THE HIGH COURT OF DELHI will hold examination for direct recruitment against 14 vacancies to Delhi Higher Judicial Service on Sunday, the 06th April,2014-Last Date 06.02.2014 13/11/2013: While renewing the term of the appointment of the existing incumbents the State Government is required to consider their past performance and conduct in the light of the recommendations made by the District Judges and the District Magistrates. Therefore, the High Court could not have issued a Mandamus for renewal of the term of respondent Nos. 1 and 2 and other similarly situated persons and thereby frustrated the provisions of LR Manual and Section 24 Cr.P.C .- SUPREME COURT. 12 Nov. 2013- Registration of FIR by police in cognizable offence is must and action must be taken against officials for not lodging a case on the complaint filed in such offences.- Supreme Court.(PTI) 09/11/2013: Supreme Court stayed Gauhati High Court order that declared CBI as unconstitutional. 06-11-2013 -"while we decline to hold and declare that the DSPE Act, 1946, is not a valid piece of legislation, we do hold that the CBI is neither an organ nor a part of the DSPE and the CBI cannot be treated as a ‘police force’ constituted under the DSPE Act, 1946"-GUWAHATI HIGH COURT
SUPREME COURT OF INDIA JUDGEMENTS


Print Judgement
 
Judgement:
                  
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. 24/05/2011.