REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 1318 OF 2005
STATE OF RAJASTHAN Appellant (s)
VERSUS
ISLAM Respondent(s)
JUDGMENT
GANGULY, J.
Heard learned counsel for the parties.
The State of Rajasthan is in appeal before us impugning
the judgment dated 19.2.2003 passed by the High Court whereby
the High Court by its judgment disposed of two appeals, being
Criminal Appeal No. 401 of 1997 and Criminal Appeal No. 380 of
1997. The appeal of the State is in respect of Criminal Appeal
No. 401 of 1997. By the judgment of acquittal rendered by the
High Court in the aforesaid criminal appeal, it inter alia,
confirmed the conviction of the other accused, namely, Rujdar,
Ilias, Muvin, and Manna under Section 323 IPC but modified
their sentence awarded to them by enhancing the fine instead of
imposing imprisonment.
The appeal of the accused Asru, Guncheri, Mohammada,
Kalto, Roshan and Titta was allowed and they were acquitted from
the charges under Sections 148 and 336/149 IPC.
-2-
So far as Islam is concerned, the High Court set aside
his conviction under Section 302 and converted it under Section
304 Part II IPC considering that Islam had already undergone
detention for more than six years. The High Court also imposed
a fine of Rs. 30,000(Rupees Thirty Thousand) on Islam and held
that the same would meet the ends of justice.
Impugning that judgment, when the State filed Special
Leave Petition before this Court, a Bench of this Court, while
granting leave, passed the following order:-
"Delay condoned.
Leave granted to the extent of respondent No.
1-Islam only. As to other respondents the special
leave petition is dismissed.
Issue warrants bailable in an amount of
Rs. 10,000/- only requiring production of accused-
respondent no. 1 before the Trial Court on the dates
to be appointed by it or before this Court as
directed. The bail bonds shall be furnished to the
satisfaction of the Trial Court."
Therefore, the purpose of our examination is confined to
the question whether in passing the order of conversion of
sentence from Section 302 IPC to Section 304 Part II IPC in
respect of respondent no. 1, the High Court exercised its
judicial discretion properly. It may be mentioned in this
-3-
connection that the Trial Court, namely, Court of Additional
District & Sessions Judge, Deeg convicted respondent no. 1 under
section 302 IPC and convicted him to undergo life imprisonment
and a fine of Rs. 1000/-, in default, to further undergo
imprisonment of six months.
Learned counsel for the appellant while taking us though
the judgment of the Trial Court drew our attention to the
evidence of PW 7, PW 9, PW 12, PW 16 ad PW 17 and submitted that
these are all eye-witnesses and there is consistent evidence of
these eye-witnesses about the involvement of respondent no. 1 in
the commission of crime, namely, the murder of Jenu. The
material facts relevant for our consideration are that on the
date of the incident, i.e. 18.3.1988, a meeting was held in the
morning for raising some funds for repairing the mosque and in
the said meeting, an altercation took place between respondent
no. 1 and various other persons of the area who assembled for
the meeting. One of the person assembled there told PW 7 that
he had been treacherous in misappropriating public funds for
repair of the mosque. There was a minor shuffle amongst those
who had assembled there. It is the consistent evidence of the
witnesses mentioned above that after that, respondent no. 1
along with others went home and came back armed with a 'Farsa'.
It is also the consistent evidence that respondent no. 1 hit
Jenu thrice on his head with the Farsa. This evidence has been
consistently repeated by PW 7, PW 9, PW 16 and PW 17. PW 12
said that Islam hit Jenu with Farsa on his head but the number
-4-
of times had not been mentioned by him.
Appreciating the evidence of these witnesses, the Trial
Court reached the finding that respondent no. 1 can be held
guilty under Section 302 IPC and accordingly found him guilty
under Section 302 IPC and sentenced him for life imprisonment.
The High Court has noted the injuries on the deceased. The
injuries on the deceased are as follows:
1. One incised wound 7 cm X 1 cm X bone deep on left frontal
region of head.
2. One incised wound 6.5 cm X 1 cm X bone deep on Rt. Frontal
region of head.
3. One incised wound 8 cm X 1 cm X bone deep on Rt. Parietal
region of head.
PW 3 Dr. Ashok Kumar Gupta in his evidence said the cause
of death of the deceased was in view of the head injury leading
to compression of Brain and Coma. From the nature of the
injuries, it is clear that they were inflicted by a deadly and
sharp weapon and undoubtedly Farsa is one such weapon.
In the context of this evidence, the judgment of the High
Court is rather surprising. The High Court while converting the
conviction of the respondent no. 1 from Section 302 IPC to
Section 304 Part-II in paragraph 12 held that the relations
between respondent no. 1 and the deceased Jenu were cordial and
-5-
only one blow was caused by Islam on the head of the deceased
and that proved fatal. The High Court further said that the
injury inflicted by respondent no. 1 was not pre-meditated and
the respondent no. 1 did not take any undue advantage or nor
acted in a cruel manner and as such, the case of respondent
Islam is covered by Explanation IV appended to Section 300 IPC
and could only be held guilty under Section 304 Part II IPC.
We fail to appreciate the aforesaid reasoning by the High
Court in the context of the consistent evidence discussed above.
It cannot be said that respondent no. 1 had no intention to kill
the deceased. After attending the assembly in which there was a
minor scuffle, respondent no. 1 Islam admittedly went to his
house and came back armed with a Farsa which is a deadly weapon.
