REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 29 of 2008

STATE OF RAJASTHAN  … Appellant TH. SECY. HOME DEPT.         

Versus

ABDUL MANNAN         … Respondent

WITH

CRIMINAL APPEAL NO. 30 OF 2008

STATE OF RAJASTHAN  … Appellant

      Versus ABDUL ZABBAR & ANR.                 … Respondents

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J U D G M E N T

Swatanter Kumar J.

     These appeals are directed against the judgment of the  

High Court of Rajasthan, Bench at Jaipur dated 15th March,  

2005 in a case of communal violence.  The trial court vide its  

judgment dated 7th September, 1999 returned a finding that  

charge against three accused namely Abdul Mannan, Afzal  

and Abdul Zabbar under Sections 302/149, 148, 324/149  

and 449 of the Indian Penal Code (for short ‘IPC’) was fully  

established beyond reasonable doubt and sentenced them as  

follows:

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a For committing an offence under Section 302/149 IPC,  

all  three  accused  were  awarded  rigorous  

imprisonment  for  life  along with fine  of  Rs.5,000/-  

each and in default of payment of fine to suffer six  

months’ simple imprisonment.

b Under  Section  148  IPC,  all  the  three  accused  were  

awarded one year’s rigorous imprisonment.

c Under  Section  324/149  IPC,  all  the  accused  were  

awarded one year’s rigorous imprisonment each and  

d Lastly, under Section 449 IPC, they were awarded three  

years’  of  rigorous imprisonment each along with fine of  

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Rs.1,000/- each, in default of payment of fine, to undergo  

simple imprisonment for three months.

Aggrieved by the judgment of the trial court, all the three  

accused preferred an appeal  before  the High Court,  raising  

various issues in relation to the appreciation of evidence, false  

implications,  contradiction  in  statements  of  witnesses  and  

that  no  evidence  had  been  led  against  them.   On  these  

premises, they prayed for setting aside of the judgment of the  

trial  court  and claimed acquittal.   The  High Court  vide  its  

judgment dated 15th March, 2005, acquitted all the accused  

and passed the following order:

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“9. That takes us to the evidence of the  eye  witnesses  examined  at  the  trial.  Coming to the testimony of Mahesh (PW- 4)  we notice  that  in his  examination in  chief he deposed that a mob of around 70  persons  of  muslim  (sic)  attacked  the  house of  Govind Narayan,  but  he could  identify only Mehboob, Hanif and Zabbar.  He however, could not identify Afzal and  Mannan.   In  his  cross-examination  Mahesh  stated  that  he  did  not  narrate  

the incident to anybody for 5-7 days.  He  did not go to jail  or  other place for  the  purpose  of  identification  of  accused  Kanhaiya Lal (PW5) deposed that mob of  60-70  persons  belonging  to  Muslim  community entered the house of Govind  Narayan.  He could identify Afzal, Kadir,  Islam, Bada Bhaiya, two brother of Noor  Tractorwala,  Zabbar  Tractorwala,  Mannan,  Hanif  and  Mehboob.   In  the  cross examination he however stated that  

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he  did  not  narrat  the  names  of  these  persons to police.  Satya Narayan (PW-7)  in his deposition stated that a mob of 60  persons attacked the house.  Afzal, Motal,  Lakhara, Hanif, Mehboob, Zabbar Ahmad  Tractorwala  were  the  members  of  the  mob.  He could not say as to who inflicted  the injury  on his  person.   This  witness  was declared hostile by the prosecution.  He could  not  identify  Abdul  Mannan in  the court.  Having closely scrutinized the  

evidence  of  Mahes,  Kanhaiya  Lal  and  Satya Narayan we are of the opinion that  element  of  consistency  is  missing  from  their  testimony.   A  through  and  scrupulous examination of the facts and  circumstances  of  the  case  leads  to  an  irresistible  and  inexplicable  conclusion  that the prosecution has not established  the  charge  leveled  against  all  the  three  accused  by  producing  cogent,  reliable  and trustworthy evidence.  Testimony of  

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Mahesh (PW-4), Kanhaiya Lal (PW5) and  Satya Narayan (PW7) is ambulatory and  vacillating  and  it  is  not  safe  to  reply  upon.   Variations,  infirmities,  additions,  and  embellishments  in  the  evidence  of  these witnesses are of such nature that  could  undermine the  substratum of  the  prosecution case.  The prosecution could  only able to establish that an unruly mob  of  Muslims  attacked  the  house  of  deceased  but  could  not  prove  beyond  

reasonable  doubt  that  the  three  appellants  were  the  members  of  unruly  mob  and  they  inflicted  injuries.   On  examination of  testimony of  these  three  witnesses  Mahesh  (PW4),  Kanhaiya  Lal  (PW5) and Satya Narayan (PW-7) from the  point of view of trustworthiness we find it  untruthful.   Learned  trial  judge  in  our  opinion  did  not  properly  appreciate  the  prosecution the evidence and committed  

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illegality in convicting and sentencing the  appellants.

