# STATE OF RAJASTHAN TH. SECY.HOME DEPT v. ABDUL MANNAN & ANR

- **Citation:** [2011] 7 S.C.R. 1099
- **Court:** Supreme Court of India
- **Decided:** 2011-07-07
- **Case number:** Criminal Appeal No. 29 of 2008
- **Bench:** Dr. B.S. Chauhan, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-rajasthan-th-secy-home-dept-v-abdul-mannan-anr-27771
- **Pages:** 30

## Headnote

Penal Code, 1860:
A
B
ss. 3021149, 148, 3241149 and 449 - Communal violence c
- Prosecution case that out of the mob of 50 to 60 persons,
8 to 10 persons armed with weapons forcibly entered the
house of complainant and inflicted injuries to two victims and
the Complainant - Victims succumbed to their injuries in the
hospital - Three eye-witnesses to the incident - Complainant,
0
an injured witness - Trial court convicted and sentenced
accused 'AM', ~·and 'AZ' under Sections 3021149, 148, 3241
149 and 449 -' However, the High Court acquitted the
accused - On appeal held: There was establishment of a
complete chain of everits and clear identification of the
E
persons assailing the deceased -
Medical evidence
corroborates the ocular evidence - Cumulative effect of the
ocular evidence and documentary evidence shows that the
prosecution has been able to establish its case beyond
reasonable doubt - Some discrepancies or some variation
"in minor details of the incident are immaterial -
It is
F
established that more than five person constituted an unlawful
assembly and in furtherance to their common object and
intent, assaulted and caused injuries to vital parts of the
bodies of the deceased, ultimately resulting in their death -
High Court did not appropriately appreciate the material G
witness - Thus, the order of acquittal passed by the High
Court is perverse and is set aside, and that of the trial court
restored.
1099
H
•
1100
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A
s. 149 -
Common Object - Inference of -
When -
Explained.
Code of Criminal Procedure, 1973 - s. 378 - Appeal
against acquittal - Scope of interference by Supreme Court
8 - General principles - Explained - On facts, order of acquittal
cannot be sustained since if is based on some contradiction
in the statements of the witnesses while completely ignoring
the entire case of the prosecution particularly when
prosecution has been able to prove its case beyond
reasonable doubt.
c
According to the prosecution on the fateful day, out
of the mob of 50-60 persons, 8 to 10 persons forcibly
entered the house of complainant. These persons were
armed with knife, pharsi, sword and lathies. They inflicted
D injuries to 'GN', 'HN' and the complainant. 'GN' and 'HN'
were taken to the hospital and they succumbed to the
injuries. PW-5 'KL', PW-7 'BA' and PW-4 'MM' witnessed
the occurrence. FIR was registered. Investigation was
carried out. The prosecution examined seven witnesses
E including three eye-witnesses. The trial court acquitted
'H' and 'M' and other two. However, convicted 'AM', 'A'
and 'AZ.' under Sections 302/149, 148, 324/149 and 449 IPC
and sentenced them accordingly. The High Court
acquitted all the accused. Therefore, the appellant-State
F filed the instant appeals.
Allowing the appeals, the Court
HELD: 1. The instant case is a fit case for interference
in the judgment of acquittal recorded by the High Court.
G The judgment of the· High Court is set aside and that of
the trial court is restored. The finding of guilt and the
quantum of punishment awarded by the trial court is
concurred with. [Para 23] [1128-C]
H
2.1. Against an order of acquittal, an appeal by the
•
STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1101
ABDUL MANNAN & ANR.
State is maintainable to this Court only with the leave of A
the Court. On the contrary, if the judgment of acquittal
passed by the trial court is set aside by the High Court,
and the accused is sentenced to death, or life
imprisonment, or imprisonment of more than 10 years,
then the right of appeal of the accused is treated as an
absolute right subject to the provisions of Articles 134 (1)
(a) and 134 (1) (b) of the Constitution of India and Section
B
379 of the Code of Criminal Procedure, 1973. In light of
this, it is obvious that appeal against acquittal is
considered on slightly different parameters compared to c
an ordinary appeal preferred to this Court. When an
accused is acquitted of a criminal charge, a right vests
in him to be a free c

## Text

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•
[2011] 7 S.C.R. 1099
STATE OF RAJASTHAN TH. SECY.HOME DEPT.
v.
ABDUL MANNAN & ANR.
