REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.946 OF 2002

Abdul Mannan                      ...Appellant(s)

Versus

State of Assam                      ...Respondent(s)

J U D G M E N T

Dalveer Bhandari, J.

This appeal is directed against the judgment of the  

Gauhati High Court in Criminal Appeal No. 248 of 1998 dated  

22nd June, 2001.

Abdul  Mannan,  Abdul  Salam  and  Abdul  Subhan  have  

preferred an appeal against the impugned judgment. The appeal  

of Abdul Salam and Abdul Subhan was dismissed by this Court  

vide  order  dated  13th September,  2002,  as  they  did  not  

surrender.  The present surviving appeal is only on behalf of  

the accused appellant – Abdul Mannan.

The brief facts, which are necessary to dispose of  

the appeal are recapitulated as under:

On 17th February, 1994, one Abdul Kuddus Khan lodged a  

written First Information Report [for short, ‘F.I.R.’] before  

the Chaudhury Bazar Police Out Post stating inter alia that  

on that date at about 2.00 p.m. while his elder brother Abdul

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Hakim was returning home from Masjid, six accused persons  

named  in  the  F.I.R.,  namely,  Subhan,  Abdul  Mannan,  Abdul  

Hanan, Abdul Sukur, Abdul Kurdish and Abdul Salam attacked  

and assaulted him.  On hearing the screams and loud cries for  

the  help  of  Abdul  Hakim,  another  elder  brother,  the  

informant, namely, Abdul Karim and one of his neighbours,  

Abdul Kalam, rushed to the spot and intervened, whereupon  

those  two  persons  were  also  assaulted  and  they  sustained  

injuries.  The injured persons were taken to the hospital and  

Abdul Karim succumbed to injuries after fourteen days.   

The  police  after  usual  investigation  submitted  a  

charge  sheet  against  all  the  six  accused  persons.   The  

learned  Additional  Sessions  Judge,  Nagaon  framed  charges  

under Section 302/323/34 IPC.  The Trial Court examined eight  

witnesses and on conclusion of the trial, the accused were  

acquitted by the Trial Court. Against acquittal, the State of  

Assam preferred an appeal before the High Court.

In the impugned judgment, the High Court carefully  

examined the entire evidence and relevant legal position, as  

settled by this Court in a number of cases.  In the impugned  

judgment, the High Court has clearly observed that the view  

taken by the Trial Court was not a possible or a plausible  

view. The High Court termed the judgment of the Trial Court  

as perverse and wholly untenable.    

In view of the conflicting judgments, we ourselves  

looked into the entire evidence and the relevant documents of

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the case.  There are five eye witnesses.  Ajijur Rahman,  

P.W.1 had known the accused persons, who lived in the same  

neighbourhood.  He  categorically  stated  that  he  saw  the  

appellant and the other accused beating the deceased with  

lathis.  Fearing that the accused might beat him, his sister  

took him away.   He also stated that the deceased was taken  

to Nagaon because the injuries sustained by him were critical  

in nature.

Abdul Kalam, P.W.2 stated that the accused were known  

to  him  because  they  live  in  his  neighbourhood.   He  also  

stated that the appellant and the other accused gave lathi  

blows to the deceased.

Abdul Malik was examined as P.W.3.  He clearly stated  

that Abdul Mannan gave lathi blows to Abdul Karim along with  

the other accused. He asked them not to beat Abdul Karim, but  

they did not listen to him.  The appellant and the other  

accused ran away after causing injuries.

Abdul  Hakim  P.W.4  also  clearly  stated  that  the  

appellant and other accused gave beating to Hafez Kalam and  

him as well with lathis.  They gave lathis blows to Abdul  

Karim.  Abdul Hakim stated that he also received injuries on  

his head and below the left eye.

