[Cites 10, Cited by 0]
Bombay High Court
Shaikh Imran Yusuf And Another vs The State Of Maharashtra And Another on 6 January, 2026
2026:BHC-AUG:64
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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
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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.
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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.
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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 -
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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
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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
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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.
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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
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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
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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
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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
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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
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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.]
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