Mansoor & Ors Vs. State of Madhya
Pradesh  INSC 146 (6 May 1971)
CITATION: 1971 AIR 1977 1971 SCR 731 1971 SCC
Code of Criminal Procedure, 1898, s. 4(1)
(t), 492, 417(3)- Presentation of appeal in High Court against acquittal of
accused-Additional Government Advocate when appointed Public Prosecutor can
present appeal-Such appeal is a 'case' in which the Public Prosecutor is
entitled to act-Power of High Court in hearing appeal against acquittal-Principles.
Constitution of India, Art. 136-Scope of
arguments in appeal by special leave.
The appellants were charged along with five
others for the offences of murder and attempt to murder. Five accused persons
were acquitted by the trial court Four of the appellants were convicted by the
trial court, the conviction being upheld by the High Court. The fifth appellant
was acquitted by the trial court but convicted by the High Court in an appeal
by the State. In appeal by special leave it was contended before this Court;
(i) that the conviction of the appellants could not be sustained on the
evidence; (ii) that the High Court in reversing the judgment of acquittal by
the trial court against one of the appellants had not followed the principles
laid down by this Court; and (iii) that the Additional Government Advocate was
not authorised to present the appeal against acquittal in the High Court
because such appeal was not a 'case.
HELD: (i) Under Art. 136 of the Constitution
this Court does not normally re-appraise the evidence for considering the
credibility of the witnesses. Unless the trial is vitiated by some illegality
or irregularity of procedures or there is some violation of the rules of
natural justice resulting in unfair trial, or unless the judgment has resulted
in gross miscarriage of justice, this Court does not as a rule proceed to
evaluate the evidence for coming to its own independent conclusion. No such
infirmity had been made out by the appellants' counsel in the present case.
[736 F] (ii) The appellants counsel was also
unable to show that the High Court in reversing the judgment of the trial court
against one of the appellants had failed to observe the principles laid down by
this Court. [737 H] Samwat Singh & Ors. v State of Rajasthan,  3
120, Keshav Ganga Ram Navaga & Anr. v.
State of Maharashtra, Cr. A. No. 100/68 dt. 3-2-1971, Shea Swarup V. King
Emperor (1934) L.R. 61 I.A. 398 and Laxman Kalu v. State of Maharashtra A.I.R.
1968 S.C. 1390, referred to.
(iii) The Additional Government Advocate who
presented the appeal againstacquittal in the High Court was notified as Public
Prosecutor for the High Court in respect of cases arising in the State of
Madhya Pradesh. The case resulting in the acquittal of the accused persons would
clearly be a case arising in the state and within the contemplation of the
notification. Reading s. 4(1)(t) Cr. P.C. which defines 'public prosecutor'
together 732 with s. 492 Cr. P. C. under which the State Government is
empowered to appoint Public Prosecutors, the Additional 'Government Advocate
when appointed' as a Public Prosecutor for the High Court in respect of cases
arising in the State of Madhya Pradesh must be held to be a Public Prosecutor
lawfully empowered to present appeals in the High Court against' orders of
acquittal. [740 C] Bhimappa Basappa Bhu Sannayar v. Laxman Shivrayappa
Samagouda & Ors. A.I.R. 1970 S.C. 1153 and Bhagwan Das v. The King, A.I.R.
1949 P.C 263, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeals Nos. 30 and 31 of 1967.
Appeals by special leave from the judgment
and order dated April 21, 1966 of the Madhya Pradesh High Court, Indore Bench
in Criminal Appeals Nos. 248 and 313 of 1965.
Nur-ud-din Ahmed, C.L. Sareen, J. C. Talwar
and R. L. Kohli for the appellants (in Cr. A. No. 30 of 1967).
I. N. Shroff, for the appellant (in Cr. A.
No. 31 of 1967).
Nur-ud-din Ahmed, C. L. Sareen, S. K. Mehta
and K. L. Mehta, for respondents Nos. 1 to 4 and 9 (in Cr. A. No. 31 of 1967).
