FAHIM KHANversusSTATE OF BIHAR NOW JHARKHAND

                    [2011) 5 S.C.R. 577


                      FAHIM KHAN                                A
                            v.
          STATE OF BIHAR NOW JHARKHAND
           (Criminal Appeal No. 2081 of 2009)
                      APRIL 21, 2011
                                                                B
   [HARJIT SINGH BEDI AND CHANDRAMAULI KR.
                  PRASAD, JJ.]

    PENAL CODE, 1860:
                                                                c
    s. 302 - Murder - Victim shot dead by three accused in
presence of his mother-Acquittal by trial court:- Two accused
died during pendency of appeal before High Court -
Conviction by High Court of the surviving accused who had
fired the shot- Held: Evidence of the mother of the deceased
                                                                0
has been supported by other witnesses - Her evidence
inspires full confidence - Delay in registration of FIR and
sending the special report, explained - Co[IViction upheld -
Code of Criminal Procedure, 1973 - ss. 157(3) and 313 -
Appeal against acquittal.
                                                                E
    CODE qF CRIMINAL PROCEDURE, 1973:

     s. 313 - Power of trial court to examine accused - Held
: Though statements of accused recorded are extremely
perfunctory, but no prejudice to the accused has been pointed   F
out at any stage even before the Supreme Court - It must,
therefore, be presumed that no prejudice has in fact occurred
- Penal Code, 1860 - s. 302.

     Appeal against acquittal - Murder- Acquittal by trial court
- Conviction by High Court u!s 302 /PC - Held: High Court G
can re-appraise the entire evidence and if it is found that the
judgment of the trial court was perverse or against the
evidence, the High court has to interfere in the matter- Penal
Code, 1860 -s. 302.
                              577                                H
           578      SUPREME COURT REPORTS            [2011] 5 S.C.R.


       A      The appellant-accused along with two others, at
         about 11.30 p.m. on 10.5.1989, went to the place where
         the son of PW-4 was sleeping. PW-4 stated that her son
         after going to bed asked her for a glass of water and when
         she took out a bottle for him she saw the three accused
       B surrounding him. When she questioned them, the
         appellant-accused shot her son on his head killing him
         instantaneously. PW-2 informed the police. The statement
         of PW-4 was recorded by the police at 0:10 hours on 11-
         5-1989 and formal FIR was recorded at the police station
       c at 3.00 a.m. The trial court acquitted the accused. But, on
         appeal by the State, the High Court convicted the
         accused-appellant u/s 302, as the other two accused had
         died pending appeal.

             In the instant appeal filed by the convict, it was
       D contended for the appellant that once the trial court had
         acquitted the accused, the High Court should not have
,· ·     interfered with the acquittal; that there was· delay in
         lodging the FIR as the inquest report did not bear the FIR
         number; that the statement of PW-4 that she tried to lift
       E her son was wrong as there was no evidence that her
         clothes had blood stains; that the statements of the
         accused u/s 313 were recorded in a perfunctory manner.

                 Dismissing the appeal, the Court
       F      HELD: 1. 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
       G 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
       FAHIM KHAN v. STATE OF BIHAR NOW                 579
                 JHARKHAND
Court was to .sit back and not interfere in the matter. [para A
5] [583-G-H; 584-A-B]
                                  .,
     2.1 The plea of delay in the lodging of the FIR, as the
inquest report did not bear the FIR number, cannot be
accepted as it flows from a presumption that the FIR had 8
been lodged at the site. This can never be the position
as an FIR is always recorded in the police station. It has
come in the evidence that PW-4's statement had been
recorded at the site at about _Q:10 hours on 11.5.1989 by
the Sub-Inspector (PW-7). This statement had been
carried to the police station an9 the formal FIR recorded C
at 3:00 a.m. It is significant th~t as per the post mortem
report the dead body had been received in the hospital
at 6:30 a.m. on the 11.5.1989 i.e. within 3 hours of the F.l.R.
with all relevant papers which would include the inquest
papers. It is true that the special report u/s 157 (3) Cr.P.C. 0
was received by the Magistrate after two days but it is told
that in the State of Bihar this is a normal process. [para
6) [584-C-F]

     2.2 The plea that PW-4 was not present at the place E
of occurrence, is equally without meri.t. In her evidence
she 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 and her son-in-law were strained F
and that her son was killed on that account. She also
explained that she had come to !1er daughter's house as
she was to give birth to a child and in that process she
had been present when the incident had happened. She
also identified the three accused in court when G
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. [para 7) [584-F-H; 585-
A-B]
                                                             H
    580       SUPREME COURT REPORTS            [2011] 5 S.C.R.


