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
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