The Judgment of the Court was delivered by
Dua, J.-These are two appeals by special leave. In one appeal, Mansoor, Rashid,
Ishaq, Yunus and Mehmood s/o Bhondekhan are the appellants and in the other the
State has appealed against the acquittal of Ajimkhan, Hakimkhan, Mah- moodkhan
s/o Dilawarkhan, Gabbu and Mehmood s/o Bhondekhan.
All the ten accused, namely, Mansoor s/o
Bhondekhan, Rashid s/o Allabeli, Ishaq s/o Wali Mohammad, Yunus s/o Mohammed
Hussain, Ajimkhan s/o Wariskhan, Hakimkhan s/o Anaskhan, Mahmoodkhan s/o
Dilawarkhan, Gabbu s/o Mohammad Sharif, Mahmood s/o Bhondekhan and Makku s/o
Bhondekhan, were charged and tried by Additional Sessions Judge, indore, for
offences under ss. 302/34, 302/149, 307/34 and 307/149 I.P.C. Out of them 8
accused persons, namely Mansoor, Rashid, Ishaq, Yunus, Ajimkhan, Hakimkhan,
Mahmoodkhan s / o Dilawarkhan and Mehmood s / o Bhondekhan, were in addition
charged under ss. 302, 307 and 148 I.P.C. All these charges relate to the
murder of one Karamat Beg Pahalwan s/o Mirza Karim Beg at Bombay Bazar Choraha
on January 19, 1965, at about 12-30 P.M. and to an attempt on the life of Ikbal
Beg s/o the deceased Karamat Beg Pahalwan at the same time and place.
The Trial Court convicted Mansoor, Rashid,
Ishaq and Yunus and acquitted the rest giving them benefit of doubt. In regard
to Gabbu it was observed that he had not been shown 733 to be in possession of
any Weapon of offence and that it could not be said that he had any. knowledge
of the object of the members of the party led by Mansoor. He was, therefore,
held not to be member of this assembly. 'No other case was sought to be made
out against him.
Each of the three injuries (Nos. 2, 3 &
9) inflicted on the deceased Karamat Beg were held by the Trial Court to be
individually sufficient in the ordinary course of nature to cause Karamat's
death. But as none of the accused persons were proved beyond doubt to have
inflicted any particular fatal injury to the deceased, they were all convicted
under s. 302 read with s. 34 I.P.C For coming to the finding of common intention,
reliance was placed on Mathurala Adi Reddy v. The State of Hyderabad. (1) The
injury inflicted on lkbal Beg was imputed to Mansoor, but this injury was held
to constitute an offence only under s. 324 I.P.C. As all the four accused had
joined in this assault with common intention they were all convicted under s.
324 read with s. 34 I.P.C. Under s. 302 / 34 I.P.C. all the four accused were
sentenced to imprisonment for life and under s. 324/34 I.P.C. they were
sentenced to 6 months rigorous im- prisonment.
The convicted persons appealed to the High
Court against their conviction, and the State appealed against acquittal of the
others. The State also presented a revision petition for enhancement of the
sentences imposed on those convicted.
The High Court upheld the conviction of
Mansoor, Rashid, Ishaq and Yunus and dismissed their appeal. It allowed the
State appeal only against the acquittal of Mehmood s/o Bhondekhan and convicted
him along with four persons convicted by the Trial Court. The result was that the
charges under s. 148 I.P.C. and s. 302/149 I.P.C. were also held proved against
all the five convicted accused persons.
This charge was held established in addition
to the charge under s. 302/34 I.P.C. Similarly with respect to the injury
inflicted on Ikbal Beg, the charge under s. 324/149 I.P.C.
was held proved. In the final result, Mehmood
s/o Bhondekhan along with the four accused persons convicted by the Trial Court
were all held guilty of offences under s.
302/34 I.P.C., s. 302/149 I.P.C. and s. 148 I.P.C.
With respect to the injuries inflicted on Ikbal Beg also all these five persons
were held guilty of offences under s. 324 read with ss. 34 and 149 I.P.C. The
sentence for this offence was maintained, but they were in addition sentenced
under s. 148 I.P.C. to one year's rigorous imprisonment.
The High Court did not find any cogent ground
for enhancing the sentence of life imprisonment to that (1) A.I.R. 1956 S.C.