10. For  these  reasons  we  allow  the  instant  appeals  and  set  aside  the  judgment dated September 7, 1999 of the  learned Special Judge Shri G.C. Sharma,  Communal Riots and Man Singh Murder  Case,  Jaipur  in  Sessions  Case  No.1/1997.   We  acquit  the  appellants  Abdul Zabbar,  Afzal and Abdul Mannan  

of  the  charges  under  Sections  148,  302/149,  324/149  and  449  IPC.   The  appellants Abdul is on bail, he need not  surrender  and  his  bail  bonds  stand  discharged.  The appellants Abdul Zabbar  and Afzal, who are in jail, shall be set at  liberty  forthwith,  if  not  required  to  be  detained in any other case.”

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State  of  Rajasthan  aggrieved  by  the  said  judgment  of  

acquittal, preferred the present appeal before this Court.

Let us briefly examine the case of the prosecution.  As  

per the submission of the State, this Court should set aside  

the  judgment  of  acquittal  and  punish  the  accused  in  

accordance with law.

Satyanarain Baheti made a report to the S.H.O., Police  

Station,  Malpura in  front  of  the  hospital  at  Malpura on 9th  

December, 1992 to the effect that, at about 11.15 a.m. that  

morning the complainant had been standing outside his house  

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in  Bahetiyon-ke-Mohalle  in  Ward  No.6  of  Kasba  Malpura.  

Hearing the noise of the stampede and uproar, he entered his  

house and closed the door.  After a while a crowd came from  

the side of  Hathai  and started pelting stones at  his  house.  

Two or three persons came inside the house after breaking the  

bolt  of  the  door.   Satyanarain  ran  to  stop  them but  those  

persons  started  beating  him.   Thereafter,  8-10  persons  

including  Afzal  son  of  Mota,  Mahboob  son  of  Jumma,  two  

brothers  of  tractorwala,  Syyed  Jabbar  Ahmad  tractorwala,  

Abdul  Manjan son of  Jabbar,  Hanif  son of  Iqbal  and Qadir  

Islam came inside by climbing the back wall.  These persons  

were duly armed with knife,  pharsi, sword and lathies.  They  

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gave two or three blows with swords on the head of Govind  

Narain  father  of  Satyanarain.   The  remaining  persons  also  

inflicted injuries on the head of Govind Narian.  Hari Narain,  

kakaji of  Satyanarain,  was  also  standing  there  and  these  

persons also inflicted injuries with sword and  pharsi on his  

head.  Govind Narain fell down, even then these persons did  

not  stop inflicting  injuries  on his  arms and shoulders  with  

lathies.  Besides Kanhaiya Lal Baheti, Babulal Aggarwal and  

Mahesh Mukar Kacholiya had also witnessed the occurrence.  

These persons, who had witnessed the occurrence, along with  

the complainant, brought Govind Narain and Hari Narain to  

hospital at Malpura.  At the hospital, doctor after examining  

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them  declared  both  of  them  dead.   Resultantly,  FIR  was  

registered on 9th December, 1992 at about 12.45 p.m.  The  

case was investigated.  On completion of the investigation, the  

charge-sheet  was  filed  before  the  court  of  competent  

jurisdiction. The case was committed only with regard to two  

accused namely Hanif and Mehboob.  Vide its judgment dated  

12th August, 1997, the trial court acquitted both the accused  

persons.   The  case  in  relation  to  other  accused  was  then  

committed  to  the  trial  court.   Two  other  accused,  namely,  

Firoze and Anwar were discharged by the court vide judgment  

dated  21st March,  1998.   Thus,  the  subject  matter  of  the  

judgment of the trial court dated 7th September, 1999 relates  

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only  to  the  three  accused  namely  Abdul  Zabbar,  Afzal  and  

Abdul Mannan.

The prosecution had examined seven witnesses including  

three  eye-witnesses  (namely,  PW7  and  complainant  

Satyanarain,  PW4 Mahesh  and  PW5 Kanhiyalal)  as  well  as  

PW2  medical  examiner  Dr.  Chandra  Prakash,  and  the  

investigating  officer,  PW3  Shri  Rajendra  Ojha.   The  

incriminating  evidence  against  the  accused  was  put  to  the  

accused while recording their statement under Section 313 of  

the Cr.P.C.   The plea taken by the accused was that these  

witnesses are deposing falsely, and have implicated them in  

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commission of the crime at the instance of the police.  Abdul  

Mannan took the plea of false implication, and claimed that he  

was in a school at a distance of 18 km away from the Malpura.  

Accused  Afzal  also  took  the  plea  of  false  implication,  and  

stated that there were two or three persons by the name of  

Afzal  Lakhara and he had not been present at the place of  

occurrence. Similar stand was taken by Zabbar.

