1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRI. REVISION APPLICATION NO. 206 OF 2006 Dhiraj s/o Hiralal Hiranwar, Aged about 40 years, Occupation-Laborer, R/o Kanchipura, Nagpur. -- Petitioner Versus 1) The State ( Through P.S. Sitabuldi), Nagpur. 2) Manoj Ramkrishna Jugnake, aged 35 years. 3) Meghraj Bhiwa Mesram, aged 30 years. 4) Shirishchand Laxmanrao Thakare, aged 60 years. 5) Manish Punaramji Sonwane, aged 28 years. 6) Krishna Shankarrao Masram, aged 28 years. 7) Sanjay Ramu Kumare, aged 29 years. 8) Ranjit Ramu Kumare, aged 28 years. 9) Sharma Arjun Masram, aged 35 years. 10)Vinod Ramu Kumare, aged Major. 11)Kishor s/o Arjun Mesram, ( Dismissed) aged 35 years. All R/o Kachipura, Ramdaspeth, Nagpur. -- Respondents 2 ---------------------------------------------------------------------------------------------- Mr. S.D. Zoting, Advocate for petitioner Mr. D.B. Yengal, A.P.P. for the respondent/State. Mr. D.V. Chauhan, Advocate for the respondents 2 to 8 & 10. ---------------------------------------------------------------------------------------------- CORAM :- R. Y. GANOO, J. DATED :- 13th AUGUST, 2009. P. C. : 1. In all ten persons faced the trial before the learned 2nd Ad hoc Additional Sessions Judge, Nagpur under section 302 read with Section 149 and sections 147, 148 read with Section 149 of the Indian Penal Code, in regard to the incident which took place on 27th January, 1997 at about 9.30 a.m. in front of Dharampeth College leading to the death of one person by name Jaggu. The learned 2nd Ad hoc Additional Sessions Judge, Nagpur by judgment and order dated 12th May, 2006 acquitted all the accused except accused No.8 Kishor Arjun Masram under sections 147, 148 read with section 149 of the Indian penal Code. All other accused except accused No.8 came to be acquitted of charge under Section 302 read with Section 34 of the Indian Penal Code. The learned 2nd Ad hoc Additional Sessions Judge, Nagpur observed and directed so far as accused No.8 as follows :- “ prosecution is at liberty to file fresh charge sheet against the accused No.8 Kishor Arjun Masram in case of his arrest.” 3 This petition is filed by one Mr. Dhiraj, who has been cited by the prosecution as a witness namely P.W.8. 2. I have extensively heard learned Advocate Mr. Zoting in support of the petition. In the first place this Court was required to go into the question as to how a petition filed by a witness challenging the order of acquittal can be entertained. The learned Advocate Mr. Zoting could not point out any specific provision from the Criminal Procedure Code which authorized or gave petitioner a substantiate right to institute the petition so as to challenge the order of acquittal by invoking the revisional jurisdiction of this Court. Learned Advocate Mr. Zoting made a feeble attempt to submit by placing reliance on the Judgment in the case of Ram Briksh Singh and others Vs. Ambika Yadav and another reported in (2004) 7 Supreme Court Cases 665 that petition filed by the petitioner is maintainable. He had taken me through para 4 of the Judgment and had submitted that though the powers under revision are required to be exercised sparingly, it is the duty of the Court to correct manifest illegality resulting into gross miscarriage of justice. According to him, this is a fit case where miscarriage of justice had taken place and that is how the petitioner - an eye witness had approached this Court. He also submitted that this Court has power to call for the record suo moto and look into the 4 impugned judgment. With this, he submitted that the petition should be entertained and considered. 3. The learned Advocate Mr. Zoting further took me through the judgment and the record and made an attempt to point out that the evidence of Indubai as well as Dhiraj is required to be accepted to hold that the prosecution had proved the guilt of the accused beyond the shadow of reasonable doubt. According to him, these two witnesses have narrated the incident and have come out with appropriate material. The learned Advocate Mr. Zoting had made efforts to submit that the learned trial Judge erred in disregarding the evidence of Indubai and Dhiraj and indulged illegality. 