STATE OF RAJASTHAN TH. SECY.HOME DEPT.versusABDUL MANNAN & ANR.

•                  [2011] 7 S.C.R. 1099


    STATE OF RAJASTHAN TH. SECY.HOME DEPT.                   A
                            v.
                 ABDUL MANNAN & ANR.
             (Criminal Appeal No. 29 of 2008)
                      JULY 07, 2011
                                                             B
 [DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]

    Penal Code, 1860:

      ss. 3021149, 148, 3241149 and 449 - Communal violence c
- Prosecution case that out of the mob of 50 to 60 persons,
8 to 10 persons armed with weapons forcibly entered the
house of complainant and inflicted injuries to two victims and
the Complainant - Victims succumbed to their injuries in the
hospital - Three eye-witnesses to the incident - Complainant, 0
an injured witness - Trial court convicted and sentenced
accused 'AM', ~·and 'AZ' under Sections 3021149, 148, 3241
149 and 449 -' However, the High Court acquitted the
accused - On appeal held: There was establishment of a
complete chain of everits and clear identification of the E
persons assailing the deceased - Medical evidence
 corroborates the ocular evidence - Cumulative effect of the
 ocular evidence and documentary evidence shows that the
prosecution has been able to establish its case beyond
reasonable doubt - Some discrepancies or some variation
"in minor details of the incident are immaterial - It is F
established that more than five person 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 -
High Court did not appropriately appreciate the material G
witness - Thus, the order of acquittal passed by the High
Court is perverse and is set aside, and that of the trial court
restored.

                           1099                              H
    1100    SUPREME COURT REPORTS                 [2011] 7 S.C.R.•
A       s. 149 - Common Object - Inference of - When -
    Explained.

          Code of Criminal Procedure, 1973 - s. 378 - Appeal
    against acquittal - Scope of interference by Supreme Court
    - General principles - Explained - On facts, order of acquittal
8
    cannot be sustained since if is based on some contradiction
    in the statements of the witnesses while completely ignoring
    the entire case of the prosecution particularly when
    prosecution has been able to prove its case beyond
    reasonable doubt.
c
       According to the prosecution on the fateful day, out
  of the mob of 50-60 persons, 8 to 10 persons forcibly
  entered the house of complainant. These persons were
  armed with knife, pharsi, sword and lathies. They inflicted
D injuries to 'GN', 'HN' and the complainant. 'GN' and 'HN'
  were taken to the hospital and they succumbed to the
  injuries. PW-5 'KL', PW-7 'BA' and PW-4 'MM' witnessed
  the occurrence. FIR was registered. Investigation was
  carried out. The prosecution examined seven witnesses
E including three eye-witnesses. The trial court acquitted
  'H' and 'M' and other two. However, convicted 'AM', 'A'
  and 'AZ.' under Sections 302/149, 148, 324/149 and 449 IPC
  and sentenced them accordingly. The High Court
  acquitted all the accused. Therefore, the appellant-State
F filed the instant appeals.

        Allowing the appeals, the Court
       HELD: 1. The instant case is a fit case for interference
  in the judgment of acquittal recorded by the High Court.
G The judgment of the· High Court is set aside and that of
  the trial court is restored. The finding of guilt and the
  quantum of punishment awarded by the trial court is
  concurred with. [Para 23] [1128-C]

        2.1. Against an order of acquittal, an appeal by the
H
•STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1101
           ABDUL MANNAN & ANR.

State is maintainable to this Court only with the leave of       A
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 treated as an         B
absolute right subject to the provisions of Articles 134 (1)
(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          c
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            D
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
favourable to the accused, may be adopted by the Court.
However, this principle must be applied keeping in view          E
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      F
 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 reasonable doubt. The                      G
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 eviden~e led by the prosecution,
in conjunction with the chain of events as are stated to         H
    1102   SUPREME COURT REPORTS               [2011] 7 S.C.R.
                                                              •
A 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.
B [Para 9) [1114-C-H; 1115-A-C]

       2.2. Emphasizing that expressions like 'substantial
  and compelling reasons', 'good and sufficient grounds',
  'very strong circumstances', 'distorted conclusions',
C 'glaring mistakes', etc 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
D 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 13n order of acquittal. [Para 12) [1118-A-C]

E      State of Madhya Pradesh v. Bacchudas (2007) 9 SCC
  135: 2007 (1 )SCR 671; State of Kera/a and Anr. v. C. P. Rao
  decided by S.C. on16.05.2011; Sanwat Singh and Ors. v.
  State ofRajasthan AIR 1961 SC 715; Suman Sood v. State
  of Rajasthan (2007) 5 SCC 634: 2007 (6) SCR 499;
F Chandrappa v. State of Karnataka (2007) 4 SCC 415: 2007
  (2) SCR 630 - referred to.
       3.1. Three eye-witnesses PWs.4, 5 and 7 were found
  to be truthful and reliable witnesses by the trial court
  whereas those very witnesses were held to be
G untrustworthy witnesses by the High Court. Though the
  High Court made a reference to the injuries inflicted upon
  the body of the deceased as detailed by PW2-doctor in
  his report, there is no discussion in his statement, in
  regard to nature of injuries inflicted and the weapon used
H for inflicting such injuries. There is also no discussion in
•   STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1103
              ABDUL MANNAN & ANR.

