Mannan Vs. State of Assam  INSC 139 (18 February 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.946
OF 2002 Abdul Mannan ...Appellant(s) Versus State of Assam ...Respondent(s)
appeal is directed against the judgment of the Gauhati High Court in Criminal
Appeal No. 248 of 1998 dated 22nd June, 2001.
Mannan, Abdul Salam and Abdul Subhan have preferred an appeal against the
impugned judgment. The appeal of Abdul Salam and Abdul Subhan was dismissed by
this Court vide order dated 13th September, 2002, as they did not surrender.
The present surviving appeal is only on behalf of the accused appellant - Abdul
facts, which are necessary to dispose of the appeal are recapitulated as under:
February, 1994, one Abdul Kuddus Khan lodged a written First Information Report
[for short, `F.I.R.'] before the Chaudhury Bazar Police Out Post stating inter
alia that on that date at about 2.00 p.m. while his elder brother Abdul Hakim
was returning home from Masjid, six accused persons named in the F.I.R.,
namely, Subhan, Abdul Mannan, Abdul Hanan, Abdul Sukur, Abdul Kurdish and Abdul
Salam attacked and assaulted him. On hearing the screams and loud cries for the
help of Abdul Hakim, another elder brother, the informant, namely, Abdul Karim
and one of his neighbours, Abdul Kalam, rushed to the spot and intervened,
whereupon those two persons were also assaulted and they sustained injuries.
The injured persons were taken to the hospital and Abdul Karim succumbed to
injuries after fourteen days.
police after usual investigation submitted a charge sheet against all the six
accused persons. The learned Additional Sessions Judge, Nagaon framed charges
under Section 302/323/34 IPC. The Trial Court examined eight witnesses and on
conclusion of the trial, the accused were acquitted by the Trial Court. Against
acquittal, the State of Assam preferred an appeal before the High Court.
impugned judgment, the High Court carefully examined the entire evidence and
relevant legal position, as settled by this Court in a number of cases. In the
impugned judgment, the High Court has clearly observed that the view taken by
the Trial Court was not a possible or a plausible view. The High Court termed
the judgment of the Trial Court as perverse and wholly untenable.
of the conflicting judgments, we ourselves looked into the entire evidence and
the relevant documents of the case. There are five eye witnesses. Ajijur
Rahman, P.W.1 had known the accused persons, who lived in the same
neighbourhood. He categorically stated that he saw the appellant and the other
accused beating the deceased with lathis. Fearing that the accused might beat
him, his sister took him away. He also stated that the deceased was taken to
Nagaon because the injuries sustained by him were critical in nature.
Kalam, P.W.2 stated that the accused were known to him because they live in his
neighbourhood. He also stated that the appellant and the other accused gave
lathi blows to the deceased.
Malik was examined as P.W.3. He clearly stated that Abdul Mannan gave lathi
blows to Abdul Karim along with the other accused. He asked them not to beat
Abdul Karim, but they did not listen to him. The appellant and the other
accused ran away after causing injuries.
Hakim P.W.4 also clearly stated that the appellant and other accused gave
beating to Hafez Kalam and him as well with lathis. They gave lathis blows to
Abdul Karim. Abdul Hakim stated that he also received injuries on his head and
below the left eye.
Kuddus Khan, P.W.5 also corroborated the prosecution version and stated that
the appellant and others had given beating to his brothers Abdul Hakim and
Abdul Kalam. He also stated that his other brother Abdul Karim came on the spot
from the western direction and shouted `don't beat, don't beat' but that had no
impact on them. The deceased Abdul Karim fell down on the ground because of the
learned Additional Sessions Judge, Nagaon, Assam, did not carefully marshall
the prosecution evidence on record and was swayed away by the fact that the
injuries were caused by `sharp edged weapon' and ultimately, those injuries
caused by sharp edged weapon were not found by the doctor in his evidence. The
entire prosecution evidence was discarded solely on this ground. According to
the High Court, the words `sharp edged' were added subsequently between the two
lines in the report. We have checked the original record and we tend to concur
with the findings of the High Court. The Court must examine the entire case
comprehensively. Even if some inconsistency or discrepancy is discovered, then
its impact on the total prosecution version must be carefully examined. In the
instant case, how any court can legitimately ignore the testimony of five eye
witnesses, including two injured eye witnesses, particularly when their version
is wholly consistent and gets full corroboration from the medical evidence? The
statements of all eye witnesses including the injured eye witnesses are wholly
consistent and are fully corroborated with the medical evidence.
Pradip Kumar Talukdar, P.W.7 who was posted at the Gauhati Medical College
Hospital in the Forensic Medicine Department, performed the post-mortem
examination on Abdul Karim and found the following injuries.
On larynx and trachea, tracheotomy was done.
abrasion on the back of the chest - 10 cm away from the root of neck and 5 cms
away from the midline left side of the size 5 cm. x 3 cm.
Abrasions over left buttock.
abrasion over right leg.
