In an important point of law that came up in a criminal writ petition filed by one Siraj Pathan, who was an eye witness to a murder, the Bombay High Court has dismissed the petition and held that an eye witness cannot circuitously impugn or appeal against a judgment of acquittal and seek a re-trial under Section 378 of the CrPC.
Justice Mangesh Patil of the Aurangabad bench was hearing the said petition wherein the petitioner contended that even though he was an eye witness named by the prosecution, he was not examined. Therefore, the judgment of acquittal of all the accused in the case was challenged by the petitioner.
It was the case of the prosecution that on March 31, 2009, one Avinash Bharate was found murdered near Bhagyalaxmi Kala Kendra at Jamkhed in Ahmednagar district of Maharashtra.
According to the prosecution, there was an altercation between the deceased and the eight accused in the case who are also respondents in the said petition. The deceased was assaulted on his head by accused number 1 and others hit him with sticks and stones. The petitioner was one of the eye-witnesses of the incident.
However, during the course of the trial, all the eye witnesses turned hostile, even the panch witnesses turned hostile. So, by the judgment and order dated October 30, 2010 the respondent/accused were acquitted of all the charges.
Submissions and Judgment
Additional Public Prosecutor GO Wattamwar argued that several attempts were made by the prosecution to examine the petitioner, but he was not found. Summons were issued, still the petitioner was not traceable.
Appearing on behalf of the accused respondents, NB Khandare questioned the petitioner’s locus standi in the matter and argued that a full-fledged trial had been conducted in the case before his clients were acquitted, thus the petition should be dismissed.
He further submitted that the only remedy to impugn the judgment of acquittal was to prefer an appeal under Section 378 of the CrPC but Section 372 only empowers a victim to file such an appeal. Thus, the petitioner as an eye witness could not file such an appeal.
Petitioner’s advocate Mazhar Jahagirdar relied on the decision of the Supreme Court in the Best Bakery case (Zahira Habibulla H Sheikh And Another Vs. State of Gujarat and others) and demanded that the order of acquittal be set aside and the trial be started afresh.
After noting that the time taken to record statements of all the witnesses before pronouncing the judgment, was appropriate, the court concluded:
“Therefore, it does not appear that the trial was concluded in a hurried manner, so as to give rise to any doubt sufficient to attribute any motive on the part of the Prosecutor.”
The court further noted:
“It is apposite to note that the petitioner is a witness, who has no right to prefer any appeal, since he is not a victim as contemplated under Section 372 of the Code of Criminal Procedure. Therefore, he has no right to prefer any appeal against acquittal under Section 378 of the Code of Criminal Procedure. When the law requires a thing to be done in a particular manner and confers the right to appeal only to a victim of a crime, that thing should be done, only in that particular manner. It cannot be done circuitously. Precisely for these reasons, the present attempt being made by the petitioner is nothing but a circuitous attempt to impugn the Judgment and order when he is not authorized in law to impugn it.”
Moreover, Justice Patil noted that the Best Bakery case was not applicable to the present petition as the circumstances were entirely different. A witness in the case, who was examined during the trial, filed an affidavit before the apex court stating the circumstances under which she was compelled to depose in a particular manner. Thus, the apex court decided to transfer the case out of Gujarat and start the trial afresh.
Thus, the petition was dismissed.