The  learned  trial  court  discussed  the  prosecution  

evidence as well as the defence at great length. While holding  

the statements of above eye-witnesses trustworthy and finding  

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the witnesses led by the defence as not credible, the court held  

as under:

“In  the  opinion  of  the  court,  the  evidence  of  witnesses  Ramnarain  and  Nathu  Lal  does  not  inspire  confidence.  When  this  court  could  not  ignore  the  evidence  of  witnesses  –  Mahesh,  Kanhaiyalal  and  Satyanarain  in  any  manner, which is the reliable evidence of  

eye-witnesses  to  the  occurrence,  under  such  circumstances,  the  evidence  of  witnesses – Ramnarain, Nathu Lal, Satya  Narain and Ratan Singh does not inspire  confidence of the court that at the time of  occurrence, at the three accused persons  were  not  present  at  the  place  of  occurrence,  rather  they  were  present  at  the place told by the defence witnesses.  Such type of defence evidence, appears to  

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be  absolutely  fabricated,  because  such  type of evidence can be prepared easily.”

The trial court had specifically recorded the finding that  

the prosecution has been able to establish its case that the  

role of the accused in inflicting injuries upon the body of the  

deceased  persons  had  fully  been  established  and  therefore,  

they  were  liable  to  be  punished  in  accordance  with  law.  

However,  the  High  Court  while  upsetting  the  said  finding  

noticed that PW4, PW5 and PW7 were untruthful  witnesses  

and  that  the  trial  court  had  not  properly  appreciated  the  

prosecution evidence, and therefore, committed an illegality in  

convicting and sentencing the accused.   

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As  is  evident  from  the  above  recorded  findings,  the  

judgment  of  conviction  was  converted  to  a  judgment  of  

acquittal  by  the  High  Court.   Thus,  the  first  and  foremost  

question that we need to consider is, in what circumstances  

this  Court  should  interfere  with  the  judgment  of  acquittal.  

Against  an  order  of  acquittal,  an  appeal  by  the  State  is  

maintainable to this Court only with the leave of the Court.  

On the contrary,  if  the judgment of acquittal  passed by the  

trial court is set aside by the High Court, and the accused is  

sentenced to death, or life imprisonment, or imprisonment of  

more than 10 years, then the right of appeal of the accused is  

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treated  as  an  absolute  right  subject  to  the  provisions  of  

Articles 134 91) (a) and 134 (1) (b) of the Constitution of India  

and Section 379 of the Code of Criminal Procedure, 1973.  In  

light  of  this,  it  is  obvious  that  appeal  against  acquittal  is  

considered  on  slightly  different  parameters  compared  to  an  

ordinary appeal preferred to this Court.  When an accused is  

acquitted of a criminal charge, a right vests in him to be a free  

citizen and this  Court  is  very cautious in taking away that  

right.  The presumption of innocence of the accused is further  

strengthened by the fact of acquittal of the accused under our  

criminal jurisprudence.  The courts have held that if two views  

are possible on the evidence adduced in the case, then the one  

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favourable  to  the  accused,  may  be  adopted  by  the  Court.  

However, this principle must be applied keeping in view the  

facts  and  circumstances  of  a  case  and  the  thumb  rule  is  

whether  the  prosecution  has  proved  its  case  beyond  

reasonable  doubt.   If  the  prosecution  has  succeeded  in  

discharging its onus, and the error in appreciation of evidence  

is  apparent  on  the  face  of  the  record  then  the  Court  can  

interfere in the judgment of acquittal to ensure that the ends  

of  justice  are  met.   This  is  the  linchpin  around which  the  

administration  of  criminal  justice  revolves.   It  is  a  settled  

principle of  criminal  jurisprudence that the burden of  proof  

lies on the prosecution and it has to prove a charge beyond  

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reasonable  doubt.   The  presumption  of  innocence  and  the  

right to fair trail are twin safeguards available to the accused  

under our criminal  justice system but once the prosecution  

has proved its case and the evidence led by the prosecution, in  

conjunction with  the  chain  of  events  as  are  stated to  have  

occurred, if, points irresistibly to the conclusion that accused  

is guilty then the Court can interfere even with the judgment  

of acquittal.  The judgment of acquittal might be based upon  

misappreciation  of  evidence  or  apparent  violation  of  settled  

canons of criminal jurisprudence.   

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We may now refer to some judgments of this Court on  

this issue.  In State of Madhya Pradesh  v. Bacchudas [(2007)  

9 SCC 135], the Court was concerned with a case where the  

accused had been found guilty of an offence punishable under  

Section  304  (Part  II)  read  with  Section  34  IPC by  the  trial  

court;  but had been acquitted by the High Court of Madhya  

Pradesh.  The appeal was dismissed by this Court, stating that  

the  Supreme  Court’s  interference  was  called  for  only  when  

there were substantial  and compelling reasons for doing so.  

