State Of Rajasthan vs Islam

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.

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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

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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

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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

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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

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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

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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.

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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)

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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.

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The appeal of the State is thus allowed.

..........................J. (ASOK KUMAR GANGULY)

..........................J. (DEEPAK VERMA)

NEW DELHI

MAY 24, 2011.