REPORTABLE

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.  

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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.