Abdul Mannan vs State Of Assam

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.