4. Learned Advocate Mr. Chauvan no doubt supported the judgment delivered by the learned trial Judge and had placed reliance on the judgment in the case of Bindeshwari Prasad Singh Alias B.P. Singh and others Vs. State of Bihar (Now Zharkhand) and another reported in (2002) 6 Supreme Court Cases 650 and had submitted that the powers of this revisional Court are circumscribed within the provision of section 401 of the Criminal Procedure Code. He had drawn my attention to paragraph 12 onwards of the said judgment to show that this Court should be slow in converting the order of acquittal in the order of conviction 5 and for that this Court should not admit this petition. 5. The learned Advocate for the petitioner could not show a specific provision that a witness can file a petition challenging the order of acquittal. The petition could have been dismissed at the outset on that count, however, in order to see that complete justice is done in the matter, I have heard Learned Advocate Mr. Zoting. Learned Advocate Mr. Zoting was given sufficient opportunity to advance his submissions and he had commented that the evidence of Indubai and Dhiraj ought to have been accepted. I have perused the impugned judgment and I am inclined to observe that the observations made by the learned trial Judge that Indubai and Dhiraj cannot be styled as an eye witnesses, is required to be accepted. Even otherwise the evidence of Indubai and Dhiraj does not inspire confidence and that is how the learned trial Judge has rejected the testimony of these witnesses. If this is the position then the claim of the petitioner that he was an eye witness, cannot be accepted. A grievance was made by learned Advocate Mr. Zoting that the Medical Officer was not examined to show that the death of Jaggu was a homicidal death. If these two witnesses, who have been disbelieved by the Court, then it is hardly material as to how the death of said Jaggu had taken place because it is accepted that the 6 death of Jaggu had taken place on account of homicidal death. The prosecution had examined five witnesses, viz. Umesh Wankhede (PW 1), Gendlal Kosare (PW 2), Gajendra Bawane (PW 3), Jitendra Gajbhiye (PW 7 ) and Prabhakar Meshram (PW 9). These witnesses have not supported the prosecution and the learned trial Judge has with elaborate reasons discarded their evidence. There could not be any challenge to the finding that these witnesses had not supported the prosecution. As a result of this the argument advanced by learned Advocate Mr. Zoting that non-examination of a Medical Officer has resulted in causing injustice cannot be accepted. He had submitted that the concerned Police Officer was not examined. The petitioner is free to lodge complaint against all concerned for not examining the Police Officer. In the result, the argument advanced by learned Advocate Mr. Zoting in support of the petition cannot be accepted and the petition is required to be dismissed at the stage of admission. 6. Learned Advocate Mr. Zoting had submitted that learned trial Judge had not framed the point as regards the nature of the death of Jaggu. He has submitted that if the charge under Section 302 of the Indian Penal Code was framed against the accused, it was necessary for the learned trial Judge to frame the point viz. “whether the death of Jaggu was homicidal ?”. I am in agreement 7 with the submission advanced by learned Advocate Mr. Zoting. To that extent, the learned 2nd Ad-hoc Additional Sessions Judge has committed a patent error. In my view, even by this error no prejudice is caused in deciding the matter because the learned Additional Sessions Judge has appreciated the evidence and arrived at a finding in a proper way. Of course the omission on the part of the learned Additional Sessions Judge in not framing the point as aforesaid thereby raising a question whether the death of Jaggu was homicidal is a patent lapse on the part of the learned Judge. He should have noted that he was conducting a trial under Section 302 of the Indian Penal Code, where it was the case of the prosecution that the accused in the said case had caused the death of Jaggu. In my view, this omission on the part of the learned Sessions Judge is required to be brought to his notice so that in future he shall take a note of it and shall frame necessary point as mentioned above in all cases where a charge under Section 302 of the Indian Penal Code is framed. 7. For the reasons mentioned aforesaid, I pass the following order. i) The petition is dismissed at the stage of admission. ii) Registrar General, High Court, Bombay is directed to serve a copy of this judgment upon Mr. M.H. Nadeem as he 8 had delivered the judgment in Sessions Trial Case No. 190/97 being judgment and order dated 12th May, 2006 while he was acting as 2nd Ad hoc Additional Sessions Judge, Nagpur. JUDGE pma.