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REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  612/2007

HAKEEM KHAN & ORS.                            APPELLANT(S)                           VERSUS STATE OF M.P.                          RESPONDENT(S)

WITH CRIMINAL APPEAL NO.  788/2008

J U D G M E N T ROHINTON FALI NARIMAN, J.

The incident which occurred in the present case took place in the dark on 30th January, 1990. 30 January is a dark day in world history. Charles I of England lost both his crown and his head on this day in 1649. Hitler came to power on  this  day  in  1933.  And  the  Father  of  our  Nation  was assassinated  on  this  day  in  1948.  The  backdrop  of  this incident occurred when one Ajij Khan and Shabbir Khan, had contested a Panchayat election. Shabbir Khan was elected as Sarpanch  resulting  in  bad  blood  between  the  complainant party  and  the  accused/appellants.  On  the  date  of  the incident, one Chhote Khan lodged an FIR of the said incident in which he stated that one Sayeed Khan had told him that when he was coming from village Shyampur to Mukhtyar Nagar, Hafiz Khan, Jafrudeen and three to four other persons came and questioned him as to why he had raised a shoe on the aforesaid Shabbir Khan, who was the Sarpanch in the town of Sehore. Chhote Khan with three others went to lodge a report to this effect in Shyampur. Further, when they came near the Culvert of Ganda Nala at about 06:30 p.m. to 07:00 p.m. then

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on  the  way  to  the  Culvert  eight  persons,  namely,  Hafeez Khan, Rafiq Khan,  Hakim Khan, Ayyub Khan, Jafrudeen, Israil Khan, Munne Khan, and Salim khan together with 7-8 other unnamed persons armed with Lathis and Farsis started to beat five  of  them.  This  was  done  with  the  common  object  of causing death, because these persons were badly beaten and indeed one, namely, Ismail Khan, succumbed to his injuries. Based on the aforesaid incident an FIR was lodged. It needs to be noted at this juncture that seventeen persons were ultimately arrayed as accused in the case.

After  examining  the  evidence  before  it,  the  trial court,  being  the  order  of  the  IInd  Additional  Sessions Judge, Sehore, arrived at the following conclusions:-

1. There  were  six  eye-witnesses  including  the injured eyewitnesses in the case but only one of them could be said to be an independent witness who, however, turned hostile.

2. Two  other  independent  eye-witnesses  were available  but  they  were  not  examined  by  the prosecution.

3. There were injuries on both sides. In fact, apart from the complainant party, the accused party also had three persons who were injured.  Rafeez Khan had injuries which were deep in the skull and a swelling in the middle of the left hand and a swelling on the left leg; and Ismail also had a deep injury in the middle of the skull, and also had a swelling in the right arm, elbow of the right hand, and knee of the right leg; and Munne Khan also had a swelling on the back side of the elbow of the left hand and swelling on the left shoulder.

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The trial court then went on to say that the incident allegedly occurred around 06:30 p.m. to 7:00 p.m. on 30th January, 1990 which was a dark winter day and, therefore, it would have been extremely difficult to identify the 17 persons  who  were  supposedly  the  aggressors  in  the incident.

Apart  from the  three injured  persons, namely  Rafiq Khan, Israil and Munne Khan, the Trial Court stated that the presence of all the others at the scene of the crime was doubtful. The Trial Court also remarked on the enmity caused between the parties and subsequently went into the fact  that  the  Sarpanch,  Shabbir  Khan,  who  was  the lynchpin in this drama, and who was stated to be present by the injured eye-witnesses, was found, in fact, not to be present, and that he attended Court till 5 O’clock and reached Shyampur after 07:15 p.m. i.e. after the incident took place.

This being so, the presence of the very Sarpanch for whom this scuffle took place was stated to be doubtful. The trial court also went on to state that it appears that it was the complainant's party who was the aggressor in  the  incident  and  gave  reasons  for  the  same,  and, accordingly, acquitted all the seventeen persons of the crime.

In appeal, the High Court reversed the finding of the trial court and convicted the entire seventeen accused of murder under Section 302 read with Section 149 of the Indian  Penal  Code,  and  sentenced  them  to  life imprisonment.

We have heard the learned counsel for the parties. Mr. Fakhruddin, learned senior counsel and Mr. R.K. Das, learned  senior  counsel  appearing  for  the  appellants,

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submitted that the High Court has erred in over-turning the acquittal of seventeen persons and, therefore, unless it reached the conclusion that the order of the trial court was perverse, it could not do so. The trial court gave good reasons for acquitting them. The reasoning is at  least  a  possible  view  and  the  High  Court,  in over-turning  the order  of the  trial court,  has fallen into  a  grave  error  and  has,  in  fact,  itself  reached conclusions which were not reasonably possible in law.

Learned  counsel  for  the  respondent,  on  the  other hand, supported the High Court judgment, and stated that the alleged incident was in two parts, and it is clear that there was no scuffle but a pre-meditated attack by the appellants i.e. the accused, three of whom were armed with sickles and the others with lathis. According to the learned counsel, many of the trial court's conclusions are perverse and are not sustainable in the eyes of law. For example, for the trial court to conclude that the accused party was the aggressor was nobody's case, and is a conclusion without any reason. The fact of the matter is that there is one death and several injured persons, who were eye-witnesses, and all that the trial court said about  the  incident  was  that  it  was  tragic,  without properly proceeding along that trajectory to finally come to the logical conclusion to convict the transgressors.

