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Bombay High Court
Shaikh Afroz Shaikh Gulab vs The State Of Maharashtra on 9 January, 2026
2026:BHC-AUG:676
REVN-181-2021
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 181 OF 2021
Shaikh Afroz S/o. Shaikh Gulab,
Age : 40 years, Occu. : Labour,
R/o. Takali, Tq. Khultabad,
Dist. Aurangabad. ... Applicant
Versus
The State of Maharashtra,
Through Khultabad Police Station,
Khultabad, Dist. Aurangabad. ... Respondent.
.....
Mr. Shaikh Ashraf Patel, Advocate for Applicant.
Mr. S. M. Ganachari, APP for Respondent - State.
.....
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 07 JANUARY 2026
PRONOUNCED ON : 09 JANUARY 2026
JUDGMENT :
1. In this revision, there is challenge to the judgment and
order dated 24.11.2021 passed by learned Additional Sessions
Judge, Aurangabad in Criminal Appeal No. 56 of 2016 modifying and
confirming the order of conviction awarded by learned J.M.F.C.
Khultabad, Dist. Aurangabad in S.C.C. No. 27 of 2012 for commission
of offence punishable under sections 279 and 304-A of IPC.
2. In nutshell, prosecution was launched by Khultabad
Police Station against present revision petitioner vide S.C.C. No. 27 of
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2012 on accusation of commission of offence punishable under
sections 279 and 304A of IPC. The trial ended up by recording
conviction for offence punishable under section 279 as well as 304A
of IPC. Said judgment and order was challenged by present revision
petitioner by filing Criminal Appeal No. 56 of 2016 before the Court of
Sessions and the learned Additional Sessions Judge vide its judgment
and order dated 24.11.2021 dismissed the appeal, but modified the
order of Magistrate by maintaining conviction only for offence
punishable under section 279 and directing revision petitioner to
suffer imprisonment for three months and to pay fine of Rs.5,000/-.
Such order of Additional Sessions Judge is now the subject matter of
present revision.
3. Learned counsel for revision petitioner would question
the implication for offence punishable under sections 279 and 304A
of IPC. According to him, there was no cogent, reliable and
trustworthy evidence to record guilt for offence of rash and negligent
driving or causing death due to negligence. He would take this court
through the evidence of prosecution and submit that, report was
lodged by the maternal uncle of deceased alleging above offence,
however, according to him, uncle of deceased was not an eye witness,
and as such, it was not open for prosecution itself to rely on his
testimony, which was at variance. He emphasized that before the
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police, it was reported that PW3 father was inside the house when the
incident took place, whereas in the witness box contrary version has
been given about personally seeing the mishap. On such count, he
invited attention of this court to the statement recorded by police as
well as testimony in the witness box.
4. He further elaborated that the deceased child was playing
on the tar road i.e. the road which was meant for plying vehicles.
That, there is no evidence that vehicle was being driven in rash and
negligent manner and according to him, unless it is proved that
vehicle was driven in rash and negligent manner or in high speed,
charges cannot be said to be brought home, as according to him, there
was no evidence about rash and negligent driving. He would also take
this court through he spot panchanama placed on record and would
submit that there is improper appreciation of evidence, resulting into
erroneous findings and conclusion. Consequently, for above reasons,
he urges to allow the revision.
5. The above submissions are countered by learned APP,
who would support the findings and conclusion by taking this court
through the statement given by the PW3 father as well as his
testimony. According to him, the PW3 father has clearly stated about
seeing the dash given by revision petitioner while he was behind the
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wheel of the offending vehicle. Learned APP pointed out that,
testimony of PW3 father finds support from the testimony of his wife,
who categorically stated about coming out of the house and seeing
her husband present at the time of the mishap. For above reasons, he
supports the judgment and order passed by both, learned J.M.F.C. as
well as its confirmation by the learned Additional Sessions Judge and
prays to dismiss the revision for want of merits.
6. Heard. Perused the papers and record. This court is
exercising jurisdiction and powers under section 397 of Cr.P.C..
