LexFAHIM KHAN versus STATE OF BIHAR NOW JHARKHAND
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[2011) 5 S.C.R. 577 FAHIM KHAN v. STATE OF BIHAR NOW JHARKHAND (Criminal Appeal No. 2081 of 2009) APRIL 21, 2011 [HARJIT SINGH BEDI AND CHANDRAMAULI KR. PRASAD, JJ.] PENAL CODE, 1860: s. 302 - Murder - Victim shot dead by three accused in A B c 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. F Dismissing the appeal, the Court 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 thi
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