Supreme Court of India
HAKEEM KHAN & ORS.versusSTATE OF M.P.
- Citation
- 2017 INSC 254
- Decided
- 22 March 2017
- Disposal
- Appeal(s) allowed
- Bench
- R F NARIMAN
Holding
The trial court's acquittal was a permissible possible view; the High Court's reversal was erroneous, and the convictions were set aside.
Summary
The case arose from a violent clash during a panchayat election in Sehore, Madhya Pradesh, where a group of accused, armed with lathis and fasris, attacked members of the complainant party, resulting in one death and several injuries. The trial court acquitted all seventeen accused, reasoning that the incident occurred in darkness making identification difficult, the sole independent eyewitness turned hostile, two other independent witnesses were not examined, and injuries on both sides indicated a scuffle rather than a pre‑meditated attack, also doubting the presence of the alleged kingpin Sarpanch. The High Court reversed the acquittal, convicting the accused under Section 302 read with Section 149 of the Indian Penal Code and sentencing them to life imprisonment. On appeal, the Supreme Court held that the trial court's view was a permissible "possible" conclusion and that the High Court erred in substituting its own view, thereby setting aside the convictions and restoring the acquittal. The Court emphasized the principles governing appellate interference with acquittals and the need for a firm evidential basis before overturning a lower court's judgment.
Issues considered
- The propriety of the High Court in overturning the trial court's acquittal under Sections 302 and 149 IPC.
- Whether the evidence (identification, hostile witness, unexamined witnesses, injuries) was sufficient to sustain a conviction for murder.
- Whether the incident constituted a pre‑meditated murder or a scuffle without pre‑meditation.
- The standard of review for appellate courts when a lower court's judgment is a "possible" view.
Legislation cited
- Indian Penal Code, 1860s. 149, s. 302, s. 49
Subjects
murderSection 302 IPCSection 149 IPCacquittalappellate reviewidentificationhostile witnessscufflepremeditationevidence
Judgment
[2017] 2 S.C.R. 735
HAKEEM KHAN & ORS. A
v.
STATE OF M.P.
(Criminal Appeal No. 612 of2007)
MARCH 22, 2017 B
[R. F. NARIMAN AND PRAFULLA C. PANT, JJ.]
Penal Code, 1860 - s.302 rlw s.49 - Prosecution case was
that there was dispute between the complainant party and accused
party due to panchayat elections - On fatefal day, accused persons
armed with lathis and farsis intercepted complainant party and
c
attacked them resulting in death of one person - Trial court acquitted
the accused persons on the ground that there were injuries on both
the sides; that there were six eye-witnesses including injured eye-
witness but only one of them was an independent witness who
however turned hostile; and that two other independent eye D
witnesses were available but were not examined - High Court,
however, reversed the order of acquittal - On appeal, held: Presence
of the kingpin 'sarpanch at the spot was itself doubtful in view of
the fact that he attended the Court at some distance and arrived by
bus after the inciden't took place - The findings of High Court that
E
the unquestioned injuries could only lead to the conclusion that
there was a scujjle without pre-meditation and the minor injuries
on members of the accused party proved their presence at the
incident, not sustainable - Also, High Court erred in discarding
trial court's reasoning thatthe only independent eye-witness turned
hostile and two other independent witnesses were not examined, F
leading to the conclusion that the prosecution story became doubtful
- Interference with the order of High Court called for - Conviction
set aside.
Allowing the appeals, the Court
HELD:l. The trial court's judgment is more than just a G
possible view for arriving at the conclusion of acquittal, and that
it would not he 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
H
735
736 SUPREME COURT REPORTS [20 I 7] 2 S.C.R.
A court, was that, given the time of 06:30 p.m. to 07:00 p.m. of a
winter evening,_it would he dark, and, therefore, identification of
seventeen persons would be extremely diffi.cult. 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
B
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. The respondent may be rigitt in
c 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 is itself doubtful in view of the fact that
he attended the Court at some distance and arrived by bus after
D
the incident took place. [Para 10) [740-D-G)
2. The High Court has interfered with the trial ·court's
Judgment on several counts. First it states that according to the
complainant, there was "some dark", It was not stated that i~ was
complelely dark, and this being so, even in poor light all seventeen
E persons could have been identified as they were known to the
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 cin the persons
of the members of the accused parties proves their presence at
F 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
eye-witnesses cannot be discarded. This does not deal with the
G 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
H have been discharged by the Court before 5:00 P.M." so that he
HAKEEM KHAN & ORS. v. STATE OF M.P. 737
could have covered the distance from Shyampur, in half an hour A
and be at the scene of the incident by 6:00 P.M. This conclusion
apart, from being conjectural, is hardly the way to deai 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
B
. 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. The incident did not take place at 6:00 ;i.m., as
wrongly stated by the High Court. Even according to the FIR,
the Incident occurred between 6:30 and 7:00 p.m. The High Court c
clearly fell in grave error in setting aside the acquittal in the
present case. [Paras 11-13] [740-H; 741-A-F]
3. Having regard to the above, the appeals are allowed
and the judgment of the High Court is set aside. [Para 14] [742-F]
CRIMINAL APPELLATE JURISDiCTION: Criminal Appeal D
No. 612 of2007.
