- (1.) The facts leading to this appeal by way of special leave are as under : Fahim Khan-the appellant, herein alongwith two others Chotna @ Chottu @ Karim Khan and Arsad Hussain @ Arsad @ Arsad Kadri Hussain was put on trial for having committed the murder of Sagir Hasan Siddique. The Trial Court by its judgment dated 15th June, 1991 in Sessions Trial No.122 of 1990 acquitted all the accused holding that the prosecution story had not been proved. The State of Bihar challenged this judgment in the High Court in appeal. The appeal was allowed by a Division Bench by its judgment dated 13th April, 2000 and the matter was remitted to the trial court to pass a fresh judgment on the evidence already adduced by the parties after hearing them denovo. The accused, however, approached this court in Criminal Appeal No.661 of 2001. The order of the High Court was set aside on the 12th May, 2001 and the matter was sent back with a direction that the High Court should itself go into the merits of the case and take a decision thereon. Pursuant to the orders of the Supreme Court, the matter was heard and the High Court, has, by the impugned judgment, set aside the acquittal of the appellant herein holding that the Trial Court's judgment was perverse, and sentenced him to undergo imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code. It is relevant, that Karim Khan and Arsad Hussain-accused died during the proceedings before the High Court and as of today we are left with the appellant-Fahim Khan alone.
(2.) The facts of the case are as under : At about 11:30 p.m. on the 10th May, 1989, Sagir Hasan Siddique, deceased, after taking his meal, went to sleep in front of the house of Alamgir (PW-1) on a cot which had been made ready for him. A short time later, he called out to his mother Mst. Habibul Nisa (PW-4) asking for some water. As she came out to hand him a glass of water, she saw the three accused Fahim Khan, Chotna and Arsad Kadri surrounding her son. She questioned them as to why they had come to that place whereupon Fahim Khan-appellant suddenly fired his pistol at the deceased, hitting him on his head and killing him instantaneously. On information received by the police from PW-2 Hanif, a police party reached the place of incident. The statement of PW-4 Habibul Nisa was recorded at the site at 0:10 hours on the 11th May, 1989 whereas the formal FIR was recorded at the police station at 3:00 a.m. The accused were arrested in due course and were brought to trial leading to the events already given above.
(3.) In the course of the hearing of this appeal, Mr. Sushil Kumar, the learned senior counsel for the appellant, has raised primarily four arguments. He has first submitted that the trial court had acquitted the accused and the High Court, therefore, should not have interfered in an appeal against acquittal as the circumstances of the case did not warrant interference. He has also pleaded that the FIR had apparently been lodged after a delay and the proceedings had been interpolated to cover up the fact of delay. It has been highlighted on this aspect that if the inquest report had been recorded after the registration of the FIR in which case the inquest report ought to have borne number of the FIR and as this detail was missing, it indicated that the FIR had not been registered at its purported time. It has finally been pleaded that the story given by PW-4 that she had tried to lift her son was wrong as if that had been so, her clothes would have been blood-stained but there was no evidence to that effect, which cast a doubt on her presence. It has finally been pleaded that the statements of the accused under Section 313 of the Cr.P.C. had been recorded in a very perfunctory manner and for this reason as well the appellant was entitled to acquittal. In support of this plea Mr. Sushil Kumar has relied on Asraf Ali Versus State of Assam, 2008 16 SCC 328 and Ranvir Yadav Versus State of Bihar, 2009 6 SCC 595.;