(Criminal Appeal No. 29 of 2008)
JULY 07, 2011
[DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]
Penal Code, 1860:
A
B
ss. 3021149, 148, 3241149 and 449 - Communal violence c
- Prosecution case that out of the mob of 50 to 60 persons,
8 to 10 persons armed with weapons forcibly entered the
house of complainant and inflicted injuries to two victims and
the Complainant - Victims succumbed to their injuries in the
hospital - Three eye-witnesses to the incident - Complainant,
0
an injured witness - Trial court convicted and sentenced
accused 'AM', ~·and 'AZ' under Sections 3021149, 148, 3241
149 and 449 -' However, the High Court acquitted the
accused - On appeal held: There was establishment of a
complete chain of everits and clear identification of the
E
persons assailing the deceased -
Medical evidence
corroborates the ocular evidence - Cumulative effect of the
ocular evidence and documentary evidence shows that the
prosecution has been able to establish its case beyond
reasonable doubt - Some discrepancies or some variation
"in minor details of the incident are immaterial -
It is
F
established that more than five person constituted an unlawful
assembly and in furtherance to their common object and
intent, assaulted and caused injuries to vital parts of the
bodies of the deceased, ultimately resulting in their death -
High Court did not appropriately appreciate the material G
witness - Thus, the order of acquittal passed by the High
Court is perverse and is set aside, and that of the trial court
restored.
1099
H
•
1100
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A
s. 149 -
Common Object - Inference of -
When -
Explained.
Code of Criminal Procedure, 1973 - s. 378 - Appeal
against acquittal - Scope of interference by Supreme Court
8 - General principles - Explained - On facts, order of acquittal
cannot be sustained since if is based on some contradiction
in the statements of the witnesses while completely ignoring
the entire case of the prosecution particularly when
prosecution has been able to prove its case beyond
reasonable doubt.
c
According to the prosecution on the fateful day, out
of the mob of 50-60 persons, 8 to 10 persons forcibly
entered the house of complainant. These persons were
armed with knife, pharsi, sword and lathies. They inflicted
D injuries to 'GN', 'HN' and the complainant. 'GN' and 'HN'
were taken to the hospital and they succumbed to the
injuries. PW-5 'KL', PW-7 'BA' and PW-4 'MM' witnessed
the occurrence. FIR was registered. Investigation was
carried out. The prosecution examined seven witnesses
E including three eye-witnesses. The trial court acquitted
'H' and 'M' and other two. However, convicted 'AM', 'A'
and 'AZ.' under Sections 302/149, 148, 324/149 and 449 IPC
and sentenced them accordingly. The High Court
acquitted all the accused. Therefore, the appellant-State
F filed the instant appeals.
Allowing the appeals, the Court
HELD: 1. The instant case is a fit case for interference
in the judgment of acquittal recorded by the High Court.
G The judgment of the· High Court is set aside and that of
the trial court is restored. The finding of guilt and the
quantum of punishment awarded by the trial court is
concurred with. [Para 23] [1128-C]
H
2.1. Against an order of acquittal, an appeal by the
•
STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1101
ABDUL MANNAN & ANR.
State is maintainable to this Court only with the leave of A
the Court. On the contrary, if the judgment of acquittal
passed by the trial court is set aside by the High Court,
and the accused is sentenced to death, or life
imprisonment, or imprisonment of more than 10 years,
then the right of appeal of the accused is treated as an
absolute right subject to the provisions of Articles 134 (1)
(a) and 134 (1) (b) of the Constitution of India and Section
B
379 of the Code of Criminal Procedure, 1973. In light of
this, it is obvious that appeal against acquittal is
considered on slightly different parameters compared to c
an ordinary appeal preferred to this Court. When an
accused is acquitted of a criminal charge, a right vests
in him to be a free citizen and this Court is very cautious
in taking away that right. The presumption of innocence
of the accused is further strengthened by the fact of D
acquittal of the accused under our criminal jurisprudence.
The courts have held that if two views are possible on
the evidence adduced in the case, then the one
favourable to the accused, may be adopted by the Court.
However, this principle must be applied keeping in view
E
the facts and circumstances of a case and the thumb rule
is whether the prosecution has proved its case beyond
reasonable doubt. If the prosecution has succeeded in
discharging its onus, and the error in appreciation of
evidence is apparent on the face of the record then the
Court can interfere in the judgment of acquittal to ensure
that the ends of justice are met. This is the linchpin around
which the administration of criminal justice revolves. It is
F
a settled principle of criminal jurisprudence that the
burden of proof lies on the prosecution and it has to
prove a charge beyond reasonable doubt. The G
presumption of innocence and the right to fair trail are
twin safeguards available to the accused under our
criminal justice system but once the prosecution has
proved its case and the eviden~e led by the prosecution,
in conjunction with the chain of events as are stated to
H
•
1102
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A have occurred, if, points irresistibly to the conclusion that
accused is guilty then the Court can interfere even with
the judgment of acquittal. The judgment of acquittal might
be based upon misappreciation of evidence or apparent
violation of settled canons of criminal jurisprudence.
B [Para 9) [1114-C-H; 1115-A-C]
2.2. Emphasizing that expressions like 'substantial
and compelling reasons', 'good and sufficient grounds',
'very strong circumstances', 'distorted conclusions',
C 'glaring mistakes', etc are not intended to curtail the
extensive powers of an appellate court in an appeal
against acquittal, the court stated that such
phraseologies are more in the nature of 'flourishes of
language' to emphasize the reluctance of an appellate
court to interfere with the acquittal. Thus, where it is
D possible to take only one view i.e. the prosecution
evidence points to the guilt of the accused and the
judgment is on the face of it perverse, then the Court may
interfere with 13n order of acquittal. [Para 12) [1118-A-C]
E
State of Madhya Pradesh v. Bacchudas (2007) 9 SCC
135: 2007 (1 )SCR 671; State of Kera/a and Anr. v. C. P. Rao
decided by S.C. on16.05.2011; Sanwat Singh and Ors. v.