734 of death for the offence under S. 302
read with Ss. 34 and .149 I.P.C. The revision was accordingly dismissed.
In this Court again there are two appeals-one
by the five accused convicted by the High Court, and the other by the State
against the acquittal of the remaining five accused persons. In the appeal by
the State the sentence for life imprisonment has been stated to be inadequate
for the gruesome murder in broad day-light. Both these appeals have been
presented in this Court by special leave under Art. 136 of the Constitution.
They were first heard by us on August 27 & 28 and September 22, 1970. It
appears from the record that the accused persons had not filed any list of
defence witnesses in the Court of Committing Magistrate. A list of 13 witnesses
was, however, filed in the Court of the Additional Sessions Judge and summons were
issued with res- pect to those witnesses. On the day when the defence witnesses
were to be examined they were not present with the result that the Trial Court
declined further adjournment for their production. At the time of arguments in
the Trial Court the question of prejudice to the accused persons because of the
refusal to grant adjournment for the production of the defence witnesses was
raised, but the Court did not consider that any prejudice had resulted to the
accused persons who wanted to examine them. From the record we find that only
Mansoor. Mehmood s/o Bhondekhan, Mahmoodkhan s/o Dilawarkhan, Hakimkhan and
Ajimkhan desired to examine defence witnesses. The other accused persons had
declined to examine any witness in defence. Out of the list of 13 witnesses
Shri Bonge the hand-writing expert was given up. The circumstances in which the
defence witnesses were disallowed by the Trial Court are that on June 10, 1965,
the accused persons were called upon to enter upon their defence. It was found
that none of the defence witnesses were present in the Court on that day. It
also appears that the plea in support of which the witnesses, except witnesses
Nos. 9 & 13, were sought to be examined was one of alibi.
The Trial Court granted an adjournment only for
one day to enable the accused persons to secure the attendance of the witnesses
on June 11, 1965. On that day, two witnesses were reported to be out of station
and with respect to one witness it was reported that there was no person of
that name at the address which had been taken from the list of defence
witnesses furnished by the accused. The summons to Munshi had not been received
back. The defence was, in the circumstances, closed.
After Shri Nuruddin had addressed us on this
grievance, we asked him if he at this stage considered it necessary to examine
the witnesses in defence. The learned counsel, after consulting his clients and
considering the matter, stated in the Court that 735 he was not interested in
producing any defence evidence at this late stage. Arguments were then
continued and practically at ;the close of the arguments Shri Nuruddin on
reconsideration of 'the matter expressed his desire to be permitted to produce
defence ,evidence. We accordingly made an order on September 22, 1970 directing
the Trial Court to permit the accused persons to examine 10 witnesses. This
request, though belated, was allowed in the interests of justice. In the Trial
Court, however, only one witness Munshi Khan s/o Kasam was examined in defence.
According to th is witness he had gone to the Trial Court on June 16, 1965 .but
was informed by some clerk or peon that the case had already been decided :
thereupon he returned home.
According :to his evidence about 5 or 6 years
ago during the days when ,the incident in question took place his mother was
ill and had been admitted in the M.Y. Hospital. The incident in question had,
according to him, taken place in Bombay Bazar near Agra Hotel. The witness used
to visit Mehrabkhan Patel who had a milk shop in Bombay Bazar and indeed he
used to steep at Mehrabkhan's place. At about 12 noon on the date of the
incident the witness and Chhotekhan were talking to each other near Agra .Hotel
when they saw Karamat Pahalwan coming from Mochipura side uttering abuses to
Ishaq and Mansoor. Mansoor was also seen standing opposite Agra Hotel. Karamat
Pahalwan saying that Mansoor's servants had started thinking too much of
them-selves because of incitement from their master rushed at Mansoor with a
stick measuring 2 or 2-1/4 ft. in length and 1 or 11/2 inches thick. Karamat
gave a blow to Mansoor with the stick hitting him on the head. Mansoor started
Chhotekhan took Mansoor on his bicycle to the
police station. A big crowd ,collected there but the witness went away. This is
all that this, witness stated in his examination-in-chief. In cross-examination
he said that he could not remember the date of the incident and :also that he
did not know whether Chhotekhan was alive or dead.
