Jharkhand High Court
State Of Bihar vs Fahim Khan & Ors on 25 June, 2009
Author: Amareshwar Sahay
Bench: Amareshwar Sahay, R.R.Prasad
Government Appeal No. 3 of 1992 (R)
Against the Judgment and order dated 15.06.1991 passed by Shri
Pius Xess, Ist Additional Sessions Judge, Dhanbad in Sessions Trial
No. 122 of 1990
The State of Bihar (Now Jharkhand) ... ... ... APPELLANT
Versus
1. Fahim Khan;
2. Chotna @ Chottu @ Karim Khan (Now Dead);
3. Arsad Hussain @ Arsad @ Arsad Kadri (Now Dead)
... ... RESPONDENTS .
......
For the State : Mr. S.N. Rajgarhia, APP
For the Respondents: Mr. B.M. Tripathy, Sr. Advocate.
Mr. Navin Kumar Jaiswal, Advocate.
For the Informant Mr. V. Shivnath, Sr. Advocate.
......
PRESENT
The Hon'ble Mr. Justice Amareshwar Sahay
The Hon'ble Mr. Justice R.R.Prasad
JUDGMENT
C.A.V. On 22/05/2009 PRONOUNCED ON 25/06/2009
Amareshwar Sahay, J. In view of the Judgment/Order of the Supreme Court
dated 12.05.2001 in Criminal Appeal No. 661/2001, this Government
Appeal has been heard afresh by this Court and the same is being
finally disposed of by this Judgment. The Judgment/ Order of the
Supreme Court reads as under:-
"Leave granted.
We have heard Mr. R.K. Jain, learned senior
counsel appearing for the appellants and Mr. Kumar
Rajesh Singh, learned counsel appearing for the State
of Bihar. Our attention is drawn to the direction of the
High Court in paragraph 14 of the Judgment which
reads as under:-
"In the result, this appeal is allowed
and the judgment impugned is set
aside and the matter is remitted back
to the learned trial court to pass a
Government Appeal No. 3 of 1992 (R)
[ 2]
fresh judgment on the evidence
already adduced by the parties after
hearing them in accordance with
law."
Mr. R.K. Jain submits that the High Court having
discussed the evidence should have made its
independent assessment of the materials on record
and decided the appeal on merits instead of remitting
the matter to the trial court merely for passing a fresh
judgment on the evidence already adduced. Mr. Jain
further submits that in the facts and circumstances the
judgment under challenge should be set aside and the
matter remitted to the High Court for decision on merits.
Learned counsel for the State fairly accepts the
position that the matter should be remitted to the High
Court for disposal on merits in accordance with law.
In view of the agreed position which, in our view,
is fair and proper in the facts and circumstances of the
case, we allow this appeal, set aside the judgment
under challenge and remit the matter to the High Court
for disposal on merits in accordance with law after
giving opportunity of hearing to the parties."
2. The background of the present appeal are that the
Respondent No. 1 Fahim Khan was put on trial for the charge under
Section 302 of the Indian Penal Code for committing the murder by
intentionally and knowingly causing the death of Sagir Hasan
Siddique, whereas the respondent no. 2 Chotna @ Chottu @ Karim
Khan and Respondent No. 3 Arsad Hussain @ Arsad @ Arsad Kadri
(both are now dead) were put on trial for the charges under
Section 302/34 of the Indian Penal Code for causing death of Sagir
Hasan Siddique along with accused (respondent no. 1) Fahim Khan
in furtherance of their common intention.
The Trial Court, by its Judgment dated 15.06.1991, in
Sessions Trial No. 122 of 1990, acquitted the accused/ respondents
from all the charges holding that the prosecution failed to bring
home any of the charges to any of the accused persons as leveled
against them beyond all reasonable doubts.
Government Appeal No. 3 of 1992 (R)
[ 3]
Against the said Judgment of the Trial Court, the State
preferred present Government Appeal, which was registered as
Government Appeal No. 3/1992. The Government Appeal was
heard by a Division Bench of this Court and by Judgment dated
13.04.2000, it was allowed after setting aside the Judgment of acquittal and the matter was remitted back to the learned Trial Court to pass a fresh Judgment on the evidence already adduced by the parties after hearing them in accordance with law.
3. Against the said Judgment of this Court, the accused/ respondents approached the Supreme Court and the Supreme Court, by its order dated 12.05.2001 in Criminal Appeal No. 661 of 2001, which has already been quoted hereinabove, set aside the Judgment passed by this Court dated 13.05.2008 and remitted the matter back to this Court for disposal on merit in accordance with law after giving opportunity of hearing to the parties.
It is pursuant to this Order, both the parties were heard afresh and by this Judgment, the appeal is being disposed of finally.