After referring to earlier judgments, this Court held as under:

“9.There is no embargo on the appellate  court reviewing the evidence upon which  

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an order of acquittal is based. Generally,  the  order  of  acquittal  shall  not  be  interfered with because the presumption  of  innocence  of  the  accused  is  further  strengthened  by  acquittal.  The  golden  thread  which  runs  through  the  web  of  administration  of  justice  in  criminal  cases is that if two views are possible on  the  evidence  adduced  in  the  case,  one  pointing to the guilt of the accused and  the  other  to  his  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 the conviction of an innocent. In a  case  where  admissible  evidence  is  ignored, a duty is cast upon the appellate  court to reappreciate the evidence where  the accused has been acquitted, for the  

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purpose of ascertaining as to whether any  of  the  accused  really  committed  any  offence  or  not.  (See  Bhagwan  Singh v.  State  of  M.P.[(2003)  3  SCC  21] The  principle to be followed by the appellate  court considering the appeal against the  judgment of acquittal is to interfere only  when  there  are  compelling  and  substantial  reasons  for  doing  so.  If  the  impugned  judgment  is  clearly  unreasonable  and  relevant  and  

convincing  materials  have  been  unjustifiably eliminated in the process, it  is a compelling reason for interference.  

These aspects were highlighted by this  Court  in  Shivaji  Sahabrao  Bobade  v.  State  of  Maharashtra,  Ramesh  Babulal  Doshi v. State of Gujarat, Jaswant Singh  v.  State of  Haryana,  Raj  Kishore Jha v.  State of Bihar, State of Punjab v. Karnail  Singh,  State  of  Punjab  v.  Phola  Singh,  

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Suchand Pal v. Phani Pal and Sachchey  Lal Tiwari v. State of U.P.

10.  When  the  conclusions  of  the  High  Court in the background of the evidence  on record are tested on the touchstone of  the  principles  set  out  above,  the  inevitable  conclusion  is  that  the  High  Court's  judgment  does  not  suffer  from  any infirmity to warrant interference.

In  a  very  recent  judgment,  a  Bench  of  this  Court  in  

Criminal Appeal No. 1098 of 2006 titled  State of Kerala and  

Anr. v. C.P. Rao decided on 16.05.2011, discussed the scope of  

interference by this Court in an order of acquittal and while  

reiterating the view of a three Judge Bench of this Court in the  

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case of  Sanwat Singh & Ors. v.  State of Rajasthan [AIR 1961  

SC 715], the Court held as under:

“14. In coming to its conclusion, we are  reminded of the well settled principle that  when  the  court  has  to  exercise  its  discretion in an appeal arising against an  order  of  acquittal,  the  Court  must  remember  that  the  innocence  of  the  

accused is  further re-established by the  judgment  of  acquittal  rendered  by  the  High Court. Against such decision of the  High Court, the scope of interference by  this Court in order of acquittal has been  very  succinctly  laid  down  by  a  Three- Judge bench of this Court in the case of  Sanwat  Singh  and  Ors.  v.  State  of  Rajasthan  [1961  (3)  SCR 120].  At  page  129, Justice Subba Rao (as His Lordship  

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then  was)  culled  out  the  principles  as  follows:

The  foregoing  discussion  yields  the  following  results:  (1)  an  appellate  court  has  full  power  to  review  the  evidence  upon  which  the  order  of  acquittal  is  founded;  (2)  the principles  laid down in  Sheo  Swarup's  case  [1934  L.R.  61  I.A.  398]  afford  a  correct  guide  for  the  appellate  court's  approach  to  a  case  in  

disposing of such an appeal; and (3) the  different  phraseology  used  in  the  judgments  of  this  Court,  such  as  (i)  "substantial and compelling reasons", (ii)  "good  and  sufficiently  cogent  reasons",  and (iii) "strong reasons" are not intended  to  curtail  the  undoubted  power  of  an  appellate  court  in  an  appeal  against  acquittal  to  review  the  entire  evidence  and to come to its own conclusion; but in  doing so it should not only consider every  

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matter on record having a bearing on the  questions of fact and the reasons given by  the court below in support of its order of  acquittal in its arriving at a conclusion on  those facts, but should also express those  reasons in its judgment, which lead it to  hold that the acquittal was not justified.”

Reference can also be usefully made to the judgment of  

this Court in the case of  Suman Sood v. State  of Rajasthan,  

[(2007) 5 SCC 634] where this Court reiterated with approval  

the principles stated by the Court in earlier cases, particularly,  

Chandrappa  v.  State  of  Karnataka, [(2007)  4  SCC  415].  

Emphasizing that expressions like ‘substantial and compelling  

reasons’,  ‘good  and  sufficient  grounds’,  ‘very  strong  

circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc  

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are not intended to curtail the extensive powers of an appellate  

court  in  an  appeal  against  acquittal,  the  court  stated  that  

such phraseologies  are  more  in  the  nature  of  ‘flourishes  of  

language’ to emphasize the reluctance of an appellate court to  

interfere with the acquittal.  Thus, where it is possible to take  

only one view i.e. the prosecution evidence points to the guilt  

of the accused and the judgment is on the face of it perverse,  

then the Court may interfere with an order of acquittal.   

In light of the above stated principles, we revert to the  

facts  of  the  present  case.   As  already  noticed,  three  eye  

witnesses  PWs.4,  5  and  7  were  found  to  be  truthful  and  

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reliable  witnesses  by  the  trial  court  whereas  those  very  

witnesses  were  held  to  be  untrustworthy  witnesses  by  the  

High  Court.   We  shall  shortly  proceed  to  discuss  the  

statements of  these three witnesses in some detail,  as  it  is  

necessary  for  us  to  practically  re-appreciate  the  entire  

evidence in view of the serious conflict, on findings of fact, in  

the two judgments under consideration in the present appeal.  

