Bombay High Court
Shaikh Imran Yusuf And Another vs The State Of Maharashtra And Another on 6 January, 2026
2026:BHC-AUG:64
CriRevn-121-2021
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 121 OF 2021
1. Shaikh Imran Yusuf
Age : 40 yrs., Occu. Business,
2. Shaikh Fardin w/o Imran
Age : 37 yrs., Occu. Housewife,
Both R/o. Mukundnagar, Ahmednagar,
Tal. and Dist. Ahmednagar. ... Petitioners
(Org. Respondents/
Accused)
Versus
1. The State of Maharashtra
Through Police Station Officer,
Topkhana Police Station,
Tal. & Dist. Ahmednagar.
2. Mariyam Fayyaz Rathod
Age : 52 yrs. Occ : Nil
R/o: Laltaki Ahmednagar,
Tal. and Dist. Ahmednagar. ... Respondents
.....
Mr. Z. H. Farooqui h/f Mr. Niteen V. Gaware, Advocate for the
Revision Petitioners.
Mr. S. G. Sangle, APP for Respondent No.1-State.
Ms. Sangeeta Desarda, Advocate for Respondent No.2 (appointed
through Legal Aid)
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 05.01.2026
Pronounced on : 06.01.2026
CriRevn-121-2021
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JUDGMENT :
1. The revision petitioners hereby assail the judgment and order dated 31.03.2021 passed by learned Additional Sessions Judge, Ahmednagar in Criminal Appeal No. 298 of 2015, arising out of the judgment and order dated 02.12.2015 passed by learned JMFC, Ahmednagar in RCC No. 58 of 2010, by which de novo trial has been directed by the learned first appellate court.
2. On complaint of present respondent no.2, crime baring no. 162 of 2006 came to be registered for offence under Sections 323, 504, 506 r/w 34 of IPC and Sections 37(1)(3) and 135 of the Maharashtra Police Act. Upon completion of investigation, accused/present revision petitioners were chargesheeted vide RCC No. 58 of 2010 before learned JMFC (Court No. 5), Ahmednagar.
3. At trial, prosecution examined three witnesses and also relied on documentary evidence. On appreciation of evidence, learned trial court vide judgment and order dated 02.12.2015, acquitted the revision petitioners holding that prosecution failed to bring home the charge.
CriRevn-121-2021 -3-
4. Aggrieved by the order of acquittal, complainant preferred Criminal Appeal no. 298 of 2015 before the Court of Sessions, Ahmednagar and learned Additional Sessions Judge, vide judgment and order dated 31.03.2021, partly allowed the criminal appeal, set aside the judgment and order of acquittal passed by learned JMFC and passed following order :
"1. The Criminal Appeal is hereby partly allowed, as under :
2. Impugned judgment and order in RCC No.58/2010, dated 02-
12-2015 delivered by the learned Judicial Magistrate, F.C. (Court No.5), Ahmednagar acquitting both the accused of the offences punishable under Sections 325, 323, 504, 506 r.w. Section 34 of the Indian Penal Code and under Sections 37(1) (3)/135 of the Maharashtra Police Act is hereby set aside and quashed.
A) The matter is remanded back to the learned Trial Court for evidence and decision afresh in the light of above observations in which the rival parties shall get reasonable opportunity to put-forth their respective sides as per law. B) In the light of above directions, the learned Trial Court shall decide the matter afresh as early as possible, obviously, however, being uninfluenced by any of the observations made by this Court in the course of this Judgment.
CriRevn-121-2021 -4- C) The respondent Nos. 1 and 2/accused shall furnish P.B. and S.B. of Rs.7,500/- each by way of compliance of Section 437-A of the Code of Criminal Procedure.
3. Inform the learned Trial Court accordingly."
5. Feeling aggrieved by the above, original accused have preferred instant revision application by invoking Section 397 r/w 401 of Cr.P.C.
