Section 27 recovery of the weapon has been proved, and blood stains were found on it, which on chemical analysis was found to be human blood. The prosecution did not confront the eyewitness with the weapon, which the Trial Court was described in a manner, which was not in consonance with the physical appearance of the weapon produced before the Court. Section 27 recovery alone cannot lead to a conviction and here it fails to implicate A4 since there is no connection to the crime proved, but for the human blood found, not indicated to be that of the accused. {Para 18}
20. The only evidence is the blood stains found on the weapon recovered under Section 27 of the Evidence Act which by itself cannot lead to a finding of guilt without other circumstances which provide a complete chain leading to the hypothesis of guilt being the only one possible, excluding any hypothesis of innocence. The facts proved by the prosecution is the homicidal death, the brutal murder of a person and nothing to inculpate the accused except the eyewitness testimonies which are suspect. Our reappreciation of the evidence, manifestly indicates that this was not a fit case for converting the revision petition filed before the High Court to an appeal.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No…………. of 2026
(@Special Leave Petition (Crl.) No.1115 of 2023)
Khalil Pasha & Ors. Vs Abdul Rasheed & Anr.
Author: K. VINOD CHANDRAN, J.
Citation: 2026 INSC 754
Leave granted.
2. A distraught brother was before the High Court of Judicature at
Bombay with a Criminal Revision Application against the judgment of
acquittal passed in a case in which the accused were arrayed for the
murder of one Qavi. The order of acquittal was once upset by the
High Court but without hearing the accused. An SLP was filed in
which, by Annexure P13 the matter was remitted back to the High
Court noticing Section 401(2) of the Criminal Procedure Code, 1973
(for short, ‘Cr.PC) which restricts the revisional power being
exercised to the prejudice of the accused, unless there is an
opportunity afforded for hearing, either personally or through
Counsel; which obviously was not provided since the Advocate
engaged had expired.
3. On remand, the High Court again by the impugned order
remitted the matter to the Additional Sessions Judge to consider
afresh the testimony of the eyewitnesses coupled with the recoveries
made under Section 27 of the Indian Evidence Act, 1872 and the
Chemical Analysis Report produced. The finding of the Trial Court
refusing to place any credence on the dying declarations were
upheld. The accused are before us challenging the order of remit
with respect to an incident alleged to have occurred on 14.02.1988.
4. The 1st respondent who was the revision petitioner had sought
for an appointment of a Senior Advocate through legal services and
Ms. Mukta Gupta, Senior Advocate was appointed by this Court
assisted by Mr. Anuj Agarwala, learned AOR. A question was also
raised by this Court by order dated 17.12.2024 as to whether in a case of acquittal under Section 302 of the Indian Penal Code, the revision petition has to be placed before a Division Bench or a Single Bench; the impugned order having been passed by a Single Judge. We heard Mr. Amol Nirmalkumar Suryawanshi, the learned AOR for the appellants.
5. As to the question raised, we find that the same is now academic. As on the date of filing of the criminal revision application, there was no provision for appeal by the victim from an order of acquittal and Section 378 of the Cr.P.C only provided for an appeal in case of acquittal, by the State, that too after obtaining leave of the
High Court. However, as pointed out in the written submissions
placed before us by the learned Amicus, a proviso was introduced
under Section 372 of the Cr.P.C wherein the victim was provided with
a right to prefer an appeal against any order passed by the Court,
acquitting the accused or convicting for a lesser offence or imposing
inadequate compensation; as inserted by Act 5 of 2009. It has also
been held by this Court in Mallikarjun Kodagali v. State of
Karnataka1 that the victim is not required to pray for grant of special
leave to appeal, as under section 378, since he has been conferred
with a statutory right under the proviso to Section 372 which does not
provide for obtaining a special leave to appeal unlike in sub-section
(4) of Section 378. Joseph Stephen v. Santhanasamy2 relying on
Mallikarjun Kodagali1 held that no revision can be entertained at the
1 (2019) 2 SCC 752
2 (2022) 13 SCC 115
instance of a victim against the order of acquittal where the remedy
of appeal is available in the Cr.P.C, after the 2009 amendment.