Before adverting to the merits of the case, it would be fruitful to
throw light on the scope and object of this section. It is settled
position that while exercising revisionary powers, a court is not
expected to undertake the exercise of complete re-appreciation or
reevaluation of the evidence. Revisionary powers are apparently
distinct from appellate powers and scope is limited only to primarily
limited supervisory in nature. The court in revision generally does
not re-appreciate the evidence and arrive at a different conclusion,
even if different view of evidence is possible. Re-appreciation of facts
is permissible and justified only in exceptional cases where it is
demonstrated that the findings recorded by the court below are
patently perverse, based on no evidence, or material evidence has
been ignored or kept out for consideration. Bearing this limited scope
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into mind, record and impugned orders are put to scrutiny.
7. Case of prosecution is that, on relevant day, when the
nephew of informant PW1 was playing outside the house, he suffered
dash given by Tata Tempo vehicle and unfortunately came behind the
rear wheels and died on the spot. Here, prosecution seems to have
adduced evidence of in all six witnesses i.e. PW1 Parasram
informant, maternal uncle of deceased; PW2 Waman seems to be the
panch to spot panchanama (Exh.16); PW3 Suresh seems to be the
father of deceased and an eye witness; PW4 Kavita, mother of
deceased; PW5 ASI Rathod is the Investigating Officer and PW6
Sachin is the RTO official, who issued the fitness certificate of the
vehicle after inspection.
8. Here, much emphasize is laid on the evidence of PW3
Suresh, who is an eye witness and it is tried to be submitted that, he
gave contrary version while his statement was recorded by police
and the one deposed by him in the witness box. It is specific defence
of revision petitioner that this witness is not an eye witness and
there is other distinct independent evidence to hold that vehicle was
being driven in rash and negligent manner so as to attract
criminality under section 279 of IPC.
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9. In view of above objection, both statement of Suresh
Adhane before the court as well as to the police, are visited. In
testimony at Exh.18, he has stated that, between 3.00 to 3.30 p.m.,
on 15.12.2011 while his children were playing in front of the house, a
TATA tempo 709 bearing No. MH-04-AC-4568 came in high speed
and gave dash to his son, as a result of which he suffered head injury
and even the rear wheel of the vehicle was run over his son, due to
which he died and he claims to have personally eye witnessed the
accident. According to him, the accident took place because of
negligence on the fault of driver.
While under cross, he answered that, at the time of
incident, he was out of the house and he denied it so happening that
he was inside the house. Then he answered that, he is unable to state
why it is appearing in his statement to police that he was in the
house. There is also omission brought about seeing the tempo driver
after the incident.
10. The above testimony is strongly relied to set up a case
that, PW3 Suresh was not eye witness. This court refrains from
forming an opinion to this extent for the simple reason that in the
statement to police that 'he was in the house', is not to be taken in
literal sense that 'inside the house', it could also mean that he was
available at his residence and it does not necessarily mean that he
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was inside the house and not outside. True it is that, mere allegation
about driving vehicle in high speed, does not necessarily mean that
there was rashness or negligence, however, vehicle drivers are
required to be alert to the human traffic on the road while plying the
vehicle, and more particularly, are expected to be cautious and slow
while plying the vehicle though on tar road, while vehicle is in the
vicinity of town or village. Therefore, for above reason, this court
finds no substance or merits in the contentions and submission raised
by learned counsel for revision petitioner.
11. On studying the judgment of both, learned trial court as
well as first appellate court, this court does not find any illegality,
patent perversity or error in appreciation or non consideration of
evidence in proper perspective so as to interfere. There being no
merits in the revision, the same is required to be dismissed. Hence,
the following order is passed.
ORDER
The Criminal Revision Application stands dismissed.
(ABHAY S. WAGHWASE, J.)
12. After pronouncement of judgment, the learned counsel for
the revision applicant prays six weeks time to surrender so as to
enable him to approach the Hon'ble Supreme Court.
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13. Considering the above request made by learned counsel
for revision applicant, six (6) weeks time is granted for the revision
applicant to surrender.
(ABHAY S. WAGHWASE, J.)
Tandale