State ofRajasthan AIR 1961 SC 715; Suman Sood v. State
of Rajasthan (2007) 5 SCC 634: 2007 (6) SCR 499;
F Chandrappa v. State of Karnataka (2007) 4 SCC 415: 2007
(2) SCR 630 - referred to.
3.1. Three eye-witnesses PWs.4, 5 and 7 were found
to be truthful and reliable witnesses by the trial court
whereas those very witnesses were held to be
G untrustworthy witnesses by the High Court. Though the
High Court made a reference to the injuries inflicted upon
the body of the deceased as detailed by PW2-doctor in
his report, there is no discussion in his statement, in
regard to nature of injuries inflicted and the weapon used
H for inflicting such injuries. There is also no discussion in
•
STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1103
ABDUL MANNAN & ANR.
the judgment of the High Court on the comparative
A
evaluation of medical evidence, ocular evidence and the
documentary evidence produced by the prosecution on
record. These are certainly material evidence which have
either been completely ignored, or not appropriately
appreciated by the High Court which renders the
B
judgment of the High Court perverse, and provides
strong reas-ons for this Court to interfere with the
judgment of acquittal. Thus, the order of acquittal can
hardly be sustained where it is based just on some
contradiction in the statements while completely ignoring c
the entire case of the prosecution particularly when the
prosecution has been able to prove its case beyond
reasonable doubt. [Para 13] [1118-D-H; 1119-A-B]
3.2. PW2, who was posted as SMO at medical centre,
had conducted the postmortem on the body of both the
D
'deceased persons. The injuries on the body of the
deceased 'HN' aged 70 years and 'GN' aged 72 years
were recorded by PW2 in his report. [Para 13] [1119-B-C]
3.3. PW 6-lnvestigating Officer ,was the SHO of police
E
Station. According to him, he was busy in maintaining law
and order situation when he received the information that
assailants had entered the house of one 'GN' and had
beaten those inside; and that the latter had been taken
to the hospital. PW7, complainant who is the most
material witness of the prosecution, had made the report
F
to PW6. He is the injured witness. He stated that a mob
of 50-60 persons had come towards that area shouting,
"Maro! Maro!". He went inside his house and closed the
door but in a short while stones were thrown at the
house. Some members of the mob started pushing the G
door and eventually broke the door and PW7 ran away
for safety. 'A', 'M' 'H', and J' came inside and some other
persons who he could not identify started assaulting 'GN'
and 'H' with lathi and pharsi which he witnessed from his
room. According to PW7, the injuries were caused on the
H
•
1104
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A head. He came out of his room and tried to save them,
and in the process, he also suffered injuries. In the
meantime, the police siren blew and upon hearing the
same, these persons ran away. The witness correctly
identified 'AZ' and 'A' in court and stated that these
B persons had caused injuries to the deceased. PW 7
referred to the place of occurrence, preparation of site
plan and medical report by the doctor, he admitted his
signature on all these documents. It appears from the
record that during recording of statement of PW 7, the
c public prosecutor sought permission to declare the
witness hostile. Without declaring him hostile, the Court
had permitted him to be cross-examined by the public
prosecutor. This related to the fact that after hearing part
of Exh. P-9, the witness stated that after identifying the
0 accused, he had stated the name of the accused as 'AM'
to the. police. He then stated that 'AM' was also there,
however he could not identify him definitely. At that stage,
he was declared hostile. Cross examination of this
witness by the public prosecutor as well as by the
defence counsel did not have an adverse impact on the
E main case of the prosecution. In his cross examination,
he said that he had forgotten and therefore, he had
stated that he did not go to the police station for lodging
the report. In fact he wrote the report in his own hand.
According to him, the persons who had assaulted him
F were the same persons who had assaulted his father and
uncle. He also tried to wriggle out of his earlier statement
that he could identify the accused. It needs to be noticed
that his statement, which was recorded in the Court was
completely in consonance with the case of the
G prosecution but when he appeared in the Court for
further cross-examination, he tried to wriggle out of his
main statement. Thus, it is not very difficult to understand
the variation in his statement resulting in the further cross
examination. This entire evidence has to be read along
H with the statement ·of the Investigating Officer.
•
STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1105
ABDUL MANNAN & ANR.
Establishment of· a complete chain of events and clear
A
'
identification of the persons assailing the deceased lead
to the irresistible conclusion that the prosecution has
been able to bring home the guilt of the accused.
