Fahim Khan vs State Of Bihar Now Jharkhand

FAHIM KHAN ....APPELLANT

VERSUS

STATE OF BIHAR NOW JHARKHAND ...RESPONDENT

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

Crl. Appeal No.2081/2009 2

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.

Crl. Appeal No.2081/2009 3 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.

Crl. Appeal No.2081/2009 4 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

Crl. Appeal No.2081/2009 5

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

Crl. Appeal No.2081/2009 6

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

Crl. Appeal No.2081/2009 7

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

Crl. Appeal No.2081/2009 8

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.

Crl. Appeal No.2081/2009 9 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

Crl. Appeal No.2081/2009 10

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.

11. 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)

Crl. Appeal No.2081/2009 11

APRIL 21, 2011

NEW DELHI.