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Patna in the recent case of Neyaz Ansari v. the State of Bihar remitted a case involving the death of the Appellant deceased wife on account of the burn; send back to the trial court. Hon’ble Justice Aditya Kumar Trivedi said that, “a court will set aside a judgment or grant a new trial, any cause on the ground of misdirection or the court, or of the improper admission or rejection of the evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, only if the court is of the opinion that the error complained of or of has resulted in a miscarriage of justice.”
Referring to the judgement of P Ramesh v. State of Madras[1] court said that:-
“The appellate court hearing a criminal appeal from a judgment of conviction has the 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 routinely. A de novo trial or retrial of the Accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice.”
While doing so, the court also remarked that sometimes, the prosecution case was based on conjectures, for the reason that the alleged incident occurred in the exclusivity of the accused and thus the trial court should try to extract the details of the incident from such accused under section 106 of the Indian Evidence Act. Reliance was placed on Ranji Kumar Haldar v. State of Sikkim[2] in which court said that:
“Procedure has also been prescribed identifying the prosecution sharing the burden to prove its case beyond all reasonable doubt but, in certain circumstances, it happens to be mere a guess or expectation because of inability of the prosecution to support its case on account of its inability due to inaccessibility on the other hand, being under exclusive knowledge of the accused as, the circumstances so suggests and, such circumstances, is found duly cared under Section 106 of the Evidence Act which speaks that a person who has got exclusive knowledge is bound to divulge the same.”
[1] AIR 2019 SC 3559
[2] 2019 (3) PLJR 358 (SC)
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