Abdul  Kuddus  Khan,  P.W.5  also  corroborated  the  

prosecution version and stated that the appellant and others  

had  given  beating  to  his  brothers  Abdul  Hakim  and  Abdul  

Kalam.    He also stated that his other brother Abdul Karim

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came  on  the  spot  from  the  western  direction  and  shouted  

‘don’t beat, don’t beat’ but that had no impact on them.  The  

deceased Abdul Karim fell down on the ground because of the  

injuries.

The learned Additional Sessions Judge, Nagaon, Assam,  

did not carefully marshall the prosecution evidence on record  

and was swayed away by the fact that the injuries were caused  

by ‘sharp edged weapon’ and ultimately, those injuries caused  

by sharp edged weapon were not found by the doctor in his  

evidence.   The  entire  prosecution  evidence  was  discarded  

solely on this ground.   According to the High Court, the  

words ‘sharp edged’ were added subsequently between the two  

lines in the report.  We have checked the original record and  

we tend to concur with the findings of the High Court.   The  

Court must examine the entire case comprehensively.  Even if  

some  inconsistency  or  discrepancy  is  discovered,  then  its  

impact on the total prosecution version must be carefully  

examined.   In  the  instant  case,  how  any  court  can  

legitimately  ignore  the  testimony  of  five  eye  witnesses,  

including two injured eye witnesses, particularly when their  

version is wholly consistent and gets full corroboration from  

the medical evidence?  The statements of all eye witnesses  

including the injured eye witnesses are wholly consistent and  

are fully corroborated with the medical evidence.

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Dr. Pradip Kumar Talukdar, P.W.7 who was posted at  

the Gauhati Medical College Hospital in the Forensic Medicine  

Department, performed the post-mortem examination on Abdul  

Karim and found the following injuries.

“(i) On larynx and trachea, tracheotomy was done.  Old abrasion on the back of the chest - 10 cm away  from  the  root  of  neck  and  5  cms  away  from  the  midline left side of the size 5 cm. x 3 cm.

(ii)  Abrasions over left buttock.

(iii) Old abrasion over right leg.

(iv) Lacerated wound over medical aspect of right  wrist joint above the elbow joint.  The wound is  stitched.

(v)  Lacerated wound over the scalp in the parieto- occipital region on both sides.  Left side wound of  size 6 cm x 2 cm x bone deep.  Right side wound is  of size 5 cm x 1.5 cm x bone deep.  Both the wounds  are stitched.  Injury over the skull.

Depressed communated fracture over both right and  left parieto-occipital region is present.

Membranes of the brain. – Membranes lacerated at  place and sizes vary from 2 x 1.5 cm to 2 cm x 2cm.

Brain.  (i)  Lacerated  injury  over  right  parietal  region of size 4 cm x 4 cm x 2 cm.

(ii) Lacerated injury over left parietal region of  size 4 cm x 2 cm x 1.5 cm.

(iii) Frontal lobe contusion of size 6 cm x 3 cm of  size.”

In  the  opinion  of  Dr.  Talukdar,  the  death  was  a  

result of head injury sustained by the deceased.  According  

to him, all the injuries were ante-mortem in nature caused by

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blunt  force  impact,  homicidal  in  nature.   The  medical  

evidence  corroborates  the  evidence  of  five  eye  witnesses  

including the statements of the injured eye witnesses.  The  

Trial Court gravely erred in ignoring the most important and  

material aspect of the prosecution version.  

In our considered view, in the impugned judgment, the  

High  Court  carefully  marshalled  the  entire  prosecution  

evidence and also considered the relevant judgments of this  

Court, both on the aspect of interference by the High Court  

in cases where there is acquittal by the Trial Court and on  

the aspect of common intention.

It is well settled that in a case where the Trial  

Court has recorded acquittal, the Appellate Court should be  

slow  in  interfering  with  the  judgment  of  acquittal.   On  

evaluation of the evidence, if the two views are possible,  

the Appellate Court should not substitute its own view and  

discard the judgment of the Trial Court.  But, in the instant  

case, the High Court clearly came to the conclusion that the  

entire approach of the Trial Court cannot be sustained both  

on the law and the facts.  According to the High Court, there  

is non-reading and mis-reading of the evidence and the law,  

as it stands, is also not appreciated in proper perspective.  

