Fahim Khan Vs. State of
Bihar Now Jharkhand
J U D G M E N T
HARJIT SINGH BEDI, J.
1.
The
facts leading to this appeal by way of special leave are as under : Fahim Khan-the
appellant, herein alongwith two others Chotna @ Chottu @ Karim Khan and Arsad
Hussain @ Arsad @ Arsad Kadri Hussain was put on trial for having committed the
murder of Sagir Hasan Siddique. The Trial Court by its judgment dated 15th June,
1991 in Sessions Trial No.122 of 1990 acquitted all the accused holding that the
prosecution story had not been proved. The State of Bihar challenged this judgment
in the High Court in appeal. The appeal was allowed by a Division Bench by its judgment
dated 13th April, 2000 and the matter was remitted to the trial court to pass a
fresh judgment on the evidence already adduced by the parties after hearing them
denovo. The accused, however, approached this court in Criminal Appeal No.661
of 2001. The order of the High Court was set aside on the 12th May, 2001 and
the matter was sent back with a direction that the High Court should itself go
into the merits of the case and take a decision thereon. Pursuant to the orders
of the Supreme Court, the matter was heard and the High Court, has, by the
impugned judgment, set aside the acquittal of the appellant herein holding that
the Trial Court's judgment was perverse, and sentenced him to undergo imprisonment
for life for the offence punishable under Section 302 of the Indian Penal Code.
It is relevant, that Karim Khan and Arsad Hussain-accused died during the proceedings
before the High Court and as of today we are left with the appellant-Fahim Khan
alone.
2.
The
facts of the case are as under : At about 11:30 p.m. on the 10th May, 1989,
Sagir Hasan Siddique, deceased, after taking his meal, went to sleep in front
of the house of Alamgir (PW-1) on a cot which had been made ready for him. A short
time later, he called out to his mother Mst. Habibul Nisa (PW-4) asking for some
water. As she came out to hand him a glass of water, she saw the three accused Fahim
Khan, Chotna and Arsad Kadri surrounding her son. She questioned them as to why
they had come to that place whereupon Fahim Khan-appellant suddenly fired his pistol
at the deceased, hitting him on his head and killing him instantaneously. On
information received by the police from PW-2 Hanif, a police party reached the place
of incident. The statement of PW-4 Habibul Nisa was recorded at the site at
0:10 hours on the 11th May, 1989 whereas the formal FIR was recorded at the police
station at 3:00 a.m. The accused were arrested in due course and were brought
to trial leading to the events already given above.
3.
In
the course of the hearing of this appeal, Mr. Sushil Kumar, the learned senior counsel
for the appellant, has raised primarily four arguments. He has first submitted that
the trial court had acquitted the accused and the High Court, therefore, should
not have interfered in an appeal against acquittal as the circumstances of the case
did not warrant interference. He has also pleaded that the FIR had apparently
been lodged after a delay and the proceedings had been interpolated to cover up
the fact of delay. It has been highlighted on this aspect that if the inquest report
had been recorded after the registration of the FIR in which case the inquest
report ought to have borne number of the FIR and as this detail was missing, it
indicated that the FIR had not been registered at its purported time. It has
finally been pleaded that the story given by PW-4 that she had tried to lift
her son was wrong as if that had been so, her clothes would have been blood-stained
but there was no evidence to that effect, which cast a doubt on her presence. It
has finally been pleaded that the statements of the accused under Section 313
of the Cr.P.C. had been recorded in a very perfunctory manner and for this
reason as well the appellant was entitled to acquittal. In support of this plea
Mr. Sushil Kumar has relied on Asraf Ali Versus State of Assam [2008 (16) SCC
328] and Ranvir Yadav Versus State of Bihar [2009 (6) SCC 595].
4.
The
learned counsel for the State of Bihar (now Jharkhand) has however supported the
judgment of the High Court and has pointed out that the High Court had opined that
the judgment of the trial judge acquitting the accused was perverse and in this
situation interference was not only called for but was infact imperative.
5.
We
have heard learned counsel for the parties and gone through the record. It is true
that the High Court's interference in an appeal against acquittal is somewhat circumscribed
and interference should be made only in a case where the judgment of the trial court
was perverse and not based on the evidence. It is, however, well-settled that the
High Court can re-appraise the entire evidence to test the judgment rendered by
a trial court and if two views are possible, the one taken by the trial court
should not be interfered with. On the contrary if it is found that the judgment
of the trial court was perverse or against the evidence, it would be a travesty
of justice if the High Court was to sit back and not interfere in the matter. We
have gone through the judgment of the High Court and the Sessions Judge in the light
of this broad principle and have accordingly re-examined the evidence in this
background.
