Holding

The High Court was justified in setting aside the acquittal and convicting the appellant under Section 304 Part II IPC.

Summary

The case arose from an assault on Abdul Hakim and his brothers on 17 February 1994, during which Abdul Karim was also attacked and later died of his injuries. Six persons, including Abdul Mannan, were charged under Sections 302, 132, 313 and 34 of the IPC. The trial court acquitted all accused, but the High Court set aside the acquittal, finding that five eye‑witnesses (including two injured witnesses) and a forensic medical report conclusively identified the accused and established lethal blunt‑force injuries. The Supreme Court examined whether the trial court’s acquittal could be disturbed despite the general rule of restraint in interfering with acquittals. It held that the High Court was correct to find the trial court’s view perverse and unsustainable, given the overwhelming corroborative evidence and the presence of common intention. Consequently, the appellant was convicted under Section 304 Part II IPC and sentenced to four years’ imprisonment with a fine. The Supreme Court dismissed the appeal, ordered cancellation of bail, and directed surrender.

Issues considered

Whether the trial court erred in acquitting the accused despite eye‑witness and medical evidence.
Whether the evidence establishes common intention under Section 34 IPC.
Whether an appellate court may set aside an acquittal when the evidence does not support the trial court's view.
Whether conviction under Section 304 Part II IPC is appropriate in the facts of the case.

Legislation cited

Indian Penal Code, 1860s. 132, s. 302, s. 304(Part II), s. 313, s. 34

Subjects

murderculpable homicide not amounting to murderacquittalappellate reviewcommon intentioneye‑witness testimonymedical evidenceIPCSection 304Section 34

Judgment

[201 O] 2 S.C.R. 1030

A ABDUL MANNAN
v.
STATE OF ASSAM
(Criminal Appeal No. 946 of 2002)
FEBRUARY 18, 2010
B
[DALVEER BHANDARI AND K.S. RADHAKRISHNAN, JJ.]'

Penal Code, 1860: ss.3021323134 - Appellant charged
for committing murder - Acquittal by trial court - Reversed
C by High Court - On appeal, held: Trial Court was not justified
in acquitting appellant when there was overwhelming evidence
against him - Medical evidence corroborated evidence of
eye-witnesses - Eye-witnesses categorically named appellant
and attributed specific role to him - There was mis-reading
D of evidence and non-appreciation of law in proper perspective
i by trial court.

Prosecution case was that on the fateful day, when
brother of informant was on way, accused persons
E attacked and assaulted him. On hearing his screams, the
informant, deceased and another brother rushed to the
spot and intervened whereupon they were also
assaulted. The injured persons were taken to the hospital.
Deceased succumbed to injuries after 14 days. Accused
persons were charged of committing offence under
F ss.3021323134 IPC.

Trial Court acquitted the accused persons. On
appeal, High Court observed that the view taken by the
trial Court was not a possible or plausible view and the
G judgment of trial Court was perverse and wholly
untenable. Hence the appeal.

Dismissing the appeal, the Court

H 1030
ABDUL MANNAN v. STATE OF ASSAM 1031

HELD: 1.1. The medical evidence corroborated the A
evidence of five eye witnesses including the statement$
of the injured eye witnesses. The Trial Court gravely erred
in ignoring the most important and material aspect of the
prosecution version. In the impugned judgment, the High
Court carefully marshalled the entire prosecution B
evidence. [Paras 13 and 14] [1036-F-H]

1.2. It is 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, C
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. D
According to the High Court, there was non-reading and
mis-reading of the evidence and the law, as it stands, was
also not appreciated in proper perspective. According to
the High Court, the conclusion arrived at by the Trial Court
can only be termed as perverse because no Court acting E
reasonably and judiciously can ever take such a view.
The High Court was fully justified in setting aside the
acquittal so far as the appellant and the other accused
persons were concerned. The High Court also examined
that this was a clear case of common intention in F
committing the crime. The Court obse~ed that common
intention can develop during the course of an
occurrence. [Paras 15 and 16] [1037-B-F]

Sheoram Singh v. State of. U.P. AIR 1972 SC 2555; G
Joginder Singh v. State of Haryana AIR 1994 SC 461,
referred to.

1.3. The appellant was named in the F.l.R. All the eye
witnesses inclu.ding the injured eye witnesses
H
1032 SUPREME COURT REPORTS [2010] 2 S.C.R.

A categorically named 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
B Court was a plausible or a possible view. The judgment
of the Trial Court was wholly unsustainable. The close
scrutiny and examination of the impugned judgment
show that the High Court took into consideration all
relevant factors in dealing with the appeal from the order
c of acquittal. The impugned order of the High Court is
unexceptionable. [Paras 19 and 20] [1038-E-H]

1.4. The High Court in the impugned judgment
convicted the appellant under Section 304 Part II l.P .C.
and awarded imprisonment for a period of four years and
D to pay a fine of Rupees one thousand each; in default, · '
.. to undergo further imprisonment for a period of one
nionth each. The sentence awarded by the High Court is
just appropriate in the facts and circumstances of the
case. [Para 21] (1039-A-B] '
E
Case Law Reference:
AIR 1972 SC 2555 referred to Para 17
AIR 1994 SC 461 referred to Para 18
F CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 946 of 2002.