4. It is relevant to note that the respondent nos. 2 and 3 Chotna @ Chottu @ Karim Khan and Arsad Hussain @ Arsad @ Arsad Kadri have died during the pendency of this Government Appeal.
5. The facts in short are that on 11.05.1989 at 12:10 A.M., Most. Habibul Nisa (P.W.-4) submitted a Fardbayan before the Police alleging therein that in the night of 10.05.1989 at 11:30 P.M. , her son Sagir Hasan Siddique (deceased), after taking his meal, went to sleep in front of the house of Alamgir (P.W.-1) where a cot was made ready for him. At that time, her son (deceased) asked for a glass of water. She went and brought water and when she went near his bed to give him water, at that time she saw that three accused Fahim Khan, Chotna and Arsad Kadri (Respondents) were surrounding her son. She asked the accused persons as to what was happening there, then Fahim Khan suddenly fired from his pistol at her son Sagir Hasan Siddique which hit him on his head and as a Government Appeal No. 3 of 1992 (R) [ 4] result of which, he fell down and succumbed to the injuries. Thereafter, the accused persons fled away. The informant claimed to have identified the assailants in the light of electric bulb which was burning.
The Police took up the investigation and on completion thereof, submitted chargesheet in the case, on the basis of which, cognizance was taken, charges were framed against the accused persona and on their denial, they were put on trial..
6. In order to establish the charges, altogether eight witnesses were examined on behalf of the prosecution apart from some documentary evidence. The learned Trial Court, by his Judgment dated 15.06.1991, acquitted the accused persons from the charges. It is against the said Judgment of acquittal, the present Government Appeal has been filed by the State.
7. Mr. S.N. Rajgarhia, learned APP appearing on behalf of the State submitted that the Trial Court has rejected the evidence of the eye witness P.W.-4 i.e. of the informant on most flimsy grounds. Though she has specifically and categorically stated that in her presence, the accused/respondents surrounded her son at the relevant time and place and thereafter, respondent nos. 2 and 3 caught hold the accused whereas, the respondent no. 1 Fahim Khan shot fire from his pistol which hit the deceased on his head causing his death.
Mr. Rajgarhia further submitted that the Trial Court has rejected the case of the prosecution finding some minor contradictions in the evidence of the witnesses. According to him, the evidence of the informant P.W.-4 and of P.W.-7, the Investigating Officer as well as of the Doctor (P.W.-6), the case of the prosecution has fully been established beyond all reasonable doubts against the respondents and therefore, the Judgment of acquittal passed by the Trial Court is liable to be set aside and the Government Appeal No. 3 of 1992 (R) [ 5] appellant Fahim Khan is liable to be convicted and sentenced for committing the murder of Sagir Hasan Siddique.
8. On the other hand, Mr. B.M. Tripathy, learned Senior counsel appearing on behalf of the respondents, submitted that the prosecution has miserably failed to establish its case beyond all reasonable doubts and therefore, learned Trial Court has rightly acquitted the accused persons. He further submitted that the evidence of the so called eye witness P.W.-4 is unreliable since her presence at the place of occurrence itself was very much doubtful. The prosecution even failed to establish the place of occurrence and therefore, this Government appeal is liable to be dismissed.
9. Learned counsel for the parties have taken us to the whole oral and documentary evidence adduced in the Trial. The whole case hinges on the testimony of the sole eye witness to the occurrence i.e. the informant P.W.-4 who is none else than the mother of the deceased. She has claimed to be an eye witness to the occurrence and she has also identified the accused persons at the time of occurrence as well as in the Court.
10. The learned Trial Court has held that the evidence of the evidence of the prosecution is inconsistent and the testimony of the informant i.e. the sole eye witness is not above Board on which no reliance can be placed. It has further been held by the Trial Court that the presence of the informant - eye witness at the place of occurrence itself was doubtful since the prosecution failed to establish as to where the informant was residing at the time of alleged occurrence, whether in the house of Mahfooz Khan, her son-in-law or in the house of Hanif Khan i.e. the brother-in-law of Mahfooz Khan or in her own house. The learned Trial Court has further held that since no blood stains were found in the clothes of the informant and therefore, the absence of blood stains on the cloth suggested that she could not have been present at the scene of occurrence.
Government Appeal No. 3 of 1992 (R) [ 6] The learned Trial Court has also drawn adverse inference due to none examination of Mahfooz Khan, the son-in- law of the informant.
11. The Supreme Court, in the case of Chandrappa and Others Vs. State of Karnataka reported in (2007) 4 SCC 415, while dealing with the powers of the High Court in the case of appeal against acquittal, has held as follows:-
" The following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge;
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law;
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable views are possible on the basis of evidence on record and one favourable to the Government Appeal No. 3 of 1992 (R) [ 7] accused has been taken by the trial court, it ought not to be disturbed by the appellate court."