Lacerated wound over medical aspect of right wrist joint above the elbow joint.
The wound is stitched.
Lacerated wound over the scalp in the parieto- occipital region on both sides.
Left side wound of size 6 cm x 2 cm x bone deep. Right side wound is of size 5
cm x 1.5 cm x bone deep. Both the wounds are stitched. Injury over the skull.
communated fracture over both right and left parieto-occipital region is
of the brain. - Membranes lacerated at place and sizes vary from 2 x 1.5 cm to
2 cm x 2cm.
(i) Lacerated injury over right parietal region of size 4 cm x 4 cm x 2 cm.
Lacerated injury over left parietal region of size 4 cm x 2 cm x 1.5 cm.
Frontal lobe contusion of size 6 cm x 3 cm of size."
opinion of Dr. Talukdar, the death was a result of head injury sustained by the
deceased. According to him, all the injuries were ante-mortem in nature caused
by blunt force impact, homicidal in nature. The medical evidence corroborates
the evidence of five eye witnesses including the statements of the injured eye
witnesses. The Trial Court gravely erred in ignoring the most important and
material aspect of the prosecution version.
considered view, in the impugned judgment, the High Court carefully marshalled
the entire prosecution evidence and also considered the relevant judgments of
this Court, both on the aspect of interference by the High Court in cases where
there is acquittal by the Trial Court and on the aspect of common intention.
well settled that in a case where the Trial Court has recorded acquittal, the
Appellate Court should be slow in interfering with the judgment of acquittal.
On evaluation of the evidence, if the two views are possible, the Appellate
Court should not substitute its own view and discard the judgment of the Trial
Court. But, in the instant case, the High Court clearly came to the conclusion
that the entire approach of the Trial Court cannot be sustained both on the law
and the facts. According to the High Court, there is non-reading and
mis-reading of the evidence and the law, as it stands, is also not appreciated
in proper perspective.
to the High Court, the conclusion arrived at by the Trial Court can only be
termed as perverse because no Court acting reasonably and judiciously can ever
take such a view.
impugned judgment, the High Court observed that this was not a case where two
views were possible and the court below has taken the one view. According to
the High Court, on careful scrutiny of the evidence, no other view point is
possible. The High Court was left with no option but to set aside the judgment
of the Trial Court. In our view, the High Court was fully justified in setting
aside the acquittal so far as the appellant herein and Abdul Salam and Abdul
Subhan are concerned.
Court has also examined that this was a clear case of common intention in
committing the crime. The Court observed that common intention can develop
during the course of an occurrence.
Court placed reliance on Sheoram Singh v. State of U.P. AIR 1972 SC 2555, in
which this Court observed as under:
is undeniable that common intention can develop during the course of an
occurrence but there has to be cogent material on the basis of which the court
can arrive at that finding and hold an accused vicariously liable for the act
of the other accused by invoking Section 34 of the Indian Penal Code."
was also placed on Joginder Singh v. State of Haryana AIR 1994 SC 461, in which
this Court has observed:
is one of the settled principles of law that the common intention must be
anterior in time to the commission of the crime. It is also equally settled law
that the intention of the individual has to be inferred from the overt act or
conduct or from other relevant circumstances. Therefore, the totality of the
circumstances must be taken into consideration in order to arrive at a
conclusion whether the accused had a common intention to commit the offence under
which they could be convicted. The pre- arranged plan may develop on the spot.
In other words, during the course of commission of the offence, all that is
necessary in law is the said plan must proceed to act constituting the
appellant has been named in the F.I.R. All the eye witnesses including the
injured eye witnesses have categorically named the appellant and attributed
specific role to him. In this view of the matter, the Trial Court was not
justified in acquitting the accused when there was overwhelming evidence
against the appellant and other accused. It was not a case that the view taken
by the Trial Court was a plausible or a possible view. The judgment of the
Trial Court was wholly unsustainable. The High Court in the impugned judgment
was justified in setting aside the judgment of the Trial Court.
scrutiny and examination of the impugned judgment, we are clearly of the view
that, in the impugned judgment, the High Court has taken into consideration all
relevant factors in dealing with the appeal from the order of acquittal. The
impugned order of the High Court is unexceptionable.
Court in the impugned judgment convicted the appellant as also the accused
Abdul Subhan and Abdul Salam under Section 304 Part II I.P.C. and awarded
imprisonment for a period of four years and to pay a fine of Rupees one
thousand each; in default, to undergo further imprisonment for a period of one
month each. The sentence awarded by the High Court is just appropriate in the
facts and circumstances of the case.
appeal, being devoid of any merit, is accordingly dismissed. The bail bonds of
the appellant, who is on bail, are cancelled and he shall surrender to the court.
In case the appellant does not surrender within four weeks, the
respondent-State would take all necessary steps to arrest the appellant and
lodge him in jail to serve out the remaining period of sentence.
...................J.(K. S. Radhakrishnan)
February 18, 2010.