One must notice another very significant error in the judgment  

of  the  High  Court.   Though  the  High  Court  has  made  a  

reference  to  the  injuries  inflicted  upon  the  body  of  the  

deceased as  detailed  by  Dr.  Chandra  Prakash (PW2)  in  his  

report, there is no discussion of his statement, in regard to  

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nature of injuries inflicted and the weapon used for inflicting  

such injuries.  There is also no discussion in the judgment of  

the  High  Court  on  the  comparative  evaluation  of  medical  

evidence,  ocular  evidence  and  the  documentary  evidence  

produced by the prosecution on record.  These are certainly  

material evidence which have either been completely ignored,  

or  not  appropriately  appreciated  by  the  High  Court.   This  

renders the judgment of the High Court perverse, and provides  

strong reasons for this Court to interfere with the judgment of  

acquittal.  In our considered view, the order of acquittal can  

hardly  be  sustained  where  it  is  based  just  on  some  

contradiction  in  the  statements  of  the  while  completely  

30

ignoring the entire case of the prosecution particularly when  

the  prosecution  has  been  able  to  prove  its  case  beyond  

reasonable doubt.   Dr.  Chandra Prakash (PW2),  who on 9th  

December,  1992  was  posted  as  SMO  at  medical  centre,  

Malpura had conducted the postmortem on the body of both  

the  deceased  persons.   The  injuries  on  the  body  of  the  

deceased Hari Narain, aged 70 years, were recorded by this  

witness in his report (Ex.P4) which reads as under:  

“I. Lacerated  wound  in  size  3  inch  x  2/10 inch till penetrating up to the bones  on the left side of the head which was up  to parietal region.  This injury was having  depressed fracture.  The blood was oozing  out from the wound.

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II. Lacerated  wound  in  the  size  3.5  inch x 2/10 inch penetrating up to the  bones.   In  this  injury  also  there  was  depressed  fracture  on  the  right  parietal  region of the (sic).  The blood was oozing  out from this injury also.  And the brain  matter was coming out.

III. Incised wound in the size of 3 inch x  2/10  into  ½  inch  on  the  upper  arm  behind the  shoulder  and the  blood was  

oozing out from it.

On  the  dead  body  aforesaid  external  injuries were found.  In my opinion the  death  of  Hari  Narayan  was  cause  (sic)  due  to  Neutrogena  (sic)  shock  that  is  injury of the brain caused by injury Nos.1  and 2.

All  the  aforesaid  injuries  were  of  before  death.  The injury Nos. 1 and 2 on the  

32

head  of  Hari  Narayan  were  in  general  nature sufficient to cause the death.  The  death of Hari Narayan was caused within  2  to  3  hours  of  (sic)  the  postmortem.  I  prepared the postmortem report which is  exhibit P-4 which is in my hand writing  and it is signed.  It bears my signature  from A to B and I have entered the cause  of death at C to D.

On the same date in the day time at 1.30  

P.M. I conducted the post mortem on the  dead  body  of  Govind  Mahajan  son  of  Lachh  Raj  age  72  years,  resident  of  Malpura and found following injuries on  the dead body which were caused before  death:

1 A wound of cut in size 4 inch x 2/10  inch x penetrating up to bone and  even up to the brain.  And the brain  Metter  (sic)  was  coming  out  this  

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injury was on the center of the head  from  where  the  blood  was  oozing.  Both the  edges of  the  wound were  sharp.

2 Lacerated wound in size of 3 inch x ¼  inch deep up to  the  bones  on  the  center with depressed fracture.  And  obtuse injury all  around right eyes  (sic).

3 The blood was coming out from the right  ear.

In my opinion the death of  Govind was  caused  due  to  Neutrogena  (sic)  shock  which was caused by injury no.1 and due  to  hemorrhage  which  was  caused  by  injury  no.2.    All  the  3  injuries  were  caused before  the  death  and in  general  nature were sufficient to cause the death  of  Govind.   The  death  of  Govind  was  

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caused  within  2  to  3  hours  from  (sic)  conducting  the  post  mortem  I  have  prepared the post mortem report which is  exhibit  and  is  verified.   It  bears  my  signature at A to B and I have entered the  cause of death at C to D.”

Mahesh (PW 4) in his statement in Court had stated that  

he saw a mob of persons belonging to the Muslim community  

approaching when he was standing outside his house.  Some  

of them held swords in their hands, some of them lathies and  

some held pharsi and once they reached the house of Govind  

Narain, they forcibly opened the door.  He went onto the roof  

of Premchand Mehru’s house, from where he could see that  

some persons were pushing the door of Gopal Narain’s house.  

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He identified  the  persons who jumped inside  the  house,  as  

Mahboob, Haneef and Abdul Zabbar.  Even in the Court,  he  

rightly  identified  one  person  Abdul  Zabbar.   This  witness  

stated the he knew Zabbar even prior to the occurrence.  He  

had also taken Kanhaiya Lal, who was injured, to the hospital.  