12. Keeping in mind the law laid down by the Supreme Court, as also the rival contentions of the parties and the finding of the Trial Court, we have scrutinized the entire evidence led by the prosecution during trial in this case.
13. As already noticed above, there is only one eye witness to the occurrence i.e. the informant P.W.-4 i.e. mother of the deceased Sagir Hasan Siddique. The other evidence which are material to be considered in the case are the evidence of P.W. - 6 i.e. the Doctor who held the Postmortem examination on the dead body of the deceased and of P.W.-7 i.e. the Investigating Officer who conducted investigation in the case and submitted chargesheet.
14. The informant, in her Fardbayan has alleged that in the night at about 11:30 P.M., his son Sagir Hasan Siddique, after taking meal, went to sleep in front of the house of Alamgir where a cot was made ready for him. At that time, he asked her to bring a glass of water. When she came back after bringing water and reached near her son Sagir Hasan Siddique, she saw her son standing and he was surrounded by three accused persons namely Fahim Khan (Respondent No. 1), Chotna @ Chottu @ Karim Khan [Respondent No. 2(Now Dead)] and Arsad Hussain @ Arsad @ Arsad Kadri [Respondent No.3 (Now Dead)]. Seeing this, she asked as to what is the matter. Suddenly Fahim Khan, who was having a Pistol in his hand, shot fire hitting on the head of her son Sagir Hasan Siddique due to which her son fell down and thereafter, all the accused fled away. She tried to lift her son but he died soon thereafter. Blood was coming out profusely from the wound. The blood fell on the ground also. She claimed to have identified the accused persons in the light of the electric bulb which was lighting there.
Government Appeal No. 3 of 1992 (R) [ 8] In her evidence in Court, P.W.-4, the informant stated that at about 11:30 P.M., her son Sagir Hasan Siddique, after taking meal, came out of her house and at that time, he asked for a glass of water which she gave to him. At that time, the three accused persons came there. The two accused namely Chotna @ Chottu @ Karim Khan [Respondent No. 2(Now Dead)] and Arsad Hussain @ Arsad @ Arsad Kadri [Respondent No.3 (Now Dead)] caught hold of her son and therafter, accused Fahim shot a fire on her son and thereafter, fled away. The bullet hit on the head of her son near left ear. She started crying and raising 'Hulla' and when the neighbours assembled there, she narrated the occurrence to them.
15. On a comparison of statements made by the informant
- P.W.-4 in her Fardbayan and the evidence given on oath before the Court, we find that though in Court, she has not narrated the occurrence in details as she has stated in her Fardbayan, but the fact remains that in her evidence as well as in her Fardbayan, she has specifically stated that after she brought water for her son, on being asked by him, she saw the three accused/ respondents present at the place of occurrence and the accused/ appellant Fahim Khan shot fire from his fire arm which hit in the head of the deceased due to which he died. Therefore, the statements in the Fardbayan has fully been corroborated on the material point by the informant in her evidence in Court.
16. Now let us examine the evidence of P.W.-6 - the Doctor who held the postmortem on the dead body of the deceased and P.W.-7 the Investigating Officer of the case.
The Doctor P.W.-6, who held Postmortem Examination on the dead body of the deceased has opined that the death was caused from shot due to fire injuries and the time elapsed since death was 12 + 6 hours. A bullet was also extracted from the head of the deceased and the said bullet was adduced in the evidence by the prosecution. Therefore, the injury found on the head of the Government Appeal No. 3 of 1992 (R) [ 9] deceased fully corroborates the statement of the eye witness (P.W.-
4).
17. The Investigating Officer - P.W.-7 has very specifically stated that when he reached at the place of the occurrence i.e. in front of the house of Alamgir (P.W.-1), he found the dead body of Sagir Hasan Siddique in a pool of blood and by the side of the dead body, Habibul Nisa, the mother of the deceased was found crying. He also found a lot of blood lying on the "Kutcha" portion of the road at the place of occurrence. The Investigating Officer further stated in his evidence that the place of occurrence was a pitch road in front of the house of Alamgir and he found sufficient electric light at the place of occurrence in which any person could have been identified in the night even from some distance. The Investigating Officer has further stated that he found fire arm injuries in the person of the deceased.