According to him none of the accused present
in the Court were present at the scene of the occurrence except Mansoor.
The witness remained in the M.Y. Hospital for
about eight days 'in connection with his mother's treatment. He denied that
Ikbal s/o Karamat had any stick in his hand or that he gave any blow to
Mansoor. This evidence seems to us to be wholly unimpressive ,and does not call
for any serious consideration or comment.
When these appeals came up for hearing before
us with the remand report of the Trial Court and the record of the defence
evidence, Shri C. L. Sareen the learned counsel appearing in ,support of the
appeal by the convicted appellants again took us through the relevant record
and addressed arguments challenging :-the conviction of the appellants. After
reading the testimony of Munshikhan he made a faint attempt to persuade us to
accept 736 his evidence, but realising the futility of this venture he soon
gave up the attempt. His main and principal contention, how-ever, was that the
witnesses whose evidence was not relied upon, by the Trial Court with respect
to the presence of the five accused persons, whose acquittal was upheld by the
High Court, should not have been believed for convicting the present
appellants. In support of this contention he took us through the evidence of
Iqbal Beg s / o the deceased (P.W. 1) and submitted that he was an interested
witness and his evidence was unbelievable because his testimony did not tally
with the evidence of Narayan singh P.W. 25 who had prepared the site plan. The council
also referred to certain portions of the statements of Ahmed Khan P.W. 2,
Mohammad Shafi P.W. 3, Ismail P.W. 6, Dr. B. N. Chatterjee, P.W. 10,
Shitlaprasad P.W. 24 and Abdulkadar P.W. 29 for the purpose of persuading us to
hold that their evidence is not worthy of credance. His attack was also
directed to the First Information Report. According to him the F.I.R. lodged by
Ikbal Beg was not in reality the first information in point of time, because
the information with regard to this incident had already been made by Mansoor.
We are wholly unable to agree with the
counsel that the information lodged by Ikbal Beg was. not the F.I.R. and that
Mansoor had made the report earlier. The case diary of the police was also
subjected to some criticism for the purpose of discrediting the investigation.
All these arguments which the learned counsel
has taken, pains to advance are misconceived in this Court for the simple
reason that under Art. 136 of the Constitution this Court does not normally
re-appraise the evidence for considering the credibility of the witnesses as if
it is a court of first appeal. Unless the criminal trial is vitiated by some
illegality or irregularly of procedure or there is some violation of the rules
of natural justice resulting in unfair trial, or unless the judgment has
resulted in gross miscarriage of justice, this Court does not as a ruler
proceed to evaluate the evidence for coming to its own independent conclusion.
No such infirmity has been made out by the appellants' learned counsel.
We may briefly state the broad essential
features of the prosecution story as narrated by the eye witnesses and as
accepted by the High Court. Mansoor has employed accused Ishaq, Yunus and
Gabbu. Rashid is a friend of Mansoor since childhood. Accused Mahmoodkhan s/o
Dilawarkhan, Ajimkhan and Hakimkhan are three Pathans who usually visited
Mansoor's shop. They are stated to indulge together in the nefarious trade of
smuggling opium. Karamat Beg and his son Ikbal Beg are opposed to Mansoor's
party. Indeed there have been incessant quarrels between the two factions.
Mansoor's servants often used to act 737 in
offensive and provocative manner towards Karamat and his son. As a result of
fresh trouble about a couple of months prior to the present occurrence,
proceedings under S. 107 Cr. P.C. were also initiated between the parties. On
January 19, 1965, Karamat started from Taj Laundry at about noon time for going
to his house with some guava fruit and a bottle. Those were Ramzan days. He was
proceeding along Jawahar Marg and as he turned towards Bombay Bazar he met'
Ishaq and Yunus Ishaq spot at Karamat which infuriated him.
In his younger days Karamat used to be known
as a renowned wrestler. Ishaq ran away followed by Karamat who was shouting at
Ishaq. When they reached near the Grand National Bakery they saw Mansoor there.
On Karamat's complaint about misbehaviour of Mansoor's servants, Mansoor
retorted that the matter should be settled once for all right then. lkbal
hearing his father's shouts also followed him. In response to Karamat's enquiry
as to what was to be settled, Mansoor directed his servants to start the job.