He had seen the accused persons at the place of incidence.  He  

was  subjected  to  lengthy  cross  examination.   In  his  cross  

examination, he gave a few vague answers like he does not  

remember  whether  he  had  discussed  the  identity  of  the  

accused persons with Satyanarain, whether 4, 5 or 50 police  

officers were present at the funeral etc.

36

Corroborating the statement of PW4, Kanhaiya Lal (PW5)  

stated that after seeing the mob, he shut the door of his house  

called the Malpura police station and climbed to the roof.  He  

could see persons climbing the roof of Govind Narain’s house  

and he could recognize Afzal Kadir Islam, Bada Bahaiya, two  

brothers  of  tractorwala  namely  Jabbar  tractorwala  and  

Mannan, Hanif and Mahboob.  According to him these persons  

went inside the house of Govind Narain and created nuisance.  

This witness, according to the trial court, rightly identified the  

persons named by him.  This witness also stated that he knew  

these persons even before the incident.  All the three accused  

were identified by the witness in Court.  Later on, when the  

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police came and the persons from the mob fled away, he went  

to the house of Govind Narain, the door was broken and he  

noticed that both Govind Narain and Hari Narain were lying in  

a  pool  of  blood  and  were  unconscious.   Satyanarain  had  

sustained  injuries.   Thereafter  he  took  all  of  them  to  the  

hospital where two deceased persons were declared ‘brought  

dead’.   In  his  cross  examination  also  nothing  material  was  

brought out by the defence.  He did admit that he could not  

identify all the persons, who had come there.  

PW 6-Radhey Shyam is the Investigating Officer and was  

the SHO of police Station, Malpura.  According to him, he was  

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busy in maintaining law and order situation when he received  

the information that assailants had entered the house of one  

Govind Narain Waheti and had beaten those inside; and that  

the latter had been taken to the hospital.  Satyanarain (PW7),  

who is the most material witness of the prosecution, had made  

the report  (Ex.P7)  to  PW6.   He is  the  injured witness.   He  

stated that a mob of 50-60 persons had come towards that  

area shouting, “Maro! Maro!”.  He went inside his house and  

closed the door but in a short while stones were thrown at the  

house.  Some members of the mob started pushing the door  

and eventually broke the door and PW7 ran away for safety.  

Afzal  Mota  Lakhara,  Mahboob,  Hanif  tractorwala,  Jabbar  

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Ahmad Tractorwala came inside and some other persons who  

he  could  not  identify  started  assaulting  Govind Narain  and  

Hari Narain with lathi and pharsi which he witnessed from his  

room.   According  to  PW7,  the  injuries  were  caused  on  the  

head.  He came out of his room and tried to save them, and in  

the process, he also suffered injuries.  In the meantime, the  

police siren blew and upon hearing the same, these persons  

ran away.  The witness correctly identified Zabbar and Afzal in  

Court and stated that these persons had caused injuries to the  

deceased.   This witness referred to the place of  occurrence,  

preparation of site plan and medical report by the doctor, he  

admitted his signature on all these documents including Exh.  

40

P-8.   It  appears  from  the  record  that  during  recording  of  

statement  of  this  witness,  the  public  prosecutor  sought  

permission to declare the witness hostile.  Without declaring  

him  hostile,  the  Court  had  permitted  him  to  be  cross-

examined by the public prosecutor.  This related to the fact  

that after hearing portion C to D, part of Exh. P-9, the witness  

has stated that after identifying the accused, he had stated the  

name of the accused as Abdul Mannan to the police.  He then  

stated  that  Abdul  was  also  there,  however  he  could  not  

identify  him  definitely.   At  that  stage,  this  witness  was  

declared hostile.  Cross examination of these witnesses by the  

public prosecutor as well  as by the defence counsel did not  

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have an adverse impact on the main case of the prosecution.  

In his cross examination, he said that he had forgotten and  

therefore he had stated that he did not go to the police station  

for lodging the report.  In fact he wrote the report in his own  

hand  (Exh.P7).   According  to  him,  the  persons  who  had  

assaulted him were the same persons who had assaulted his  

father and uncle.  He also tried to wriggle out of his earlier  

statement that he could identify the accused.  It needs to be  

noticed that his statement, which was recorded in the Court  

on 17th March, 1999, was completely in consonance with the  

case of the prosecution but when he appeared in the Court for  

further  cross-examination  on 18th March,  1999,  he  tried  to  

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wriggle out of his main statement.  Thus, it is not very difficult  

to understand the variation in his statement resulting in the  

further cross examination.  This entire evidence has to be read  

along  with the  statement  of  the  Investigating  Officer  (PW6).  

Establishment  of  a  complete  chain  of  events  and  clear  

identification of the persons assailing the deceased lead to the  

irresistible conclusion that the prosecution has been able to  

bring home the guilt of the accused.  Undoubtedly, emphasis  

on the second half of the statement of PW7 cannot completely  

demolish the case of the prosecution which otherwise stands  

proved by the statements of PW4, PW5, PW6 and PW2.