6. It is also pertinent to note here that while Section 401 of Cr.P.C
delineates the power of revision, sub-section (4) prohibits the
entertainment of any revision at the instance of a party who has a
remedy to file an appeal, which had not been availed of. This does
not preclude the High Court from taking up a revision since as per
sub-section (1) of Section 401, it could be considered even suo motu
as is provided for by the words employed:
“In the case of any proceeding the record of which has
been called for by itself or which otherwise comes to its
knowledge, the High Court may, in its discretion, exercise
any of the powers conferred on a Court of Appeal by
Section 386, 389, 390 and 391 or on a Court of Session by
Section 307..”
7. It is also pertinent that sub-section (5) empowers the High Court
even in a case where an appeal lies and the appellate remedy
available is not availed, but recourse is taken to the revisional
remedy, on an erroneous belief that no remedy lies thereto, in the
interest of justice, the application for revision can be treated as a
petition of appeal and dealt with accordingly.
8. The jurisdiction to consider a revision obviously is conferred on
a Single Judge or a Division Bench by the applicable High Court Act
and Rules. We need only notice that with regard to the above revision
filed, there was ample power available on the revisional court to
convert it into an appeal; be it the date of filing, falling in 1990 and at
the time of disposal in 2022. However, if as per the jurisdiction
conferred under the High Court Act and Rules, the appeal is to be
considered by a Division Bench, it will have to be referred to the
jurisdictional bench, who would also have to be satisfied as to the
erroneous belief under which the revision was filed, despite an
efficacious appellate remedy; which in the present case was not
available in 1990 when the revision was instituted. We notice that
Section 442 of the Bharatiya Nagarika Suraksha Sanhita, 2023 (for
short, ‘BNSS’) is analogous to Section 401 of the Cr.P.C; a verbatim
reproduction.
9. Considering the fact that the incident itself is of the year 1988
and the accused having been under legal proceedings from then
onwards, we deem it appropriate to consider the matter on a reappreciation
of the evidence as led before the Trial Court. The
prosecution, in the trial, attempted to prove motive, the incident of an
unlawful assembly and assault on the deceased. The dying
declaration, the nature of injuries, cause of death, the recoveries of
weapon and clothes and the chemical examination report, were the
circumstances projected to prove the murder as having been
committed by the accused arrayed before the court.
10. On motive, it was the contention that an altercation occurred
between A4 and the deceased in the shop of A3 when after a wordy
duel, the deceased slapped A4. PW4, who witnessed the incident
along with one Ajaz, intervened, separated them and send them on
their ways in the direction of their respective homes. Later, at 08.30
pm, near one Sagar Tailoring shop PW3, PW4; who had again
stepped on to the road to have tea with Ajaz, and PW8, witnessed the
assault. A2 was holding the deceased when A1, A3, A5 and A6 were
assaulting him. The victim was seen running away and falling on the
roadside near the fire brigade station. PW10, the brother of the
deceased came to the scene of occurrence on hearing about the
attack on his brother. The deceased lying injured on the wayside was
taken by PW10 to the hospital in an auto rickshaw.
11. PW1 was the doctor who examined the victim initially and later
PW11, the surgeon attended to the injured, who succumbed to the
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injuries. PW5, the father of the deceased came to the hospital before
the death and PW12, the Investigating Officer, summoned on the
intimation given by the hospital, reached the hospital after the death.
The accused is said to have made dying declaration to PW10 - his
brother, PW5 - his father and PW11 - the doctor. The post-mortem
report of PW1 indicated eight injuries of which five and six were
penetrating injuries, which led to the death, due to hemorrhagic
shock sustained by reason of the said internal injuries to the left lung
and heart. A4 was arrested subsequent to the arrest of others and the
weapon used in the assault was recovered under Section 27 of the
Indian Evidence Act, 1872, through Ex.37 mahazar and the clothes
worn by A2 were also seized. Both the clothes and the weapon
indicated the presence of human blood on chemical analysis.