According to the High Court, the conclusion arrived at by the  

Trial Court can only be termed as perverse because no Court  

acting reasonably and judiciously can ever take such a view.  

In the impugned judgment, the High Court observed that this

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was not a case where two views were possible and the court  

below has taken the one view.   According to the High Court,  

on careful scrutiny of the evidence, no other view point is  

possible.   The High Court was left with no option but to set  

aside the judgment of the Trial Court.  In our view, the High  

Court was fully justified in setting aside the acquittal so  

far as the appellant herein and Abdul Salam and Abdul Subhan  

are concerned.

The  High  Court  has  also  examined  that  this  was  a  

clear case of common intention in committing the crime.  The  

Court observed that common intention can develop during the  

course of an occurrence.    

The High Court placed reliance on  Sheoram Singh v.  

State of U.P. AIR 1972 SC 2555, in which this Court observed  

as under:

“It is undeniable that common intention can  develop during the course of an occurrence but there  has to be cogent material on the basis of which the  court can arrive at that finding and hold an accused  vicariously liable for the act of the other accused  by invoking Section 34 of the Indian Penal Code.”

Reliance was also placed on  Joginder Singh v. State  

of Haryana AIR 1994 SC 461, in which this Court has observed:

“It is one of the settled principles of law  that the common intention must be anterior in time to  the  commission  of  the  crime.   It  is  also  equally  settled law that the intention of the individual has  to be inferred from the overt act or conduct or from  other relevant circumstances. Therefore, the totality  of the circumstances must be taken into consideration  in  order  to  arrive  at  a  conclusion  whether  the  accused  had a common intention to commit the offence

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under  which  they  could  be  convicted.   The  pre- arranged plan may develop on the spot.   In other  words,  during  the  course  of  commission  of  the  offence, all that is necessary in law is the said  plan must proceed to act constituting the offence.”

The appellant has been named in the F.I.R.  All the  

eye  witnesses  including  the  injured  eye  witnesses  have  

categorically  named  the  appellant  and  attributed  specific  

role to him.  In this view of the matter, the Trial Court was  

not  justified  in  acquitting  the  accused  when  there  was  

overwhelming  evidence  against  the  appellant  and  other  

accused.    It was not a case that the view taken by the  

Trial  Court  was  a  plausible  or  a  possible  view.     The  

judgment of the Trial Court was wholly unsustainable.  The  

High Court in the impugned judgment was justified in setting  

aside the judgment of the Trial Court.

On  close  scrutiny  and  examination  of  the  impugned  

judgment, we are clearly of the view that, in the impugned  

judgment, the High Court has taken into consideration all  

relevant factors in dealing with the appeal from the order of  

acquittal.   The  impugned  order  of  the  High  Court  is  

unexceptionable.  

The High Court in the impugned judgment convicted the  

appellant as also the accused Abdul Subhan and Abdul Salam  

under Section 304 Part II I.P.C. and awarded imprisonment for  

a  period  of  four  years  and  to  pay  a  fine  of  Rupees  one  

thousand each; in default, to undergo further imprisonment  

for a period of one month each.  The sentence awarded by the

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High Court is just appropriate in the facts and circumstances  

of the case.

The appeal, being devoid of any merit, is accordingly  

dismissed.   The bail bonds of the appellant, who is on bail,  

are cancelled and he shall surrender to the court.   In case  

the  appellant  does  not  surrender  within  four  weeks,  the  

respondent-State would take all necessary steps to arrest the  

appellant and lodge him in jail to serve out the remaining  

period of sentence.   

...................J.      (Dalveer Bhandari)

...................J.      (K. S. Radhakrishnan)

New Delhi, February 18, 2010.