MOFIL KHAN Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This Petition has been filed under Article 137 of the Constitution of India, seeking review of the judgment dated 09.10.2014 in Criminal Appeal No.1795 of 2009. The Petitioners were convicted for offences under Sections 302 and 449 read with Section 34 of the Indian Penal Code, 1860 (for short, "IPC") and sentenced to death for offence under Section 302 read with Section 34, IPC and 10 years of rigorous imprisonment for offence under Section 449 read with Section 34, IPC. The conviction and death sentence imposed by the trial court was upheld by the High Court of Jharkhand by an order dated 02.07.2009 and the Criminal Appeal filed by the Petitioners against the said order was dismissed by this Court by its judgment dated 09.10.2014. In Mohd. Arif v. Registrar, Supreme Court of India, (2014) 9 SCC 737, this Court held that review petitions arising out of appeals affirming the death sentence are required to be heard orally by a three-Judge bench. Pursuant to the said judgment, this Review Petition is listed for open court hearing.

(2.) At the outset, it is necessary to set out the scope and ambit of the jurisdiction of this Court in hearing review petitions. Article 137 of the Constitution empowers the Supreme Court to review any judgment pronounced by it, subject to the provisions of any law made by Parliament or any rules made under Article 145 of the Constitution of India. Order XLVII, Rule 1 of the Supreme Court Rules, 2013 provides that the Court may review its own judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 and in a criminal proceeding except on the ground of an error apparent on the face of the record. Needless to mention that the Supreme Court Rules, 2013 are framed under Article 145 of the Constitution. Order XLVII, Rule 1 of the Supreme Court Rules, 2013 is materially the same as Order XL, Rule 1 of the Supreme Court Rules, 1966. In P.N. Eswara Iyar v. Registrar, Supreme Court of India, (1980) 4 SCC 680, this Court observed that Order XL, Rule 1 of the Supreme Court Rules, 1966 limits the grounds for review in criminal proceedings to "errors apparent on the face of the record". Review is not rehearing of the appeal all over again and to maintain a review petition, it has to be shown that there has been a miscarriage of justice (See: Suthendraraja v. State, (1999) 9 SCC 323). An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review (See: Kamlesh Verma v. Mayavati, (2013) 8 SCC 320). An applicant cannot be allowed to reargue the appeal in an application for review on the grounds that were urged at the time of hearing of the appeal. Even if the applicant succeeds in establishing that there may be another view possible on the conviction or sentence of the accused that is not a sufficient ground for review. This Court shall exercise its jurisdiction to review only when a glaring omission or patent mistake has crept in the earlier decision due to judicial fallibility. There has to be an error apparent on the face of the record leading to miscarriage of justice (See: Vikram Singh v. State of Punjab, (2017) 8 SCC 518). Justice Mohan M. Shantanagoudar in Sudam v. State of Maharashtra, (2019) 9 SCC 388 held that review petitioners cannot seek re-appreciation of the evidence on record while hearing review petitions.

(3.) Keeping in view the aforementioned principles laid down by this Court, we refer to the facts that are necessary for adjudication of the present Review Petition. The prosecution case is that there was a dispute relating to property between the Review Petitioners and their brother, Haneef Khan. At 8.30 PM on 06.06.2007, the Petitioners, along with others, assaulted Haneef Khan, who was offering namaz in the mosque of village Makandu, with sharp-edged weapons such as sword, tangi, bhujali and spade. Haneef Khan died on the spot. The Petitioners and others, thereafter, attacked Gufran Khan @ Pala and Imran Khan, who were proceeding to the mosque on hearing their father. Gufran Khan and Imran Khan were attacked in front of their house and they died. The Petitioners and others rushed into the house of Haneef Khan and murdered Kasuman Bibi, wife of Haneef Khan and their four sons, namely, Yusuf Khan (physically disabled and aged about 18 years), Maherban Khan (aged about 12 years), Danish Khan (aged about 8 years) and Anish Khan (aged about 5 years). PW-2, Jainub Khatoon, mother of the Petitioners and the deceased-Haneef Khan, and others present were threatened by the Petitioners. PW-1, Gaffar Khan, who reached the village at 6.00 am on the next day, i.e., 07.06.2007, saw the dead bodies of the family and was informed by his wife, PW-2, about the Petitioners and others committing the crime.