12. The Trial Court had examined the testimony of the witnesses
threadbare and acquitted the accused. Insofar as the motive, PW4
spoke of an altercation in the shop of A3 between A4 and the
deceased which was narrated to be on account of the deceased
having refused to whitewash the house of A3. It has been brought out
in the cross examination of PW4 itself that the deceased was engaged
in a business, specifically of selling apparels in the locality under a
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Crl. A. @ SLP (Crl.) No.1115 of 2023
scheme, presumably on installments and not engaged in
whitewashing. PW4 is said to have witnessed the crime proper, and
later he saw the injured lying on the road from where he was taken to
the hospital. PW4 consistently spoke of Ajaz who was with him
throughout, to witness both the altercation earlier in the night and the
murder later at 08.30 pm, who has not been examined before Court.
This has been specifically noticed by the Trial Court, which assumes
significance since the other eyewitnesses; PW3 and PW8, does not
speak of the presence of PW4 or each other.
13. PW3 is another witness who narrated the assault of the
deceased by A1 to A6 who also was an inquest witness. Despite his
signature having been taken in the inquest report, he admits in cross
examination that his statement under Section 161, Cr. PC was taken
two or three days later to the inquest report. This assumes
significance since it was the I.O, PW12 who prepared the inquest
report and took down the statement under Section 161. The
prosecution did not attempt to elicit any explanation for the delay
when the I.O was examined. PW3 also spoke of having left the scene
where the injured was lying on the road, proceeding to the house of
the injured to inform them, when it is admitted that the police station
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Crl. A. @ SLP (Crl.) No.1115 of 2023
was just 5-7 minutes away from the scene of occurrence. He is said to
have informed the relatives of the injured, which however is not
corroborated by PW10, the brother who came to the spot on
receiving such information. PW10’s evidence is that he came to the
spot after receiving information at his home delivered by some
children.
14. PW8 was another passerby who is said to have witnessed the
incident and walked away to his house. He is said to have told PW5
about an assault on the deceased when he went to the hospital. His
testimony also does not inspire confidence, especially since he talks
of having been a moot spectator to the incident when admitting to a
close acquaintance with PW4. PW3, PW4 and PW8, as rightly
observed by the Trial Court, are chance witnesses. Chance witnesses
in a public place, as found by the High Court cannot be disbelieved
for that reason alone. However, their testimony, especially of the
incident, does not inspire confidence and hence their presence at the
scene of occurrence had to be established since all of them had close
acquaintance with the injured and did not take him to the hospital or
inform the police. This assumes relevance especially with reference
to the evidence of PW1-doctor as to who brought the injured to the
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Crl. A. @ SLP (Crl.) No.1115 of 2023
hospital and the suspicion regarding the very scene of occurrence,
which we will deal with a little later.
15. PW1 – doctor testified that the injured was brought to the
hospital by an auto-driver and was not accompanied by anybody. He
also deposed that the injured was admitted at about 09.30 pm and
was attending to him, till he summoned PW11, the surgeon, at 11.10
pm. The Trial Court noticed from the hospital register that PW11 had
recorded in the register that the injured was brought conscious to the
hospital. However, PW1 who admitted the injured was not even
asked about his role other than conducting post-mortem
examination, in his chief-examination. In cross-examination PW1 also
was stated that the injured was brought unconscious and never
regained consciousness. His cross examination was not tested in reexamination
by the prosecution. More importantly, the specific
statement of PW1 was that the injured was brought to the hospital by
an auto rickshaw driver and no one was accompanying him. PW11,
on the other hand, despite no questions having been asked in chief
examination regarding the status of the injured; whether he would
have been able to make a dying declaration or not, admitted in cross
examination that the injured was conscious to give a dying
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Crl. A. @ SLP (Crl.) No.1115 of 2023
declaration. A specific suggestion was made by the accused that he
had given the testimony and written to that effect only to oblige a
colleague who worked in the same hospital who was related to the
father of the injured. The response was that he was not obliging the
father of the deceased who was his friend. PW11’s statement also was
that the patient was accompanied by his father, who recited the
history. This cannot be believed since it was PW1 who admitted the
injured and that too at 9.30 p.m. while PW11 saw the injured long after
at 11.10 p.m.