Undoubtedly, emphasis on the second half of the
statement of PW7 cannot completely demolish the case
B
of the prosecution which otherwise stands proved by the
statements of PW4, PW5, PW6 and PW2. [Para 16] [1122A-H; 1123-A-E]
3.4. The strain on PW 7 due to the incident cannot C
be ruled out inasmuch as he had lost his father, uncle
and was himself injured; All the basic facts that supported
the case of the prosecution were stated by him when the
case was adjourned for further cross-examination when.
he made a statement at variance with his earlier
statement in Court as well as his statement recorded
D
under Section 161 Cr.P.C.1 Exh. P2 was not a document
written by the police but was written in his own hand and
duly signed by him which he· admitted even in his
statement in court. The statements made by PW 7 fully
aids the case of the prosecution and his statement was
E
recorded on the adjourned :date before the trial court
which is at variance cannot be treated as gospel truth.
In fact the bare reading of the statement clearly shows
this fact. Even if the statement of PW7 is excluded from
consideration, then identity of the accused is still fully
F
established by the statements of PW3, PW4, PWS and
PW6. There is no reason, whatsoever advanced, as to
why PW4 and PWS (neighbours of the deceased) who are
otherwise independent witnesses, and the doctor would
involve the accused falsely. There is no animosity G
between the parties, and in fact according to these
witnesses, they knew the accused particularly 'AZ', 'A'
and 'AM' for quite some time. There is no reason for the
court to hold that PWs 4 and 5 are not trustworthy. Their
statements describe the occurrence in its proper course
H (
1106
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A and are compelling evidence of the same. It is not
appropriate to discard their statements as not inspiring
confidence. The statement of these witnesses must be
appreciated in the proper perspective. It was an incident
involving a mob but only few persons had entered the
B house of the deceased, out of which 7 to 8 persons could
be identified including the three accused as having
inflicted injuries on the body of the deceased and were
duly identified by the prosecution witnesses. The injury
on the head duly finds corroboration from the statement
c of the doctor. It is not a case where the medical evidence
does not support or corroborate the ocular evidence.
Some discrepancies or some variations in minor details
of the incident would not demolish the case of the
prosecution unless it affects the core of the prosecution
0 case. Unless the discrepancy in the statement of witness
or the entire statement of the witness is such that it
erodes the credibility of the witness himself, it may not
be appropriate for the court to completely discard such
evidence. The core of the prosecution case is that when
the mob came, PWs 4 and 5 ran to their houses, locked
E their doors, went to the roof of the houses which were
adjacent to the house of the deceased and watched some
members of the mob, of whom they could identify a few,
assault the deceased. This statement clearly shows the
trustworthiness of these witnesses as they have stated
F that there were some other persons whom they could not
identify. However, both these witnesses and complainant
clearly identified the persons who had entered and
assaulted the deceased persons. Though PW 7 fully
supported the case of the prosecution that he was also
G assaulted by these persons, he did speak in a different
voice the next day before the court. Thus, the cumulative
effect of the ocular evidence and documentary evidence
is that the prosecution has been able to establish its case
beyond reasonable doubt. [Paras 17 and 18] [1123-F-H;
H 1124-A-H; 1125-A-C]
•
•
STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1107
ABDUL MANNAN & ANR.
3.5. In the instant case, out of the mob of 50-60
A
. persons only 7 to 10 persons had broken the door of the
house and some of them had climbed the wall to enter
the house of the deceased. These persons had raised the
slogan 'marol maro!' and thereafter, had inflicted the
injuries upon the body of the deceased. The common
B
intention could even develop at the spur of the moment
when the three accused, as duly identified, were actively
inflicting injuries on the body of the deceased. They,
therefore, not only caused injuries to the vital body parts
of the deceased, including head injury, but kept on c
inflicting injuries even after the deceased had fallen to the
ground. The efforts of the complainant to save them were
in vain and he himself suffered certain injuries. Thus, it
has been established that more than five persons
constituted an unlawful assembly and in furtherance to
D
their common object and intent, assaulted and caused
injuries to vita.I parts of the bodies of the deceased,
ultimately resulting in their death. Therefore, there is no
merit in the contention of the accused that there was no
common object to commit murder and the trial court
applied the law correctly. [Para 20] [1127-A-E]
E.
Shiva/ingappa Kallayanappa v. State of Kamataka (1994) ·
Supp 3 SCC 235 - distinguished.
State of U.P. v. Mohd. lkram and Ors. decided by S.C.
F
on 13th June, 2011 - referred to.
3.6. Section 149 consists of two parts; the first deals
with the commission of an offence by any member of an
unlawful assembly in prosecution of the common object
of that assembly; the second part deals with commission
G
of an offence by any member of an unlawful assembly in
a situation where other members of that assembly know
the likelihood of the offence being committed in
prosecution of that object. In either case, every member
H
1108
SUPREME COURT REPORTS
[2011] 7 S.C.R.