6. In the instant revision application, this Court is called upon to ascertain as to whether the impugned order passed by learned Additional Sessions Judge is just, legal and proper. By umpteen judgments, scope of Section 397 Cr.P.C. has been time and again reiterated. Though there are catena of judgments, the landmark judgment of Amit Kapoor v. Ramesh Chander and another (2012) 9 SCC 460 is relied and the relevant observations therein are borrowed and quoted as under :
"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well -
CriRevn-121-2021 -5- founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
7. Here, prosecution has examined in all three (3) witnesses. Brief account of their evidence is as under :
PW1 Mariyam - complainant, in her evidence at Exhibit 9 deposed that on the relevant day, while she was in the house, she heard accused no.2 hurling abuses and therefore questioned accused no.2, and according to her, accused no.1 initially caught her by her hair, pushed her down and assaulted her by means of wooden stick causing her three teeth to break.
PW2 Samarin seems to be the daughter of PW1 and it is her testimony at Exhibit 49 that on 14.11.2006 around 12.30 p.m., while she, her mother and sister were painting their house, accused nos. 1 and 2 abused them and when her mother questioned them, it is alleged that, accused no.1 hit her mother CriRevn-121-2021 -6- with a stick on mouth, hands and legs, whereas accused no.2 made her mother fall by catching her hair and both accused beat her as well as her sister. Therefore, she, her mother and sister were taken to hospital.
PW3 Motilal acted as pancha to seizure panchanama of stick Exhibit 55 dated 18.11.2006.
8. Above is the only oral evidence on behalf of the prosecution in trial court. Learned JMFC, by order dated 02.12.2015, has acquitted the accused primarily on the ground that testimonies of prosecution witnesses are not consistent and are rather at variances. Learned trial court also, in para 8 to 17 discussed the evidence of above referred prosecution witnesses and held that assault has not been proved as alleged. Medical expert is also not examined. For above reasons, acquittal came to be recorded by the judgment and order dated 02.12.2015.
9. Learned counsel for the revision petitioners supports the order of trial court and assails the order of first appellate court submitting that, here, prosecution had miserably failed to establish the charges. That, complaint was motivated one. That, prosecution witnesses were not consistent and there were material omissions and variances as a CriRevn-121-2021 -7- result of which, according to him, order of acquittal passed by the trial court was justified. He pointed out that in appeal by the complainant, there was no reason for the learned first appellate court to set aside the reasoned order and further directing de novo trial. According to him, the case did not warrant de novo trial at all. There were no circumstances or exigencies to direct a fresh trial when nothing was on record to demonstrate any patent perversity, illegality or irregularity in the trial undertaken by learned JMFC. He pointed out that, order of the first appellate court is against the settled legal principles and law on re-trial. According to him, on merit there was acquittal and the lapses and lacunas on the part of investigation cannot be allowed to be filled up again by fresh trial. For above reasons, he urges to interfere by allowing the revision.
10. Per contra, learned APP as well as learned counsel for respondent no.2 would support the order of first appellate court on the ground that material evidence, like medical evidence, was not allowed to be brought by the learned trial court and it had resulted into unwarranted acquittal. They both submit that, it was expected of the trial court to secure presence of the medical officer, but instead, benefit has been given to the accused and as such, they both justify the order of the first appellate court directing fresh trial.
CriRevn-121-2021 -8-
11. In this revision, the only question which needs to be addressed is whether after acquittal, first appellate court was justified in directing afresh/de novo trial.
12. There is no dispute that on complaint of present respondent, crime was registered for offence under Sections 323, 504, 506 r/w 34 of IPC and Sections 37(1)(3) and 135 of the Maharashtra Police Act and on being chargesheeted, present revision petitioners were made to face trial. Record indicates that in trial court, prosecution adduced evidence of three witnesses, i.e. complainant, her daughter and one pancha. Allegations are that, both accused initially hurled abuses to complainant and later on indulged in physical assault on complainant. On above accusations, charges were framed and both accused were made to face trial vide RCC No. 58/2010. The trial ended up in acquittal.