Thereafter, he hit the deceased repeatedly on the head, a vital
part of human body, with Farsa and caused very grevious
injuries. It may be true that initially there was no pre-
mediation or intention of the respondent no. 1 but it is well
settled that intention can develop on the spot and in the
instant case, there is some amount of pre-meditation on the part
of respondent no. 1 when he had gone to his house and came back
to the place of occurrence armed with a deadly weapon and in
furtherance of that intention struck the deceased with that
weapon repeatedly and at a vital part of his body. In the
background of this consistent evidence against respondent no. 1,
this Court is of the opinion that the conversion of the
conviction of respondent Islam from Section 302 IPC to Section
-6-
304 Part II IPC cannot be sustained and the entire approach of
the High Court is misconceived, if not perverse.
The finding of the High Court that the act of the
respondent no. 1 is coming under the fourth exception cannot be
sustained at all. It is clear that respondent no. 1 did not
strike the deceased at the first instance, but he struck him
after an interval of time since he left the place of occurrence,
went to his home and then came back armed with a Farsa. In
order to bring a case under exception (4) to section 300 IPC,
the evidence must show that the accused acted without any pre-
mediation and in a heat of passion and without having taken
undue advantage and he had not acted in a cruel or unusual
manner. Every one of these circumstances is required to be
proved to attract exception (4) to section 300 IPC and it is not
sufficient to prove only some of them.
In the facts of this case, none of above ingredients have
been proved from the evidence to bring the case under exception
(4) to Section 300 IPC. The High Court's finding to the
contrary is totally against the evidence on record.
The learned counsel for respondent no. 1 has urged that
this Court should not interfere in exercise of its jurisdiction
under Article 136 of the Constitution when an order of acquittal
was granted by the High Court and respondent no. 1 had suffered
imprisonment for 6 years. There is no such absolute proposition
-7-
in law as has been said to be advanced by the learned counsel
for respondent no. 1. When this Court exercises its
jurisdiction under Article 136, it definitely exercises a
discretionary jurisdiction but such discretionary jurisdiction
has to be exercised in order to ensure that there is no
miscarriage of justice. If the consideration by the High Court
is misconceived and perverse as indicated above, there is
nothing in law which prevents this Court from exercising its
jurisdiction under Article 136 against an order of acquittal
when such acquittal cannot be sustained at all, in view of the
evidence of record.
The golden thread which runs through the administration
of justice in criminal cases is that if two views are possible,
one pointing to the guilt of the accused and the other to the
innocence, the view which is favourable to the accused should be
adopted. The paramount consideration of the court is to ensure
that miscarriage of justice is prevented. A miscarriage of
justice which may arise from acquittal of the guilty is no less
than from a conviction of an innocent.
The principle to be followed by appellate court
considering an appeal against an order of acquittal is to
interfere only when there are compelling and substantial reasons
to do so.
-8-
Thus, in such cases, this Court would usually not
interfere unless
a. The finding is vitiated by some glaring infirmity in the
appraisal of evidence. (State of U.P. Vs. Sahai, AIR 1981
SC 1442 at paras 19-21)
b. The finding is perverse. (State of MP Vs. Bachhudas,
(2007) 9 SCC 135 at para 10 and State of Punjab Vs. Parveen
Kumar (2005) 9 SCC 769 at para 9)
c. The order suffers from substantial errors of law and
fact (Rajesh Kumar Vs. Dharamvir 1997(4) SCC 496 at para 5)
d. The order is based on misconception of law or erroneous
appreciation of evidence (State of UP Vs. Abdul 1997(10)
SCC 135; State of UP Vs. Premi 2003(9) SCC 12 at para 15)
e. High Court has adopted an erroneous approach resulting
in miscarriage of justice (State of TN Vs. Suresh 1998(2)
SCC 372 at paras 31 and 32; State of MP Vs. Paltan Mallah
2005(3) SCC 169 at para 8)
f. Acquittal is based on irrelevant grounds (Arunachalam
Vs. Sadhanatham 1979(2) SCC 297 at para 4
g. High Court has completely misdirected itself in
reversing the order of conviction by the Trial Court
(Gaurishanker Sharma Vs. State of UP, AIR 1990 SC 709)
h. The judgment is tainted with serious legal infirmities
(State of Maharashtra Vs. Pimple, AIR 1984 SC 63 at para
75)
-9-
In reversing an acquittal, this Court keeps in mind that
presumption of innocence in favour of the accused is fortified
by an order of acquittal and if the view of the High Court is
reasonable and founded on materials on record, this Court should
not interfere.
However, if this Court is of the opinion that the
acquittal is not based on a reasonable view, then it may review
the entire material and there will be no limitation on this
Court's jurisdiction under Article 136 to come to a just
decision quashing the acquittal (See 1985(4) SCC 476 at para 45;
1996(7) SCC 471 at para 4)
For the reasons aforesaid, this Court cannot approve the
judgment of the High Court insofar as conversion of conviction
in respect of respondent no. 1 from Section 302 to Section 304
Part-II is concerned. This Court approves the judgment and
order of conviction passed by the Trial Court and restores the
same. The bail bonds of respondent no. 1 are discharged. He is
directed to immediately surrender before the Trial Court and
serve out the sentence imposed on him by the Trial Court.
-10-
The appeal of the State is thus allowed.
..........................J.
(ASOK KUMAR GANGULY)
..........................J.
(DEEPAK VERMA)
NEW DELHI
MAY 24, 2011.