Rashid than assaulted Karamat with a knife.
Mansoor also suggested that Karamat's veins should be cut off. Ikbal who had
also reached their snatched a stick from a faqir who happened to be closely and
tried to save his father. But before he could intervene Mansoor had given one
knife blow to Karamat on his neck and another on his chest. Yunus and Ishaq
also started grappling with Karamat. lkbal gave stick blows to them. On this
Mansoor asked Rashid to cut off lkbal's veins and he himself also aimed a knife
blow at lkbal but the blow missed the mark. lkbal in the meantime slipped away
but not before Ishaq had caused him an injury on his left hand. Mehmood also
gave a blow on lkbal's left arm. Karamat who was given further blows by the
party of Mansoor became unconscious. lkbal straight went to the police station
and lodged the report. These broad features.
of the prosecution version as given by the
eye witnesses were, accepted by the High Court and since it was a case of party
factions the evidence was sifted by both the Courts to see that if there was
some element of doubt with respect to any individual accused person he should
be given its benefit.
Mr. Sarin next submitted that the High Court
had not followed the standard laid down by this Court for dealing with the
appeals against acquittal and in support of this submission he relied on the
decisions of this Court in Sanwat Singh & others v. State of Rajasthan(')
and on an unreported judgment of this Court in Keshav Ganga Rain Navge &
Anr v. State of Maharashtra(2). In our opinion, this submission is wholly
unfounded. The High Court did not ignore the standard laid down by this (1)
 3 S.C.R. 120.
(2) Cr. A. No. 100 of 1968 decided on
February 3, 1971.
47-1 S.C. India/71 738 Court in Sanwat
Singh's case(1). According to that decision the words "substantial and
compelling reasons" for setting aside an order of acquittal used in this
Court's earlier decisions are intended to convey the idea that an appellate
court shall not only bear in mind the principles laid down by the Privy Council
in Sheo Swarup v. King Emperor,(2) but must also give its clear reasons for
coming to the conclusion that the order of acquittal was wrong. In the case
before us the High Court has kept these observations in view when dealing with
the acquittal appeal. In Keshav Ganga Ram Navge's case(3) the Additional
Sessions Judge had disbelieved the evidence of the eye witnesses, who according
to him, had spoken about the incident in a parrot-like manner. The three dying
declarations were also rejected by the Trial Court and the other evidence was
also held untrust worthy. The High Court on appeal against the acquittal relied
on two out of the three dying declarations and while dealing with the evidence
of the eye witnesses did not consider the discrepancies and improbabilities of
the version given by those witnesses as pointed out by the Trial Court. The
Court quoted with approval some observations made in Laxman Kalu v. State of
Maharashtra(4) in which it was said that the powers of the High Court in an
appeal against acquittal are not different from the powers of the same Court in
hearing an appeal against conviction, but the High Court in reversing the judgment
of the Sessions Judge must pay due regard to all the reasons given by the
Sessions Judge for disbelieving a particular witness and must attempt to dispel
those reasons effectively before taking a contrary view of the matter. The High
Court in the case before us, in our opinion did not go against these
Indeed the appellants' learned counsel was
unable to show how the High Court had ignored the principles laid down by this
Court in the decisions cited while dealing with appeals against acquittal. In
Sanwat Singh's case(1), it is worth- noting, this Court had dismissed the
appeal and had made the following observations with regard to the exercise of
power of this Court under Art. 136 of the Constitution. It was said there:
"Article 136 of the Constitution confers
a wide discretionary power on this Court to entertain appeals in suitable cases
not otherwise provided for by the Constitution.
It is implicit in the reserve power that it
cannot be exhaustively defined, but decided cases do not permit interference
unless "by disregard to the forms of legal process or some violation of
the principles of natural (I)  3 S. C. R. 120.
(2) (1934) L.R. 61 I.A. 398.
(3) Cr. A. No. 130 of 1968 decided. on Feb.
(4) A.I.R. 1968 S.C. 1390.