A      2.3 It is also significant that the statement of PW-4 is
  supported by the evidence of 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. PW-2 stated that as he returned home
B after seeing a film, he saw the dead body of the victim
  lying there and his mother crying on it. He also stated that
  the deceased used to live in the house of his brother-in-
  law and that his mother was living with them. The
  prosecution story is also supported by the evidence of
c PW-7, the Sub-inspector. 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 registration of the FIR.
  Therefore, the prosecution story given by PW-4 inspires
  full confidence notwithstanding the fact that PW-1
0 outside whose house the incident happened, did not
  support the prosecution. [para 7-8] [585-B-E]

      3. It is indeed true that the statements of the accused
  recorded uls 313 Cr.P.C. are extremely perfunctory and
  do not satisfy the requirement of the Section. However,
E 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. Even no
  such ground has been raised in the SLP. In the absence
  of any complaint on this score, it must be assumed that
F the appellant had suffered no prejudice on account of a
  defective 313 statement. [para 9] [585-F-H; 586-A]

       Shobit Chamar & Anr. vs. State of Bihar 1998 (2) SCR
          =
  117 1998 (3) SCC 455; Shivaji Sahebrao Bobade vs. State
G of Maharashtra AIR 1973 SC 2622; and Santosh Kumar
  Singh Versus State through CBI 2010 (13) SCR 901 = 2010
  (9) sec 747- relied on.

       Asraf Ali Versus State of Assam 2008 (16) SCC 328 and
    Ranvir Yadav Versus State of Bihar 2009 (6) SCC 595- cited.
H
       FAHIM KHAN v. STATE OF BIHAR NOW                   581
                 JHARKHAND

                    . Case Law Reference:                        A

    2009 (6) sec 595          cited                para 3

    2008 (16) sec 328         cited                para 3

    1998 ( 2 ) SCR 117        relied on            para 9
                                                                 8
     (AIR 1973 SC 2622)       relied on            para 9

    2010 (13) SCR 901         relied on            para 9

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2081 of 2009.                                                c
    From the Judgment & Order dated 25.06.2009 of the High
Court of Jharkhand at Ranchi in Government Appeal No. 3 of
1992 (R).
                                                                 D
   Sushil Kumar, Feroz Ahmad, R.S. Sharma, Aditya Kumar,
Anmol Thakral, Ranjan Dwivedi for the Appellant.

    Ratan Kumar Chaudhuri, Brahmajeet Mihra, Akshay
Shukla for the Respondent.
                                                                 E
    The Judgment of the Court was delivered by

    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      F
 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     G
 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    H
    582       SUPREME COURT REPORTS                 [2011] 5 S.C.R.


A 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.
B 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
c 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 :
D
       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
E 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
F 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
G 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.

H         3. In the course of the hearing of this appeal, Mr. Sushil
       FAHIM KHAN v. STATE OF BIHAR NOW                       583
        JHARKHAND [HARJIT SINGH BEDI, J.]

Kumar, the learned senior counsel for the appellant, has raised       A
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          B
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        c
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
                                                                      0
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            E
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            F
perverse and in this situation interference was not only called
for but was intact imperative.

       5. We have heard learned counsel for the parties and gone
through the record. It is true that the High Court's interference     G
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    H
   584      SUPREME COURT REPORTS                  [2011] 5 S.C.R.


A 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
B 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
C 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
D 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
E F.l.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
F 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
G 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
H account. She also explained that she had come to her
        FAHIM KHAN v. STATE OF BIHAR NOW                       585
         JHARKHAND [HARJIT SINGH BEDI, J.]
daughter's house as she was to give birth to a child and in that       A
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         s
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        c
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
                                                                       0
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       E
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                F
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           G
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
                                                                       H
    . 586    SUPREME COURT REPORTS                  [2011] 5 S.C.R.


A 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
B the earliest [see Shobit Chamar & Anr. Versus State of Bihar
  (1998 (3) sec 455) l 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
c through CBI (2010 (9) sec 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.
D
     R.P.                                       Appeal dismissed.