A of that assembly is guilty of the same offence, which
other members have committed in prosecution of the
common object. The final point is the common object. In
the instant case, accused have inflicted the injuries after
raising slogan and have commonly participated in
B committing offence which resulted in the death of the
deceased. [Paras 21 and 22) [1127-F-H; 1128-A-B]
Lokeman Shah v. State of WB. (2001) 5 SCC 235: 2001
(2) SCR 1095 - referred to.
c
Case Law Reference:
2007 (1) SCR 671
Referred to.
Para 10
AIR 1961 SC 715
Referred to.
Para 11
D
2007 (6) SCR 499
Referred to.
Para 12
2007 (2) SCR 630
Referred to.
Para 12
(1994) Supp 3 sec 235 Distinguished.
Para 20
2001 (2) SCR 1095
Referred to.
Para 22
E
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 29 of 2008.
From the Judgment & Order dated 15.3.2005 of the High
Court of Rajasthan at Jaipur Bench, Jaipur, in D.S. Crl. Appeal
F No. 573 of 1999.
Jasbir Singh, Malik, V. Sushant, Ram Naresh Yadav, Milind
Kumar for the Appellant.
G
Syed Ahmad Saud, Shuaib Ud Din, Shakil Ahmed Syed,
Ch. Shamsuddin Khan, Rameshwar Prasad Goyal for the
Respondent.
The Judgment of the Court was delivered by
;
•
•
STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1109
ABDUL MANNAN & ANR.
SWATANTER KUMAR J. 1. These appeals are directed
A
against the judgment of the High Court of Rajasthan, Bench at
Jaipur dated 15th March, 2005 in a case of communal
violence. The trial court vide its judgment dated 7th September,
1999 returned a finding that charge against three accused
namely Abdul Mannan, Afzal and Abdul Zabbar under Sections
B
302/149, 148, 324/149 and 449 of the Indian Penal Code (for
short 'IPC') was fully established beyond reasonable doubt and
sentenced them as follows:
(a)
For committing an offence under Section 302/149
IPC, all three accused were awarded rigorous
imprisonment for life along with fine of Rs.5,000/-
each and in default of payment of fine to suffer six
months' simple imprisonment.
(b)
Under Section 148 IPC, all the three accused were
awarded one year's rigorous imprisonment.
(c)
Under Section 324/149 IPC, all the accused were
awarded one year's rigorous imprisonment each
and
(d)
Lastly, under Section 449 IPC, they were awarde9
three years' of rigorous imprisonment each along
with fine of Rs.1,000/- each, in default of payment
of fine, to undergo simple imprisonment for three
c
D
E
months.
F
2. Aggrieved by the judgment of the trial court, all the three
accused preferred an appeal before the High Court, raising
various issues in relation to the appreciation of evidence, false
implications, contradiction in statements of witnesses and that
G
no evidence had been led against them. On these premises,
they prayed for setting aside of the judgment of the trial court
and claimed acquittal. The High Court vide its judgment dated
15th March, 2005, acquitted all the accused and passed the
following order:
H
A
B
c
D
E
F
G
H
1110
SUPREME COURT REPORTS
[2011] 7 S.C.R.
"9. That takes us to the evidence of the eye witnesses
examined at the trial. Coming to the testimony of Mahesh
(PW-4) we notice that in his examination in chief he
deposed that a mob of around 70 persons of muslim (sic)
attacked the house of Govind Narayan, but he could identify
only Mehboob, Hanif and Zabbar. He however, could not
identify Afzal and Mannan. In his cross-examination Mahesh
stated that he did _not narrate the incident to anybody for
5-7 days. He did not go to jail or other place for the purpose
of identification of accused Kanhaiya Lal (PWS) deposed
that mob of 60-70 persons belonging to Muslim community
entered the house of Govind Narayan. He could identify
Afzal, Kadir, Islam, Bada Bhaiya, two brother of Noor
Tractorw«;ila, Zabbar Tractorwala, Mannan, Hanif and
Mehboob. In the cross examination he however stated that
he did not narrat the names of these persons to police.
Satya Narayan (PW-7) in his deposition stated that a mob
of 60 persons attacked the house. Afzal, Motal, Lakhara,
Hanif, Mehboob, Zabbar Ahmaa Tractorwala were the
members of the mob. He could not say as to who inflicted
the injury on his person. This witness was declared hostile
by the prosecution. He could not identify Abdul Mannan in
the court. Having closely scrutinized the evidence of Mahes,
Kanhaiya Lal and Satya Narayan we are of the opinion that
element of consistency is missing from their testimony. A
through and scrupulous examination of the facts and
circumstances of the case leads to an irresistible and
inexplicable conclusion that the prosecution has not
established the charge leveled ·against all the three
accused by producing cogent, reliable and trustworthy
evidence. Testimony of Mahesh (PW-4), Kanhaiya Lal
(PWS) and Satya Narayan (PW7) is ambulatory and
vacillating and it is not safe to reply upon. Variations,
infirmities, additions, and embellishments in the evidence
of these witnesses are of such nature that could undermine
the substratum of the prosecution case. The prosecution
could only able to establish that an unruly mob of Muslims
•
~
...
STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1111
ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.]
attacked the house of deceased but could not prove
A
beyond reasonable doubt that the three appellants were
the members of unruly mob and they inflicted injuries. On
examination of testimony of these three witnesses Mahesh
(PW4), Kanhaiya Lal (PW5) and Satya Narayan (PW-7)
from the point of view of trustworthiness we find it untruthful.
B
Learned trial judge in our opinion did not properly
appreciate the prosecution the evidence and committed
illegality in convicting and sentencing the appellants.
1 O. For these reasons we allow the instant appeals and
C
set aside the judgment dated September 7, 1999 of the
learned Special Judge $hri G.C. Sharma, Communal
Riots and Man Singh Murder Case, Jaipur in Sessions
Case No.1/1997. We acquit the appellants Abdul Zabbar,
Afzal and Abdul Mannan of the charges under Sections
148, 302/149, 324/149 and 449 IPC. The appellants Abdul
D
is on bail, he need not surrender and his bail bonds stand
discharged. The appellants Abdul Zabbar and Afzal, who
are in jail, shall be set at liberty forthwith, if not required to
be·detained in any other case."
E
3. State of Rajasthan aggrieved by the said judgment of
acquittal, preferred the present appeal before this Court.
4. Let us briefly examine the case of the prosecution. As
per the submission of the State, this Court should set aside the
judgment of acquittal and punish the accused in accordance
with law.
F
5. Satyanarain Baheti made a report to the S.H.O., Police
Station, Malpura in front of the hospital at Malpura on 9th
December, 1992 to the effect that, at about 11.15 a.m. that
G
morning the complainant had been standing outside his house
in Bahetiyon-ke-Mohalle in Ward No.6 of Kasba Malpura. ·
Hearing the noise of the stampede and uproar, he entered his
house and closed the door. After a while a crowd came from
the side of Hathai and started pelting stones at his house. Two
H
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[2011] 7 S.C.R.
A or three persons came inside the house after breaking the bolt
of the door. Satyanarain ran to stop them but those persons
started beating him. Thereafter, 8-10 persons including Afzal
son of Mota, Mahboob son of Jumma, two brothers of
tractorwala, Syyed Jabbar Ahmad tractorwala, Abdul Manjan
B son of Jabbar, Hanif son of Iqbal and Qadir Islam came inside
by climbing the back wall. These persons were duly armed with
knife, pharsi, sword and lathies. They gave two or three blows
with swords on the head of Govind Narain father of Satyanarain.
The remaining persons also inflicted injuries on the head of
c Govind Narian. Hari Narain, kakaji of Satyanarain, was also
standing there and these persons also inflicted injuries with
sword and pharsi on his head. Govind Narain fell down, even
then these persons did not stop inflicting injuries on his arms
and shoulders with lathies. Besides Kanhaiya Lal Baheti,
Babula! Aggarwal and Mahesh Mukar Kacholiya had also
D witnessed the occurrence. These persons, who had witnessed
the occurrence, along with the complainant, brought Govind
Narain and Hari Narain to hospital at Malpura. At the hospital,
doctor after examining them declared both of them dead.
Resultantly, FIR was registered on 9th December, 1992 at
E about 12.45 p.m. The case was investigated. On completion
of the investigation, the charge-sheet was filed before the court
of competent jurisdiction. The case was committed only with
regard to two accused namely Hanif and Mehboob. Vide its
judgment dated 12th August, 1997, the trial court acquitted both
F the accused persons. The case in relation to other accused was
then committed to the trial court. Two other accused, namely,
Firoze and Anwar were discharged by the court vide judgment
dated 21st March, 1998. Thus, the subject matter of the
judgment of the trial court dated 7th September, 1999 relates
G only to the three accused namely Abdul Zabbar, Afzal and
Abdul Mannan.
6. The prosecution had examined seven witnesses
including three eye-witnesses (namely, PW7 and complainant
H Satyanarain, PW4 Mahesh and PW5 Kanhiyalal) as well as
STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1113
ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.]
PW2 medical examiner Dr. Chandra Prakash, and the
A
investigating officer, PW3 Shri Rajendra Ojha. The incriminating
evidence against the accused was put to .Jhe accused while
recording their statement under Section 313 of the Cr.P.C. The
plea taken by the accused was that these witnesses are
deposing falsely, and have implicated them in commission of
B
the crime at the instance of the police. Abdul Mannan took the
plea of false implication, and claimed that he was in a school
at a distance of 18 km away from the Malpura. Accused Afzal
also took the plea of false implication, and stated that there
were two or three persons by the name of Afzal Lakhara and c
he had not been present at the place of occurrence. Similar
stand was taken by Zabbar.
7. The learned trial court discussed the prosecution
evidence as well as the defence at great length. While holding
the statements of above eye-witnesses trustworthy and finding
D
the witnesses led by the defence as not credible, the court held
as under:
"In the opinion of the court, the evidence of witnesses
Ramnarain and Nathu Lal does not inspire confidence.
