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Tuesday, March 28, 2017

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.” 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.

                                                        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 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.

      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, 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.

      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 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.


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.”

 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

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