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The strain on the witness due to the incident cannot be  

ruled out inasmuch as he had lost his father, uncle and was  

himself injured.  All the basic facts that supported the case of  

the prosecution were stated by him on 17th March, 1999 when  

the case was adjourned for further cross-examination on 18th  

March, 1999 when he made a statement at variance with his  

earlier statement in Court as well as his statement recorded  

under Section 161 of the Cr.P.C.  Another fact which the Court  

cannot  lose  sight  of  is  that  Exh.  P2  was  not  a  document  

written by the police but was written in his own hand and duly  

signed by him which he admitted  even in  his  statement  in  

Court.  

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Satyanarain (PW 7) has also made statements which fully  

aid the case of the prosecution and his statement recorded on  

the adjourned date before the trial court i.e. 18th March, 1999  

which is at variance cannot be treated as gospel truth.  In fact  

the  bare  reading  of  the  statement  clearly  shows  this  fact.  

Even if we exclude the statement of PW7 from consideration,  

then identity of  the accused is  still  fully  established by the  

statements of PW3, PW4, PW5 and PW6.  There is no reason,  

whatsoever advanced, as to why PW4 and PW5 (neighbours of  

the deceased) who are otherwise independent witnesses, and  

the  doctor  would  involve  the  accused  falsely.   There  is  no  

animosity between the parties, and in fact according to these  

45

witnesses, they knew the accused particularly Abdul Zabbar,  

Afzal and Mannan for quite some time.  There is no reason for  

the Court to hold that PWs 4 and 5 are not trustworthy.  Their  

statements describe the occurrence in its proper course and  

are  compelling  evidence  of  the  same.   We  do  not  find  it  

appropriate  to  discard  their  statements  as  not  inspiring  

confidence.   The  statement  of  these  witnesses  must  be  

appreciated  in  the  proper  perspective.   It  was  an  incident  

involving a mob but only few persons had entered the house of  

the deceased, out of which 7 to 8 persons could be identified  

including the three accused as having inflicted injuries on the  

body  of  the  deceased  and  were  duly  identified  by  the  

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prosecution  witnesses.  The  injury  on  the  head  duly  finds  

corroboration from the statement of the Doctor i.e. Ex.P4.   It  

is not a case where the medical evidence does not support or  

corroborate the ocular evidence.  Some discrepancies or some  

variations in minor details of the incident would not demolish  

the case of the prosecution unless it  affects the core of the  

prosecution case.  Unless the discrepancy in the statement of  

witness or the entire statement of the witness is such that it  

erodes  the  credibility  of  the  witness  himself,  it  may not  be  

appropriate for the Court to completely discard such evidence.  

The core of the prosecution case is that when the mob came,  

PWs 4 and 5 ran to their houses, locked their doors, went to  

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the roof of the houses which were adjacent to the house of the  

deceased and watched some members of the mob, of whom  

they  could  identify  a  few,  assault  the  deceased.   This  

statement  clearly  shows  the  trustworthiness  of  these  

witnesses  as  they  have  stated  that  there  were  some  other  

persons whom they could not identify.   However both these  

witnesses and complainant Satyanarain clearly identified the  

persons who had entered and assaulted the deceased persons.  

Though Satyanarain (PW 7)  fully  supported  the  case  of  the  

prosecution that he was also assaulted by these persons, he  

did speak in a different voice the next day before the Court.  In  

our  considered  opinion  the  cumulative  effect  of  the  ocular  

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evidence  and documentary  evidence  is  that  the  prosecution  

has been able to establish its case beyond reasonable doubt.  

We  may  also  refer  to  a  very  recent  judgment  of  this  

Court, given by us in Crl. Appeal Nos. 1693-1994/2005, State   

of  U.P. v.  Mohd.  Ikram  &  Ors.  decided  on  13th June,  2011  

where by upsetting the judgment of acquittal  passed by the  

High Court, this Court held as under:

“15…..Once the prosecution had brought  home the evidence of the presence of the  accused at the scene of the crime, then  the onus stood shifted on the defence to  have  brought  forth  suggestions  as  to  what could have brought them to the spot  at that dead of night. The accused were  

49

apprehended  and  therefore,  they  were  under an obligation to rebut this burden  discharged  by  the  prosecution,  and  having failed to do so, the trial court was  justified in recording its findings on this  issue. The High Court committed an error  by concluding that  the  prosecution had  failed to discharge its burden. Thus, the  judgment  proceeds  on  a  surmise  that  renders it unsustainable.

The trial court did not find evidence  

of  Bhugan  (DW.1),  examined  by  Mohd.  Iqram,  one  of  the  respondents  ,  worth  acceptance.