From the Judgment & Order dated 22.6.2001 of the High
Court of Gauhati in Govt. Criminal Appeal No. 248 of 1998.
G
Azim H. Laskar, Sachin Das, Rajneesh Singh Abhijit
Sengupta for the Appellant.

Momota Oinam (for Corporate Law Group) for the
Respondent. ·
H
ABDUL MANNAN v. STATE OF ASSAM 1033

The Judgment of the Court was delivered by A

DALVEER BHANDARI, J. 1. This appeal is directed
against the judgment of the Gauhati High Court in Criminal
Appeal No. 248 of 1998 dated 22nd June, 2001.

2. Abdul Mannan, Abdul Salam and Abdul Subhan have B
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 Mannan. C

3. The brief facts, which are necessary to dispose of the
appeal are recapitulated as under:

On 17th February, 1994, one Abdul Kuddus Khan lodged
0
a written First Information Report [for short, 'F.l.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.l.R., namely, Subhan, Abdul Mannan, Abdul Hanan,
Abdul Sukur, Abdul Kurdish and Abdul Salam attacked and E
/ 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 F
injured persons were taken to the hospital and Abdul Karim
succumbed to injuries after fourteen days.

4. The police after usual investigation submitted a charge
sheet against all the six accused persons. The learned G
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.
.. H
1034 SUPREME COURT REPORTS ~201 O] 2 S.C.R.

A 5. In the 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.
B The High Court termed the judgment of the Trial Court as
perverse and wholly untenable.

6. In view of the conflicting judgments, we ourselves looked
into the entire evidence and the relevant documents of the case. -
C 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
D injuries sustained by him were critical in nature. /

7. Abdul 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
E to the deceased.

8. Abdul 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,
F but they did not listen to him. The appellant and the other
accused ran away after causing injuries.

9. Abdul 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
G Hakim stated that he also received injuries on his head and
below the left eye.

10. Abdul Kuddus Khan, P.W.5 also corroborated the
prosecution version and stated that the appellant and others had
H given beating to his brothers Abdul Hakim and Abdul Kalam.
ABDUL MANNAN v. STATE OF ASSAM 1035
[DALVEER BHANDARI, J.]

He also stated that his other brother Abdul Karim came on the A
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 injuries.

11. The learned Additional Sessions Judge, Nagaon,
B
Assam, did not carefully marshal! 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, C
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 tJ
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 E
evidence? The statements of all eye witnesses including the
injured eye witnesses are wholly consistent and are fully
corroborated with the medical evidence.

12. Dr. Pradip Kumar Talukdar, P.W.7 who was posted at F
the Gauhati Medical College Hospital in the Forensic Medicine
Department, performed the post-mortem examination on Abdul
Karim and found the following injuries.

"(i) On larynx and trachea, tracheotomy was done. Old
abrasion on the back of the chest - 10 cm away from the G
root of neck and 5 ems away from the midline left side of
the size 5 cm. x 3 cm.

(ii) Abrasions over left buttock.
H
1036 SUPREME COURT REPORTS [2010] 2 S.C.R.

A (iii) Old abrasion over right leg.

(iv) Lacerated wound over medical aspect of right wrist joint
above the elbow joint. The wound is stitched.

(v) Lacerated wound over the scalp in the parieto-occipital
8 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.

c Depressed communated fracture over both right and left
parieto-occipital region is present.

Membranes of the brain. - Membranes lacerated at place
and sizes vary from 2 x 1.5 cm to 2 cm x 2cm.

D Brain. (i) Lacerated injury over right parietal region of size
·'"'
4 cm x 4 cm x 2 cm.

(ii) lacerated injury over left parietal region of size 4 cm x
2 cm x 1.5 cm.
E (iii) Frontal lobe contusion of size 6 cm x 3 cm of size."

13. In the 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
F 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.
'
1·
·. G 14. In our 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

H
ABDUL MANNAN v. STATE OF ASSAM 1037
[DALVEER BHANDARI, J.]

there is acquittal by theTrial Court and on the aspect of common A
intention.

15. It is 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 8
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- C
. reading of the evidence and the law, as it stands, is also not
appreciated in proper perspective. According 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. In the impugned D
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 E
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.

16. The High Court has also examined that this was a F
clear case of common intention in committing the crime. The
Court observed that common intention can develop during the
course of an occurrence.

17. The High Court placed reliance on Sheoram Singh v.
State of U.P. AIR 1972 SC 2555, in which this Court observed G
as under:

"It 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 H
1038 SUPREME COURT REPORTS [2010] 2 S.C.R.

A finding and hold an accused vicariously liable for the act
of the other accused by invoking Section 34 of the Indian
Penal Code."
18. Reliance was also placed on Joginder Singh v. State
of Haryana AIR 1994 SC 461, in which this Court has
8
observed:
"It 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
c 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
0 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
offence."
E 19. The appellant has been named in the F.l.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
F 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.
G 20. On close 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
H unexceptionable.
ABDUL MANNAN v. STATE OF ASSAM 1039
[DALVEER BHANDARI, J.]

21. The High Court in the impugned judgment convicted A
the appellant as also the accused Abdul Subhan and Abdul
Salam under Section 304 Part II l.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 B
awarded by the High Court is just appropriate in the facts and
circumstances of the case.

22. The appeal, being devoid of any merit, is accordingly
dismissed. The bail bonds of the appellant, who is on bail, are C
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.

D.G. Appeal dismissed. D