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2022 Supreme(Bom) 1632
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.G. Mehare, J.
Abdul Rasheed s/o Abdul Gani Qureshi - Petitioner
Versus
Khalil Pasha s/o Shaikh Bashir and ors. – Respondents
Criminal Revision Application No. 5 of 1990
Decided On : 16-12-2022
Advocate Appeared:
For the Petitioner:Mr. Zia-ul-Mustafa & Mr. Taher Ali Quadri, Advocate
For the Respondent:Mr. Anant R. Devakate, Advocate, Mr. Anil M. Gaikwad, Advocate, Mr. S.B. Narwade, APP
The central legal point established in the judgment is the limited power of the High Court to interfere with the order of acquittal under revisional jurisdiction, the significance of eyewitness testimony and oral dying declarations, and the conditions under which such evidence should be evaluated to avoid miscarriage of justice.
Headnote:
Revision - Criminal Procedure Code - Section 401, Indian Penal Code - Section 147, 148, 302 read with 34 - A.I.R. 1981 SC 1415, A.I.R. 1962 SC 1788, (1997) 6 SCC 185, 1979 SC 663, 1988 SC 3380, A.I.R. 2010 SC 1140 - The court discussed the legal issues raised by the counsels for the petitioner and respondents, focusing on the power of the High Court to set aside the order of acquittal under revisional jurisdiction. The court referred to various case laws to establish the limited power of the High Court to interfere with the order of acquittal and the conditions under which such interference is justified.
Fact of the Case:
The deceased, son of the complainant, was allegedly beaten and assaulted by the accused resulting in his death. The prosecution presented eyewitnesses and oral dying declarations as evidence. The learned Additional Sessions Judge acquitted the accused, leading to the complainant filing a revision under Section 401 of the Criminal Procedure Code.
Finding of the Court:
The court found that the learned Additional Sessions Judge erred in appreciating the evidence of the eyewitnesses and oral dying declarations. The court concluded that the approach of the impugned Judgment and order was erroneous, resulting in a miscarriage of justice, and therefore warranted interference.
Issues: The issues revolved around the power of the High Court to set aside the order of acquittal under revisional jurisdiction, the admissibility and credibility of eyewitness testimony and oral dying declarations, and the conditions under which interference with the order of acquittal is justified.
Ratio Decidendi: The court emphasized the limited power of the High Court to interfere with the order of acquittal, the significance of eyewitness testimony and oral dying declarations, and the conditions under which such evidence should be evaluated. The court also highlighted the need for a proper appreciation of evidence and the potential for miscarriage of justice.
Final Decision: The revision application was allowed, the findings in the impugned Judgment and order were reversed, and the case was remitted to the learned Additional Sessions Judge for deciding the matter and rewriting a judgment afresh on merit, without examining any witness and allowing both sides to argue. The orders cancelling the bail of the respondents/accused after acquittal, if any, stood restored until passing a fresh judgment.
JUDGMENT :
1. Being aggrieved by the Judgment of acquittal passed by the learned Additional Sessions Judge, Nanded, in Sessions Case No.106 of 1998 for the offences punishable under Section 147, 148, 302 read with 34 of the Indian Penal Code dated 27.09.1989, the complainant has preferred this revision under Section 401 of the Criminal Procedure Code.
2. Heard the learned counsels for the petitioner/complainant and respondents/accused after the remand of the case from the Hon'ble Supreme Court.
3. The facts of the case, in brief, were that the deceased was the son of the complainant. It was alleged against the accused that on 14.2.1988 at about 8.30 p.m. at Labour Colony Nanded, they beat the deceased with kicks and blows. Accused no. 2 Sk Bahsir Sk. Mehboob held the deceased from behind and accused no.4 Sk. Alim Sk. Bashir beat the deceased on his chest and left arm with the iron punch. The eyewitness witnessed the blood oozing from his chest and arm. After the assault, the accused fled to a labour colony. The deceased ran towards the Fire brigade station and fell into the mud. P.W. 3, the eyewitness, intimated the incident to the family of the deceased. Then in a short time, P.W. 10, Firoz Abdul Gani, the brother of the deceased, reached the spot of the incident. P.W. 3 Moinuddin Isamudding and P.W. 4 Sayyad Jamil were present there. They picked up the deceased and kept him in the autorickshaw. P.W.10 Firoz took him to the Government Hospital. On the way to the hospital, the deceased narrated the incident to him. P.W. 5 Abdul Gani Sk. Mehboob, the father of the deceased, went to the hospital. The deceased narrated the incident to him. During treatment, he died between 11 to 11.30 pm on the same day. P.W.5 Abdul Gani lodged the report to the police station at 3 to 3.30 a,m. The Police registered the crime against the accused and put the wheel of the investigation into motion. After completing the investigation, the Investigation Officer submitted the investigation completion report under section 173 of Cr.P.C. against the accused.
4. The prosecution has examined twelve witnesses in all as follows,
(i) P.W.3 Moinuddin Isamuddin, P.W. 4 Sayyad Jamil Sayyad Aziz, and P.W. 8 Altaf Hussain Haji Gulam Ahmad as eyewitnesses.
(ii) P.W. 5 Abdul Gani Sk Mehboob and P.W. 10 Firoz Abdul Gani, the father, and brother of the deceased, as witnesses on the oral dying declaration.
(iii) P.W. 1 Dr. Munjajirao Vithhalrao Mohite, Medical Officer, attended to the deceased first and performed the autopsy.
(iv) P.W. 11 Dr. Mohammad Jeelani Mohammad Khaja, Medical Officer, treated the deceased.
(v) P.W. 2 Aleem Khan Jaleel Khan Panch witness on the scene of occurrence.
(vi) P.W. 9 Abdul Moinoddin Sk Abdul Panch witness on weapon recovery under section 27 of Indian Evidence Act from accused no. 4.
(vii) P.W.12 Uttam Lahanu Chaban, the investigation Officer.
5. Before adverting to the grounds for setting aside the acquittal, it would be appropriate to decide first the legal issues raised by the learned counsels for the petitioner and respondents.
6. Learned counsel for the petitioner would submit that where acquittal is granted to the accused, ignoring the reliable testimony of the eyewitnesses, without considering the material evidence on record, and the Judgment was full of inconsistencies that followed reasoning. The High Court, in revision directing retrial by setting aside the acquittal, would be justified. To bolster his arguments, he relied upon the case of Ayodhya Dube and others vs. Ram Sumer Singh, A.I.R. 1981 SC 1415. Both learned counsels, for the petitioner and respondents, have relied upon the case of K. Chinnaswamy V State of A.P. and another, A.I.R. 1962 SC 1788. Relying on the said case, they have argued that where the private parties prefer the revision against the Judgment of acquittal, it is open to the High Court in revision to set aside the order of acquittal. The High Court has a limited power to set aside the finding of acquittal in revisi