From the Judgment and Order dated 29.07.2006 of the High
Court of Madhya Pradesh at Jabalpur in Criminal Appeal No~ 1174 of
1992
WITH E
Cr!. A. No. 788 of2008.
Fakhruddin, R. K. Dash, Sr. Advs., Raj Kishor Choudhary,
Ms. Meenu Sharma, Dr. Nafis A. Siddiqui, Advs. for the Appellants.
Sunny Choudhary, Arjun Garg, Mishra Saurabh, Advs. for the F
Respondent.
The Judgment of the Court was delivered by
R. F. NARIMAN, J. 1. The incident which occurred in the
present case took place in the dark on 30'" January, 1990. 30 January is
a dark day in world history. Charles I of England lost both his crown and G
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 Aj ij Khan and Shabbir
Khan, had contested a Panchayat election. Shabbir Khan was
elected as Sarpanch resulting in bad blood between the complainant H
738 SUPREME COURT REPORTS (2017] 2 S.C.R.
A party and the accused/appellants. On the date of the incid.ent, 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 to•vn of
B 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 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
c 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
,im FIR was lodged. It needs to be noted at this juncture that seventeen
persons were ultimately arrayed as accused in the case.
D
2. After examining the evidence before it, the trial court, being
the order of the llnd Additional Sessions Judge, Sehore, arrived at the
following conclusions:-
!. There were six eye-witnesses including the injured
E 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
F 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
G
a swelling on the back side of the e1bow of the left hand and
swelling on the left shoulder.
3. The trial court then went on to say that the incident allegedly
occurred around 06:30 p.m. to 7:00 p.m. on 30•h January, 1990 which.
was a dark winter day and, therefore, it would have been extremely
H
HAKEEM KHAN & ORS. v. STATE OF M.P. 739
[R. F. NARIMAN, J.]
difficult to identify the 17 persons who were supposedly the aggressors A
in the incident.
4. Apart from the three injured persons, namely Rafiq Khan,.
Jsrail 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 B
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.
c
5. This being so, the presence of the very Sarpanch for whom
this scuffie 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.
D
6. In appeal, the High Court r!!versed 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.
7. We have heard the learned counsel for the parties. Mr. E
Fakhruddin, learned senior counsel and Mr. R.K. Das, learned senior
counsel appearing for the appellants, 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 F
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.
8. Learned counsel for the respondent, on the other hand,
supported the High Court judgment, and stated that the alleged incident G
was in two parts, and it i§r 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 lath is. According to the learned
counsel, many of the trial court's conciusions are perverse and are not
sustainable in the eyes oflaw. For example, for the trial court to conclude
H
740 SUPREME COURT REPORTS [201 7] 2 S.C.R.
A 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 co.nvict the transgressors.
·B
9. 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
c sickles should, in any event, be convicted of culpable homicide not
amounting to murder.
10. Having heard the learned counsel for the parties, we are of
the view that the trial court's judgment is more thanjusta possible view
for arriving atthe conclusion ofacquittal, and that it would not be safe to
D 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 of06:30 p.m. to 07:00 p.m. of a winter evening, it would
be dark, and, therefore, identification of seventeen persons would be
E 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-
F meditated and there was, in all probability, a scuffle that led to injuries on
both sides. While learned counse.l 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
G is coupled with the fact that the presence of the kingpin Sarpanch 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.
11. 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
H
•
HAKEEM KHAN & ORS. v. STATE OF M.P. 741
[R. F. N '\R!:VIAN, J.]
dark, and this being so, even in poor light all seventeen persons could A
have been identified as they were known to the 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
B
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 st1!ted that merely because independent witnesses
did not cooperate with the prosecution case, evidence of other eye-
witnesses cannot be discarded. This does not deal with the trial court's
reasoning thatthe only independent eye-witness turned hostile and two c
other independent witnesses were not examined, leading to the conclusion
that the prosecution story, would, therefore, become doubtful.
12. Above all, when it came tothe 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, D
in half an· hour and be at the scene ofthe 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 i~ no evidence that the· distance of Shyampur from
the scerie of the incident, being 28 Kms, can be traversed within half an E
hour. The actual evidence in the ease 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. • F
13. 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 G
·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: H
742 SUPREME COURT REPORTS [2017] 2 S.C.R.
A "erroneous.- wrong; incorrect.
Wrong.- (1) not correct or true, mistaken.
(2)unjust, dishonest, or immoral.
Possible.-(1) capable of existing, happening, or
B 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
c 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
D
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
iudicial authority perceives to be the correct conclusion. A
possible view, on the other hand, denotes a conclusion which
can reasonably be arrivf!d at regardless of the fact whether
E 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 c'annot be
interdicted and that of the High Court supplanted over and
F
above the view of the trial court. "
14. Having regard to the above, the appeals are allowed and the
judgment of the High Court is set aside.
15. We have been informed thatAyub Khan is in jail for the last
G about 11 years. He shall be released, if not required in any other case,
within a period of one week from today.
Devika Gujral Appeals allowed.
H
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