[ REPORTABLE ]

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2081 OF 2009

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

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.

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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.   

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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  

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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  

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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  

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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  

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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.  

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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  

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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)

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APRIL 21, 2011 NEW DELHI.

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