13. The reasoning of the trial court is dealt in paragraphs 8 to 17. Learned trial court analyzed the evidence of complainant and noted that, in the complaint setting law into motion, it was not reported about loss of any tooth or teeth. Further, it was noted that there was no medical evidence in support of alleged injury suffered by CriRevn-121-2021 -9- complainant, as very medical officer who allegedly issued medical certificate was not examined. Moreover, it was noted by learned trial judge that, in spite of incidence being of 2006, medical certificate procured and paced before the trial court was of 2009 and on account of failure to examine the author of the medical certificate, prosecution story was not considered worthy of credence. That apart, learned trial court noted omissions in the testimony of daughter of complainant. In the evidence of PW1 and PW2, it was notice that there was variance on the point of catching hold of hair and making complainant fall. All such factors contributed to the formation of opinion of trial court that, prosecution had failed to prove the charges, more particularly on account of non-examination of the medical officer and concerned authority with regard to violation of provision under the Maharashtra Prohibition Act.
14. On revisit and relook to the evidence on behalf of prosecution in trial court, even this Court is of the opinion that in absence of medical evidence, case of prosecution about assault has not been proved beyond reasonable doubt. Another peculiar feature of this case is that, apart from failing to examine medical expert, prosecution seems to have procured medical certificate of the year 2009 when the alleged assault and occurrence was of 2006. Such aspect also CriRevn-121-2021 -10- contributes to the veracity of prosecution case. It is settled principle of criminal jurisprudence that, burden is always on prosecution to prove the case beyond reasonable doubt, and on its failure, benefit goes to the accused. Precisely with above quality of evidence, more particularly variances in the evidence of complainant and her very daughter, coupled with omission, case of prosecution was rendered doubtful and as such, it was a fit case for extending benefit of doubt. In short, it is acquittal on merits.
15. The learned first appellate court in para 19, in spite of making observations that it is settled position that ocular evidence has to be corroborated by medical evidence, held that due to lack of evidence of medical officer, accused were acquitted and in spite of summons being issued to superintendent of police, said authority failed to appear. Finally, after dealing with the citations relied by both the sides, in para 24 the first appellate court held that cumulative effect of discussion in the foregoing paragraphs was that, matter was required to be remanded back to the learned trial court for recording evidence of concerned medical officer and Investigating Officer.
16. Such observations were unwarranted and more particularly, as submitted, what illegality or irregularity is committed by trial court, is CriRevn-121-2021 -11- not elaborated. As stated above, if at all prosecution wanted to prove the charges of assault, in view of testimony of complainant, in the light of availability of medical certificate, the medical officer who treated the complainant was a material witness and was expected to be examined. Prosecution had apparently failed to do so for the best reasons known to it and therefore learned trial court was justified in giving benefit of doubt to the accused, as prosecution had failed to discharge its primary and fundamental burden.
17. It is fairly settled position that, retrial, fresh trial or de novo trial is to be directed only in exceptional circumstances and when miscarriage of justice has occasioned due to any irregularity, error or omission. It would be fruitful to rely on the judgment of the Hon'ble Apex Court in the case of Pandit Ukha Kolhe v. State of Maharashtra (1964) SCR 926, wherein it has been observed as under :
"An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the CriRevn-121-2021 -12- Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate Court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re-trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons."
Similar views are echoed in the case of State of M.P. v. Bhooraji and others (2001) 7 SCC 679.
18. Taking recourse to the above settled legal position and on considering the reasoning assigned by learned first appellate court, here, no sound and sufficient reasoning has been assigned pointing out any patent illegality, irregularity or omission in conducting the trial at the hands of learned trial court so as to direct fresh trial. On the contrary, learned trial court has analyzed and appreciated the testimonies of available witnesses and has rightly held that CriRevn-121-2021 -13- prosecution failed to bring home the charges and committed no error whatsoever in acquitting the accused. There is nothing perverse in the trial court judgment, nor there is any failure to exercise the jurisdiction as expected by law so as to direct de novo trial. Resultantly, the order of first appellate court cannot be allowed to sustain. Hence, the following order :
ORDER I. The Criminal Revision Application is hereby allowed in terms of prayer clause [B].
II. The Judgment and order of acquittal dated 02.12.2015 passed by learned J.M.F.C. (Court No.5), Ahmednagar in RCC No. 58 of 2010 is hereby confirmed.
III. The Criminal Revision Application is accordingly disposed off.
[ABHAY S. WAGHWASE, J.] vre