Learned counsel also stated that no right of private defence was pleaded and, that being the case, it is clear that as the injuries on the deceased were grievous and the injuries on the others were also not simple injuries, the  High  Court  was  right  in  convicting  the  seventeen accused. He also went on to argue that the three persons armed with sickles should, in any event, be convicted of culpable homicide not amounting to murder.

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Having heard the learned counsel for the parties, we are of the view that the trial court's judgment is more than just a possible view for arriving at the conclusion of acquittal, and that it would not be safe to convict seventeen  persons accused  of the  crime of  murder i.e. under Section 302 read with Section 149 of the Indian Penal Code. The most important reason of the trial court, as has been stated above, was that, given the time of 06:30 p.m. to 07:00 p.m. of a winter evening, it would be dark, and, therefore, identification of seventeen persons would be extremely difficult. This reason, coupled with the  fact  that  the  only  independent  witness  turned hostile, and two other eye-witnesses who were independent were not examined, would certainly create a large hole in the  prosecution story.  Apart from  this, the  very fact that there were injuries on three of the accused party, two of them being deep injuries in the skull, would lead to  the  conclusion  that  nothing  was  pre-meditated  and there  was,  in  all  probability,  a  scuffle  that  led  to injuries  on both  sides. While  learned counsel  for the respondent may be right in stating that the trial court went overboard in stating that the complainant party was the aggressor, but the trial court's ultimate conclusion leading to an acquittal is certainly a possible view on the facts of this case. This is coupled with the fact that the presence of the kingpin Sarpanch’s presence is itself doubtful in view of the fact that he attended the Court  at  some  distance  and  arrived  by  bus  after  the incident took place.

The High Court has interfered with the trial court's Judgment  on  several  counts.  First  it  states  that according to the complainant Chhote Khan, there was “some dark”, it was not stated that it was completely dark, and this being so, even in poor light all seventeen persons could  have  been  identified  as  they  were  known  to  the

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other  side.  The  High  Court  seems  to  have  reversed acquittal by substituting its view for that of the trial court. The High Court goes on to state that the presence of minor injuries on the persons of the members of the accused parties proves their presence at the incident. This is hardly the way to deal with a finding of the trial court that these unquestioned injuries could only lead to the conclusion that there was a scuffle without pre-meditation. Also, the High Court stated that merely because independent witnesses did not cooperate with the prosecution case, evidence of other eyewitness cannot be discarded.  This  does  not  deal  with  the  trial  court's reasoning  that  the  only  independent  eye-witness  turned hostile  and  two  other  independent  witnesses  were  not examined, leading to the conclusion that the prosecution story, would, therefore, become doubtful.

Above  all,  when  it  came  to  the  presence  of  the Sarpanch,  the  High  Court  stated  “he  must  have  been discharged  by  the  Court  before  5:00  P.M.”  so  that  he could have covered the distance from Shyampur, in half an hour and be at the scene of the incident by 6:00 P.M. This conclusion apart, from being conjectural, is hardly the way to deal with a finding on alibi given  by the trial court. That the Sarpanch must have been discharged by  the  Court  before  5:00  p.m.  is  not  based  on  any evidence. Also, there is no evidence that the distance of Shyampur from the scene of the incident, being 28 Kms, can be traversed within half an hour. The actual evidence in the case shows that the bus would have arrived only between 7:00 p.m. and 7:30 p.m. As stated hereinabove, the incident did not take place at 6:00 p.m., as wrongly stated by the High Court. Even according to the FIR, the incident occurred between 6:30 and 7:00 p.m.

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For  all  these  reasons,  we  are  of  the  considered opinion that the High Court clearly fell in grave error in setting aside the acquittal in the present case. We have  to  remind  ourselves  that  the  law  on  reversal  of acquittals  is  well  settled  and  is  stated  in  many judgments, but one of them needs to be quoted here. In Murugesan Vs. State (2012) 10 SCC this court went into the  meaning  of  different  expressions-  “erroneous”, “wrong”  and  “possible”,  and  has  stated  the  law  as follows:-

“33.The  expressions  “erroneous”,  “wrong”  and “possible” are defined in Oxford English Dictionary in the following terms:

“erroneous.- wrong; incorrect. Wrong.- (1) not correct or true, mistaken.    (2)unjust, dishonest, or immoral.

Possible.-(1) capable of existing, happening, or  being achieved. (2) that may exist or happen, but that is  not certain or probable.

34. It  will be  necessary for  us to  emphasise that  a  possible  view  denotes  an  opinion  which  can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement.  But  such  a  conclusion  of  the  higher court  would  not  take  the  view  rendered  by  the subordinate  court  outside  the  arena  of  a  possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand,  denotes  a  conclusion  which  can  reasonably  be arrived at regardless of the fact whether it is agreed upon  or  not  by  the  higher  court.  The  fundamental distinction between the two situations have to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court.”

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Having regard to the above, the appeals are allowed and the judgment of the High Court is set aside.

We have been informed that Ayub Khan is in jail for the last about 11 years. He shall be released, if not required in any other case, within a period of one week from today.       

 ....................J.

 [ROHINTON FALI NARIMAN]

....................J.      [PRAFULLA C. PANT]

NEW DELHI;     MARCH 22, 2017