E
When this court could not ignore the evidence of witnesses
- Mahesh, Kanhaiyalal and Satyanarain in any manner,
which is the reliable evidence of eye-witnesses to the
occurrence, under such circumstances, the evidence of
witnesses - Ramnarain, Nathu Lal, Satya Narain and
F
Ratan Singh does not inspire confidence of the court that
at the time of occurrence, at the three accused persons
were not present at the place of occurrence,· rather they
were present at the place told by the defence witnesses.
Such type of defence evidence, appears to be absolutely
G
fabricated, because such type of evidence can be
prepared easily."
8. The trial court had specifically recorded the finding that
the prosecution has been able to establish its case that the role
of the accused in inflicting injuries upon the body of the
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[20111] 7 S.C.R.
A deceased persons had fully been established and therefore,
they were liable to be punished in accordance with law.
However, the High Court while upsetting the said finding noticed
that PW4, PW5 and PW? were untruthful witnesses and that
the trial court had not properly appreciated the prosecution
B evidence, and therefore, committed an illegality in convicting
and sentencing the accused.
9. As is evident from the above recorded findings, the
judgment of conviction was converted to a judgment of acquittal
by the High Court. Thus, the first and foremost question that we
C need to consider is, in what circumstances this Court should
interfere with the judgment of acquittal. Against an order of
acquittal, an appeal by the State is maintainable to this Court
only with the leave of the Court. On the contrary, if the judgment
of acquittal passed by the trial court is set aside by the High
D Court, and the accused is sentenced to death, or life
imprisonment, or imprisonment of more than 10 years, then the
right of appeal of the accused is treated as an absolute right
subject to the provisions of Articles 134 91) (a) and 134 (1) (b)
of the Constitution of India and Section 379 of the Code of
E Criminal Procedure, 1973. In light of this, it is obvious that
appeal against acquittal is considered on slightly different
parameters compared to an ordinary appeal preferred to this
Court. When an accused is acquitted of a criminal charge, a
right vests in him to be a free citizen and this Court is very
F cautious in taking away that right. The presumption of innocence
of the accused is further strengthened by the fact of acquittal
of the accused under our criminal jurisprudence. The courts
have held that if two views are possible on the evidence
adduced in the case, then the one favourable to the accused,
G may be adopted by the Court. However, this principle must be
applied keeping in view the facts and circumstances of a case
and the thumb rule is whether the prosecution has proved its
case beyond reasonable doubt. If the prosecution has
succeeded in discharging its onus, and the error in appreciation
H of evidence is apparent on the face of the record then the Court
STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1115
ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.]
can interfere in the judgment of acquittal to ensure that the ends
A
of justice are met. This is the linchpin around which the
administration of criminal justice revolves. It is a settled
principle of criminal jurisprudence that the burden of proof lies
on the prosecution and it has to prove a charge beyond
reasonable doubt. The presumption of innocence and .. the right
B
to fair trail are twin safeguards available to the accused under
our criminal justice system but once the prosecution has. proved
its case and the evidence led by the prosecution, in conjunction
with the chain of events as are stated to have occurred, if, points
irresistibly to the conclusion that accused is guilty then the Court c
can interfere even with the judgment of acquittal. The judgment
of acquittal might be based upon misappreciation of evidence
or apparent violation of settled canqns of criminal
jurisprudence.
· ··
10. We may now refer to some judgments of this Court on
D
this is.sue. In State of Madhya Pradesh v. Bacchudas [(2007)
9 sec 135), the Court was concerned with a case where the/
accused had been found guilty of an offence punishable under
Section 304 (Part II) read with Section 34 IPC by the trial court;
but had been acquitted by the High Court of Madhya Pradesh.
E
The appeal was dismissed by this Court, stating that the
Supreme Court's interference was called for only when there
were substantial and compelling reasons for doing so. After
referring to earlier judgments, this Court held as under:
F
"9.There is no embargo on the appellate court reviewing
the evidence upon which an order of acquittal is based.
Generally, the order of acquittal shall not be interfered with
because the presumption of innocence of the accused is
further strengthened by acquittal. The golden thread which
G
runs through the web of administration of justice in criminal
.cases is that if two views are possible on the evidence.
adduced in the case, one pointing to the guilt of the
accused and the other to his innocence, the view which is
favourable to the accused should be adopted. The
H
A
B
c
D
E
F
G
H
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SUPREME COURT REPORTS
[2011] 7 S.C.R.
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 the conviction of an innocent. In a case where
admissible evidence is ignored, a duty is cast upon the
· appellate court to reappreciate the evidence where the
accused has been acquitted, for the purpose of
ascertaining as to whether any of the accused really
committed any offence or not. (See Bhagwan Singh v.
State of M.P.[(2003) 3 SCC 21) The principle to be
followed by the appellate court considering the appeal
against the judgment of acquittal is to interfere only when
there are compelling and substantial reasons for doing so.
If the impugned judgment is clearly unreasonable and
relevant and convincing materials have been unjustifiably
eliminated in the process, it is a compelling reason for
interference.