6.
The
first argument raised by Mr. Sushil Kumar is with regard to the delay in the lodging
of the FIR, as the inquest report did not bear the FIR number. This argument
however flows from a presumption that the FIR had been lodged at the site. This
can never be the position as a FIR is always recorded in the police station. It
has come in the evidence that the PW-4's statement had been recorded at the site
at about 0:10 hours on the 11th May, 1989 by Sub-Inspector S.N. Das-PW. This
statement had been carried to the police station and the formal FIR recorded at
3:00 a.m. It is significant that as per the post mortem report the dead body
had been received in the hospital at 6:30 a.m. on the 11th May, 1989 i.e.
within 3 hours of the F.I.R. with all relevant papers which would include the
inquest papers. It is true that the special report under Section 157 (3) of the
Cr.P.C. had been received by the Magistrate after two days but we are told that
in the State of Bihar this is a normal process. We, therefore, find no merit in
Sushil Kumar's first argument.
7.
The
second argument with regard to the lack of blood on the clothes of PW-4 leading
to the conclusion that she was not an eye-witness to the incident, is equally
without merit. In her evidence PW-4 has categorically stated that when her son
had called for a glass of water she had taken a bottle out for him and witnessed
the shooting. She also stated that relations between the appellant-Fahim Khan and
her son-in-law Mahfooz Khan were strained and that her son had been killed on
that account. She also explained that she had come to her daughter's house as she
was to give birth to a child and in that process she had been present when the
incident had been happened. She also identified the three accused in court when
questioned. Her evidence also reveals that she had indeed tried to lift her son
after he had been shot but from this assertion it cannot be inferred that her clothes
would have been heavily blood stained. It is significant also that the statement
of PW-4 is supported by the evidence of Hanif Khan-PW-2. It was this witness who
had conveyed the information of the murder to the police station which had brought
the police party to the place of incident. Hanif stated that as he returned
home after seeing a film, he had seen the dead body of Sagir Hasan Siddique lying
there and his mother crying on it. He also stated that the deceased used to
live in the house of Mahfooz Ahmed his brother-in-law and that his mother was
living with them. The prosecution story is also supported by the evidence of PW-7
Sub-inspector S.N. Das. It was this officer who had recorded the statement of
PW-4 at the site and then sent the same to the police station for the
registration of the FIR.
8.
We
are, therefore, of the opinion that the prosecution story given by PW-4 inspires
full confidence notwithstanding the fact that Alamgir-PW-1 outside whose house
the incident happened, did not support the prosecution.
9.
It
is indeed true that the statements of the accused recorded under Section 313 of
the Cr.P.C. are extremely perfunctory and do not satisfy with the requirement
of Section 313 of the Cr.P.C. We however find that that no argument whatsoever in
this regard had been raised at any stage although the matter had travelled up
and down the appellate ladder several times earlier. We should not however be
held to mean that an argument with regard to a defective 313 cannot be raised at
the SLP stage but we have gone through the grounds of SLP in this matter and find
that no ground has been raised even before us in the SLP. In the absence of any
complaint on this score, we must assume that the appellant had suffered no prejudice
on account of a defective 313 statement. The cases cited by Mr. Sushil Kumar,
undoubtedly talk about the importance of a 313 statement and the implications for
the prosecution, should there be some defect. It is, however, equally
well-settled that an objection as to prejudice must be taken at the earliest [see
Shobit Chamar & Anr. Versus State of Bihar (1998 (3) SCC 455) ] and prejudice
must be shown before a trial could be said to be invalidated [see in this connection
Shivaji Sahebrao Bobade Versus State of Maharashtra (AIR 1973 SC 2622) and Santosh
Kumar Singh Versus State through CBI (2010 (9) SCC 747) ]. No prejudice to the accused
has been pointed out even this belated stage. It must therefore be presumed that
no prejudice has in fact occurred.
10.
We
are therefore of the opinion that there is no merit in this appeal. It is
accordingly dismissed.
..............................J.
(HARJIT SINGH BEDI)
..............................J.
(CHANDRAMAULI KR. PRASAD)
APRIL
21, 2011
NEW
DELHI.
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