentally and physically. The complainant stated that on 15.05.2007, he received information from Bhagalpur about the death of his sister deceased Bandhavi @ Bani Ghoshal in her matrimonial home, in suspicious circumstances and he went to Bhagalpur. The complainant stated that he saw the dead body of his sister and noticed that her wrist veins were cut and her body had the marks of hanging, assault and electrocution. On the basis of aforesaid, FIR was registered under Section 304 (B), Section 34 IPC at Kotwali (Tilkamanjhi) P.S. Case No.281 of 2007. After completion of investigation, the charge-sheet was filed against the appellants under Sections 302, 304B, 201, 498A, 120B IPC and Sections 3 and 4 of Dowry Prohibition Act.

3. In order to prove guilt of the accused, the prosecution has examined twelve witnesses and exhibited documents and material objects. Upon consideration of evidence, the trial court vide judgment dated 06.04.2015, held that the prosecution has proved the guilt of the accused beyond reasonable doubt and convicted all the appellants/accused persons, by judgment dated 09.04.2015. For conviction under Section 304B read with Section 120B IPC, the trial court imposed sentence of imprisonment for ten years on each of the appellants. The appellants were convicted under Section 201 IPC and were sentenced to undergo rigorous imprisonment for five years as well as fine of Rs.10,000/-each with default sentence and rigorous imprisonment for two years for the conviction under Section 4 of Dowry Prohibition Act.

4. Being aggrieved by the verdict of conviction and the sentence imposed upon them, the appellants/accused preferred separate appeals before the High Court. Upon consideration of the contentions of the parties, the High Court in paras (29) and (30) of its judgment pointed out certain lapses on the part of Investigating Officer/trial court and held that the trial court failed to take appropriate action on the lapses. After quoting relevant extracts from the judgments in Mina Lalita Baruwa vs. State of Orissa and Ors. (2013) 16 SCC 173 and Nar Singh vs. State of Haryana (2015) 1 SCC 496, the High Court set aside the judgment of the conviction and sentence recorded by the trial court and the matter was remitted back to the trial court to proceed afresh in accordance with law. Being aggrieved, the accused-appellants have preferred these appeals.

5. Learned counsel for the appellants submitted that the High Court being the First Appellate Court should have appreciated the evidence on its own merits; instead it erred in remitting the matter back to the trial court to proceed afresh and the order for de novo trial would cause serious prejudice to the accused-appellants.

6. We have heard the learned counsel for the State as well as counsel for the complainant i.e. brother of the deceased Asim Kumar Chatarjee. Both of them submitted that the evidence avail