16. We cannot but observe that the testimony of PW11 that the
injured was conscious has to be considered, juxtaposed with the
testimony of PW10 and PW12 about the dying declaration. PW10
spoke of a dying declaration made by the injured in the auto rickshaw
while however PW5, the father spoke of a dying declaration made in
the hospital, immediately on his arrival which was about 20 minutes
after the injured was brought to the hospital. Hence, the certification
of the injured being conscious by the doctor who treated him at 11.10
pm cannot support the dying declarations. PW1 deposed that the
deceased was brought to the hospital by an auto rickshaw driver and
was not accompanied by any relative. In this context, we have to
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Crl. A. @ SLP (Crl.) No.1115 of 2023
notice that PW4 and PW8 spoke of the incident having culminated in
the injured lying on the roadside. However, they did not take the
injured to the hospital or inform the police when the police station
was just 5-7 minutes away. They also do not speak of any information
passed on to the relatives and PW10, the brother of the deceased
surprisingly appeared on the spot which can only be much later.
17. Testimonies of the eyewitnesses and PW10, as found by the
Trial Court raises a suspicion about the scene of occurrence;
especially when the I.O had just prepared a scene mahazar and not
made any seizures from the spot. Definitely the blood of the accused
would have been spilled at the scene, since he sustained numerous
cut injuries and would have been profusely bleeding at the spot from
which he was alleged to have been transported to the hospital. The
dying declaration hence, is on a very sketchy premise, was the
finding of the Trial Court, especially when there was no clarity as to
the conscious state of the injured at the hospital which is also
presumably from the very grievous injuries suffered by the
deceased, as disclosed from the postmortem report which also
speaks of internal injuries in the lung and the heart making it highly
improbable that the injured was conscious and was able to speak
clearly of the assault made by the five named persons; which is the
narration of PW10 - brother and PW4 - father of the deceased. The
dying declaration anyway has not been believed by the High Court
also.
18. Section 27 recovery of the weapon has been proved, and blood stains were found on it, which on chemical analysis was found to be human blood. The prosecution did not confront the eyewitness with the weapon, which the Trial Court was described in a manner, which was not in consonance with the physical appearance of the weapon produced before the Court. Section 27 recovery alone cannot lead to a conviction and here it fails to implicate A4 since there is no connection to the crime proved, but for the human blood found, not indicated to be that of the accused.
19. The motive fails to impress this Court as it failed to impress the
Trial Court. The eyewitnesses’ testimonies are not trustworthy. The
dying declaration spoken of was not credible. The scene of
occurrence was not above suspicion, for no tell-tale signs of the
brutal attack having been seized. The expert doctors differed on the
conscious state of the injured and the doctor who attended the patient
for the initial hours spoke of the patient having remained unconscious
throughout.
20. The only evidence is the blood stains found on the weapon recovered under Section 27 of the Evidence Act which by itself cannot lead to a finding of guilt without other circumstances which provide a complete chain leading to the hypothesis of guilt being the only one possible, excluding any hypothesis of innocence. The facts proved by the prosecution is the homicidal death, the brutal murder of a person and nothing to inculpate the accused except the eyewitness testimonies which are suspect. Our reappreciation of the evidence, manifestly indicates that this was not a fit case for converting the revision petition filed before the High Court to an appeal.
21. We have absolutely no reason to sustain the impugned order.
A brutal murder definitely, and we understand the anguish of the
brother who was the revision petitioner. The murder went
unavenged, but it is not for the courts to convict the accused on mere
assumptions when the evidence led by the prosecution fails to satisfy
the judicial mind, of the guilt of the accused. The decisions are legion
which speak of what a reasonable doubt is, and it is trite that while an
acquittal is handed down by the Trial Court, it fortifies the
presumption of innocence that is available to an accused. The
principle not to overturn an acquittal if the view taken in the order of
acquittal is plausible; even if another view is possible, is not one of
mere caution but is a tenet of criminal jurisprudence which ensures
no prejudice being caused to the accused and ensures the benefit of
any reasonable doubt arising, being conferred on the accused.
22. We allow the appeal and restore the order of the Trial Court.
The accused shall stand acquitted. If they are in prison, they shall be
released forthwith, if not wanted in any other case and if they are
already on bail, their bail bonds shall stand cancelled.
23. Pending applications, if any, shall stand disposed of.
.…..………………………... J.
(J. B. PARDIWALA)
..………….…………………. J.
(K. VINOD CHANDRAN)
NEW DELHI;
JULY 28, 2026.
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