16.  The  High  Court  did  not  even make  any reference to him. It is a settled legal  proposition  that  in  exceptional  cases  where  there  are  compelling  circumstances,  and the judgment under  appeal  is  found  to  be  perverse  i.e.  the  conclusions  of  the  courts  below  are  

50

contrary to the evidence on record or its  entire  approach  in  dealing  with  the  evidence  is  patently  illegal,  leading  to  miscarriage of justice or its judgment is  unreasonable  based  on  erroneous  law  and facts on the record of the case, the  appellate court should interfere with the  order  of  acquittal.   While  doing so,  the  appellate court should bear in mind the  presumption of innocence of the accused  and  further  that  the  acquittal  by  the  

courts below bolsters the presumption of  his  innocence.  Interference  in  a  routine  manner where the other view is possible  should be avoided, unless there are good  reasons for interference.

17. In the instant case, the circumstantial  evidence  is  so  strong  that  it  points  unmistakably  to  the  guilt  of  the  respondents  and  is  incapable  of  explanation of any other hypothesis that  

51

of  their  guilt.  Therefore,  findings  of  fact  recorded by the High Court are perverse,  being  based  on  irrelevant  considerations  and inadmissible material.”

Learned  counsel  for  the  accused  had  placed  reliance  

upon  the  judgment  of  this  Court  in  Shivalingappa  

Kallayanappa v. State of Karnataka [1994 Supp 3 SCC 235] to  

contend that there was no common object to commit murder.  

The  appellants  cannot  derive  much  advantage  from  the  

judgment of this Court in that case: First,  the facts of that  

case are entirely different from those of the case in hand. In  

that case, it was established by the prosecution that A-1 to A-

5  formed  an  unlawful  assembly  wherein  A1  and  A2  were  

52

armed with axes and A3, A4 and A5 with sticks in order to  

assault the two deceased persons amongst others. While A3  

did not participate, A4 and A5 only dealt blows on legs and  

arms with their sticks but A1 and A2 dealt blows to the head  

with  the  butt  end  of  their  axes  which  proved  to  be  fatal.  

Convicting A1 and A2 under S. 302/149, IPC and A3-5 under  

S. 326/149, the Court held that taking all the circumstances  

of the case into consideration, the common object can be held  

to be to cause grievous hurt only and not to commit murder.  

However,  in  the  present  case,  common  object  to  commit  

murder  has  been  fully  proved.  Second,  the  case  of  the  

prosecution is not that the entire mob had entered the house  

53

of the deceased.  Out of the mob of 50-60 persons only 7 to 10  

persons had broken the door of the house and some of them  

had  climbed  the  wall  to  enter  the  house  of  the  deceased.  

These  persons  had  raised  the  slogan  ‘maro!  maro!’  and  

thereafter  had  inflicted  the  injuries  upon  the  body  of  the  

deceased.  The common intention could even develop at the  

spur  of  the  moment  when  the  three  accused,  as  duly  

identified, were actively inflicting injuries on the body of the  

deceased. They, therefore, not only caused injuries to the vital  

body parts of the deceased, including head injury, but kept on  

inflicting  injuries  even after  the  deceased  had fallen  to  the  

ground.  The efforts of Satyanarain to save them were in vain  

54

and he himself suffered certain injuries.  Thus, in the present  

case,  it  has  been  established  that  more  than  five  persons  

constituted an unlawful assembly and in furtherance to their  

common object and intent, assaulted and caused injuries to  

vital parts of the bodies of the deceased, ultimately resulting in  

their death.  We, therefore, have no hesitation in holding that  

there is no merit in this contention of the accused and the trial  

Court applied the law correctly.

Section 149 consists of two parts; the first deals with the  

commission  of  an  offence  by  any  member  of  an  unlawful  

assembly  in  prosecution  of  the  common  object  of  that  

55

assembly; the second part deals with commission of an offence  

by any member of an unlawful assembly in a situation where  

other members of  that  assembly know the likelihood of  the  

offence  being  committed  in  prosecution  of  that  object.   In  

either  case,  every member of  that  assembly  is  guilty  of  the  

same  offence,  which  other  members  have  committed  in  

prosecution of the common object.

The  final  point  is  the  common  object.  The  case  of  

Lokeman Shah v. State of W.B. [(2001)5 SCC 235] on this point  

would further substantiate the case of the State and diminish  

the worth of the defence.  Accused have inflicted the injuries  

56

after  raising  slogan  and  have  commonly  participated  in  

committing  offence  which  resulted  in  the  death  of  the  

deceased.

For the reasons afore-recorded, we find the present case  

a fit case for interference in the judgment of acquittal recorded  

by the High Court. Consequently, the appeals of the State are  

allowed, the judgment of the High Court is set aside and that  

of the trial court is restored.  We concur with the finding of  

guilt  and the quantum of  punishment  awarded by the trial  

court.  

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The bail bonds of the accused, if any, who are on bail, are  

cancelled.  They are directed to surrender within four weeks  

from today failing which the Chief Judicial Magistrate, District  

Tonk, Rajasthan shall ensure to take them into custody and  

they  shall  undergo  the  remaining  part  of  their  sentence  in  

terms of the judgment of conviction and punishment awarded  

by the trial court.

A copy of the judgment be sent to the concerned CJM for  

information and action.   

....................................J.        [Dr. B.S. Chauhan]

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....................................J.                             [Swatanter Kumar]

New Delhi; July 7, 2011

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