These aspects were highlighted by this Court in
Shivaji Sahabrao Bobade v. State of Maharashtra,
Ramesh Babula/ Doshi v. State of Gujarat, Jaswant
Singh v. State of Haryana, Raj Kishore Jha v. State of
Bihar, State of Punjab v. Kamai/ Singh, State of Punjab
v. Pho/a Singh, Suchand Pal v. Phani Pal and Sachchey
Lal Tiwari v. State of U.P.
10. When the conclusions of the High Court in the
background of the evidence on record are tested on the
touchstone of the principles set out above, the inevitable
conclusion is that the High Court's judgment does not suffer
from any infirmity to warrant interference.
11. In a very recent judgment, a Bench of this Court in
Criminal Appeal No. 1098 of 2006 titled State of Kera/a and
Anr. v. C.P. Rao decided on 16.05.2011, discussed the scope
of interference. by this Court in an order of acquittal and while
reiterating the view of a three Judge Bench of this Court in the
STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1117
ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.]
case of Sanwat Singh & Ors. v. State of Rajasthan [AIR 1961
A
SC 715], the Court held as under:
"14. In coming to its conclusion, we are reminded of the
well settled principle that when the court has to exercise
its discretion in an appeal arising against an order of
8
acquittal, the Court must remember that the innocence of
the accused is further re-established by the judgment of
acquittal rendered by the High Court. Against such
decision of the High Court, the scope of interference by
this Court in order of acquittal has been very succinctly laid
C
down by a Three-Judge bench of this Court in the case of
Sanwat Singh and Ors. v. State of Rajasthan [1961 (3)
SCR 120]. At page 129, Justice Subba Rao (as His
Lordship then was) culled out the principles as follows:
The foregoing discussion yields the following results: (1)
D
an appellate court has full power to review the evidence
upon which the order of acquittal is founded; (2) the
principles laid down in Sheo Swarup's case [1934 LR. 61
I.A. 398] afford a correct guide for the appellate court's
approach to a case in disposing of such an appeal; and
E
(3) the different phraseology used in the judgments of this
Court, such as (i) "substantial and compelling reasons", (ii)
"good and sufficiently cogent reasons", and {iii) "strong
reasons" are not intended to curtail the undoubted power
of an appellate court in an appeal against acquittal to
F
review the entire evidence and to come to its own
conclusion; but in doing so it should not only consider every
matter on record having a bearing on the questions of fact
and the reasons given by the court below in support of its
order of acquittal in its arriving at a conclusion on those
G
facts, but should also express those reasons in its
judgment, which lead it to hold that the acquittal was not
justified."
12. Reference can also be usefully made to the judgment
of this Court in the'case of Suman Sood v. State of Rajasthan,
H
1118
SUPREME COURT REPORTS
(2011] 7 S.C.R.
A ((2007) 5 SCC 634] where this Court reiterated with approval
the principles stated by the Court in earlier cases, particularly,
Chandrappa v. State of Karnataka, ((2007) 4 SCC 415].
Emphasizing that expressions like 'substantial and compelling
reasons', 'good and sufficient grounds', 'very strong
B circumstances', 'distorted conclusions', 'glaring mistakes', etc
are not intended to curtail the extensive powers of an appellate
court in an appeal against acquittal, the court stated that such
phraseologies are more in the nature of 'flourishes of language'
to emphasize the reluctance of an appellate court to interfere
c with the acquittal. Thus, where it is possible to take only one
view i.e. the prosecution evidence points to the guilt of the
accused and the judgment is on the face of it perverse, then
the Court may interfere with an order of acquittal.
13. In light of the above stated principles, we revert to the
D facts of the present case. As already noticed, three eye
witnesses PWs.4, 5 and 7 were found to be truthful and reliable
witnesses by the trial court whereas those very witnesses were
held to be untrustworthy witnesses by the High Court. We shall
shortly proceed to discuss the statements of these three
E witnesses in some detail, as it is necessary for us to practically
re-appreciate the entire evidence in view of the serious conflict,
on findings of fact, in the two judgments under consideration in
the present appeal. One must notice another very significant
error in the judgment of the High Court. Though the High Court
F has made a reference to the injuries inflicted upon the body of
the deceased as detailed by Dr. Chandra Prakash (PW2) in
his report, there is no discussion of his statement, in regard to
nature of injuries inflicted and the weapon used for inflicting such
injuries. There is also no discussion in the judgment of the High
G Court on the comparative evaluation of medical evidence,
ocular evidence and the documentary evidence produced by
the prosecution on record. These are certainly material
evidence which have either been completely ignored, or not
appropriately appreciated by the High Court. This renders the
H judgment of the High Court perverse, and provides strong
......
....
•
STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1119
ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.]
reasons for this Court to interfere with the judgment of acquittal.
A
In our considered view, the order of acquittal can hardly be
sustained where it is based just on some contradiction in the
statements of the while completely.ignoring the entire case of
the prosecution particularly when the prosecution has been able
to prove its case beyond reasonable doubt. Dr.