18. From a close scrutiny of the evidences of P.Ws. 4, 6 and 7 discussed above, the following facts have been found to have been established by the prosecution.
a. On the date and time of the alleged occurrence, the deceased Sagir Hasan Siddique, after taking his meal, went in front of the house of P.W.-1 Alamgir to sleep where a cot was made ready for him;
b. On being asked by the deceased, his mother i.e. the informant - P.W.- 4 brought water for him and at that time, she found three accused persons were surrounding her son;
c. The accused/respondent Fahim Khan shot fire on the son of the informant which hit him on his head due to which he fell down on the ground which profused bleeding from the head injuries and then the accused fled away.
Government Appeal No. 3 of 1992 (R) [10] d. There was sufficient electric light at the place of occurrence.
e. At the place of occurrence, the Investigating Officer found the dead body of the deceased lying on the road in front of the house of Alamgir in a pool of blood and her mother (P.W.-4) was also there by the side of the dead body and was crying at that time. A lot of blood was found lying on the road.
f. The deceased died due to fire arm injuries caused by the respondent no. 1 Fahim Khan on the head and a bullet was also extracted by the Doctor from the head of the deceased which was produced in the Court.
All the facts enumerated above gives credence to the statement of the eye witness (P.W.-4) and her statement has fully been corroborated and supported by other material evidence on record.
19. The learned Trial Court has rejected the evidence of the sole eye witness P.W.-4 doubting her presence at the place of occurrence on the ground that P.W.-2 - Mohd Hanif stated that the informant used to reside sometime with him, sometimes with Mehfooz - his brother-in-law and sometimes in her house, but on the date and time of occurrence where she was actually residing, has not come in the evidence.
This finding of the learned Trial Court is perverse and against the weight of the evidence on record. The main question to find out was as to whether she was present at the place of occurrence on the date and time of the alleged occurrence and not that as to where she used to reside.
Her presence at the place of occurrence has been corroborated by the Investigating Officer who stated that when he came to the spot, he found P.W.-4 by the side of the dead body of Government Appeal No. 3 of 1992 (R) [11] the deceased and she was crying at that time. Even Mohd. Hanif - P.W.-2 has also stated in his evidence that when he came back at about 11:30 P.M. from Cinema, he found the dead body of the deceased lying on the road and the informant was crying there and she was shouting that Fahim, Arsad and Chotna have killed her son and have fled away.
In any view of the matter, it has also come in the evidence of the Investigating Officer (P.W.-7) that the house of Md. Hanif was situated only 25 Yards away from the place of occurrence and therefore, it cannot be said that the presence of P.W.-4 at the place of occurrence was not possible.
In this view of the matter, there is no doubt in our mind that P.W.-4 - the informant was present at the place of occurrence on the relevant date and time of occurrence and she has witnessed the whole occurrence and she saw the respondent Fahim Khan firing shot on her son which hit his head due to which he died.
We find the evidence to be reliable and trustworthy and we see no reason to reject her specific and direct evidence.
20. The inference of the learned Trial Court that since no blood stains were found on the clothes of P.W.-4 i.e. the sole eye witness and therefore, the presence of P.W.-4 at the place of occurrence was doubtful, is based on conjectures and surmises. From the evidence of P.Ws. - 2, 4 and 7, it is fully established that she was present at the place of occurrence.
21. Non examination of Mehfooz Khan, son-in-law of the informant also does not adversely affect the prosecution case at all since he was not an eye witness to the occurrence and it is nobody's case he was present at the place of occurrence. The learned Trial Court has wrongly drawn adverse inference due to his non examination.
Government Appeal No. 3 of 1992 (R) [12]
22. On the basis of the findings above, we are of the view that reasons assigned by the Trial Court for not relying the evidence of the P.W.-4 is wholly illegal and unwarranted. The Trial Court has viewed the whole case from totally wrong angle and has committed grave error in acquitting the accused/ respondent Fahim Khan from the charge under Section 302 of the Indian Penal Code. The evidence on record establishes beyond all reasonable doubts that the respondent/ accused Fahim Khan intentionally committed the murder of the deceased Sagir Hasan Siddique and thereby he is liable to be held guilty for the offence under Section 302 of the Indian Penal Code.
23. Accordingly, this Government Appeal is allowed. The impugned Judgment of the Trial Court acquitting the accused Fahim Khan for the charge under Section 302 of the Indian Penal Code is hereby set aside. The accused/ respondent Fahim Khan is held guilty for the offence under Section 302 of the Indian Penal /Code and thereby, he is convicted there under and he is sentenced to undergo rigorous imprisonment for life.
The respondent no. 1 Fahim Khan is directed to surrender before the Court below forthwith to serve out the sentence. The Trial Court shall take all necessary steps for the arrest of the respondent no. 1 - Fahim Khan to serve out the sentence.
(Amareshwar Sahay, J) R.R.Prasad, J (R.R.Prasad, J) Jharkhand High Court, Ranchi The 25/06/ 2009 RC/AFR