739 justice or otherwise, substantial and
grave injustice has been done". Though Art. 136 is couched in widest
terms, the practice of this Court is not to interfere on questions of fact
except in exceptional cases when the finding is such that it shocks the conscience
of the court. In the present case, the High Court has not contravened any of
the principles laid down in Sheo Swarup's case (1) and has- also given reasons
which led it to hold that ,the acquittal was not justified. In the
circumstances, no case has been made out for our not accepting the said
findings." In the present case we further find that Mahmood, who was
convicted on appeal against acquittal has since served out his sentence and is
no longer in jail. The counsel contended that if Mahmood's conviction were to
be set aside then there would be no justification for applying ss. 148 and 149
I.P.C. We are ,not persuaded to hold that the judgment of the High Court
suffers from any such grave or serious error as would justify our interference
with the order convicting Mahmood. The High Court considered the evidence and
came to its own conclusion. No legal error suggesting miscarriage of justice
has been pointed ,out by the learned counsel. The conviction of the present
appellants, it may be pointed out, is also under s. 302 read with S. 34 I.P.C.
and this conviction would, in any event, be unassailable even though s. 148
I.P.C. is not attracted.
We, however, do not accept the contention
that Mahmood was wrongly convicted and S. 148 I.P.C. is not attracted.
Finally the counsel laid stress on the
submission that the ,appeal in the High Court was incompetent because the
Additional Government Advocate who had presented the appeal was not ,the Public
Prosecutor. The Gazette Notification to which our attention has been drawn
shows that Mr. Dubey, the Additional Government Advocate, was notified as
Public Prosecutor for the High Court in respect of the cases arising in the
State of Madhya Pradesh. The counsel raised an ingenious argument, namely, that
Mr. Dubey could not be considered to be a Public Prosecutor for presenting
appeals in the High Court against orders of acquittal, because the appeal could
not be described as a case, which arose in the High Court in which eventuality
alone, he would act as a Public Prosecutor. The argument has merely to be
stated to be rejected. The counsel tried to seek support from a decision of
this Court reported as Bhiniappa Bassappa Bhu Sannavat v. Laxman Shivrayappa
Samagouda and others.(1) In this decision it was said that the word
"case" which is not (1) (1934) L. R. 61 I.A. 398. (2) A.I.R. 1970
740 defined by the Code of Criminal Procedure
is well understood in legal circles and it ordinarily means a proceeding for
the prosecution of a person alleged to have committed an offence. It was added
that in other contexts this word may represent other kinds of proceedings. ]But
in the context of S. 417(3) the Court said) it must mean a proceeding which at
the end results either in discharge, conviction, or acquittal of an accused
person. If anything, this decision goes against the appellants' contention. The
case resulting in the acquittal of the accused persons would clearly be a case
arising in the State and within the contemplation of the notification, and the
Additional Government Advocate.
who is the Public Prosecutor for the High
Court would be entitled to present the appeal in such a case. Reading s.4(1)(i)
Cr. P.C., which defines "Public Prosecutor" together with s. 492 Cr.
P.C. under which the State Government is empowered to appoint Public
Prosecutors, the Additional Government Advocate when appointed as a Public
Prosecutor for the High Court in respect of the cases arising in the State of
Madhya Pradesh must, in our opinion, be held to be a Public Prosecutor lawfully
empowered to present the appeals in the High Court against orders of acquittal.
The Privy Council decision reported as Bhagwan Das v. The King(') cited by Shri
Sarin also goes against his contention. It is further note-worthy that this
objection was not raised in the High Court. We are, therefore, unable to
sustain the submission that the appeal against the order of acquittal was filed
in the High Court by an unauthorised person.
The appeal on behalf of the accused persons
must, therefore., fail.
Mr. Shroff rightly did not press the appeal
against acquittal of the five accused persons, which was based on the
concurrent order by both the courts below. In regard to Mahmood also, who
having served out his sentence has already been released, he did not seriously
press his appeal for enhancement of sentences. Otherwise too, in regard to the
prayer for enhancement of the sentences, we do not find any cogent grounds for
differing with the order of the High Court.
In-the final result, both the appeals fail
and are dismissed.
G. C. Appeals dismissed.
(1) A.I.R. 1949 P.C. 263.