the judgment of the High Court on the comparative             A
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 which renders the               B
judgment of the High Court perverse, and provides
strong reas-ons for this Court to interfere with the
judgment of acquittal. Thus, the order of acquittal can
hardly be sustained where it is based just on some
contradiction in the statements while completely ignoring     c
the entire case of the prosecution particularly when the
prosecution has been able to prove its case beyond
reasonable doubt. [Para 13] [1118-D-H; 1119-A-B]
     3.2. PW2, who was posted as SMO at medical centre,
 had conducted the postmortem on the body of both the         D
'deceased persons. The injuries on the body of the
 deceased 'HN' aged 70 years and 'GN' aged 72 years
were recorded by PW2 in his report. [Para 13] [1119-B-C]
     3.3. PW 6-lnvestigating Officer ,was the SHO of police   E
Station. According to him, he was busy in maintaining law
and order situation when he received the information that
assailants had entered the house of one 'GN' and had
beaten those inside; and that the latter had been taken
to the hospital. PW7, complainant who is the most
material witness of the prosecution, had made the report      F
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            G
door and eventually broke the door and PW7 ran away
for safety. 'A', 'M' 'H', and J' came inside and some other
persons who he could not identify started assaulting 'GN'
and 'H' with lathi and pharsi which he witnessed from his
room. According to PW7, the injuries were caused on the       H
   1104    SUPREME COURT REPORTS               [2011] 7 S.C.R.
                                                                 •
A 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 'AZ' and 'A' in court and stated that these
B persons had caused injuries to the deceased. PW 7
  referred to the place of occurrence, preparation of site
  plan and medical report by the doctor, he admitted his
  signature on all these documents. It appears from the
  record that during recording of statement of PW 7, the
c 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 part
  of Exh. P-9, the witness stated that after identifying the
  accused, he had stated the name of the accused as 'AM'
0
  to the. police. He then stated that 'AM' was also there,
  however he could not identify him definitely. At that stage,
  he was declared hostile. Cross examination of this
  witness by the public prosecutor as well as by the
  defence counsel did not have an adverse impact on the
E 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.
  According to him, the persons who had assaulted him
F 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 was
  completely in consonance with the case of the
G prosecution but when he appeared in the Court for
  further cross-examination, he tried to 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
H with the statement ·of the Investigating Officer.
•   STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1105
              ABDUL MANNAN & ANR.

Establishment of· a complete chain of events and clear        A
                   ' persons assailing the deceased lead
identification of the
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          B
of the prosecution which otherwise stands proved by the
statements of PW4, PW5, PW6 and PW2. [Para 16] [1122-
A-H; 1123-A-E]

      3.4. The strain on PW 7 due to the incident cannot      C
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 when the
case was adjourned for further cross-examination when.
he made a statement at variance with his earlier
statement in Court as well as his statement recorded          D
under Section 161 Cr.P.C. 1 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. The statements made by PW 7 fully
aids the case of the prosecution and his statement was        E
 recorded on the adjourned :date before the trial court
which is at variance cannot be treated as gospel truth.
 In fact the bare reading of the statement clearly shows
this fact. Even if the statement of PW7 is excluded from
consideration, then identity of the accused is still fully    F
established by the statements of PW3, PW4, PWS and
 PW6. There is no reason, whatsoever advanced, as to
why PW4 and PWS (neighbours of the deceased) who are
otherwise independent witnesses, and the doctor would
involve the accused falsely. There is no animosity            G
between the parties, and in fact according to these
witnesses, they knew the accused particularly 'AZ', 'A'
and 'AM' 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       H(
   1106    SUPREME COURT REPORTS             [2011] 7 S.C.R.
                                                                •
A and are compelling evidence of the same. It is not
  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
B 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 prosecution witnesses. The injury
  on the head duly finds corroboration from the statement
c of the doctor. 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
0 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
E their doors, went to 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
F that there were some other persons whom they could not
  identify. However, both these witnesses and complainant
  clearly identified the persons who had entered and
  assaulted the deceased persons. Though PW 7 fully
  supported the case of the prosecution that he was also
G assaulted by these persons, he did speak in a different
  voice the next day before the court. Thus, the cumulative
  effect of the ocular evidence and documentary evidence
  is that the prosecution has been able to establish its case
  beyond reasonable doubt. [Paras 17 and 18] [1123-F-H;
H 1124-A-H; 1125-A-C]
•    STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1107
               ABDUL MANNAN & ANR.

       3.5. In the instant case, out of the mob of 50-60          A
. 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 'marol maro!' and thereafter, had inflicted the
  injuries upon the body of the deceased. The common              B
  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             c
  inflicting injuries even after the deceased had fallen to the
  ground. The efforts of the complainant to save them were
  in vain and he himself suffered certain injuries. Thus, it
  has been established that more than five persons
  constituted an unlawful assembly and in furtherance to          D
  their common object and intent, assaulted and caused
  injuries to vita.I parts of the bodies of the deceased,
  ultimately resulting in their death. Therefore, there is no
  merit in the contention of the accused that there was no
  common object to commit murder and the trial court
  applied the law correctly. [Para 20] [1127-A-E]                 E.

       Shiva/ingappa Kallayanappa v. State of Kamataka (1994) ·
    Supp 3 SCC 235 - distinguished.

        State of U.P. v. Mohd. lkram and Ors. decided by S.C.     F
    on 13th June, 2011 - referred to.

         3.6. 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 assembly; the second part deals with commission G
    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
                                                                 H
    1108    SUPREME COURT REPORTS                   [2011] 7 S.C.R.
                                                                      •
A 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. In
  the instant case, accused have inflicted the injuries after
  raising slogan and have commonly participated in
B committing offence which resulted in the death of the
  deceased. [Paras 21 and 22) [1127-F-H; 1128-A-B]

         Lokeman Shah v. State of WB. (2001) 5 SCC 235: 2001
    (2) SCR 1095 - referred to.

c                        Case Law Reference:
        2007 (1) SCR 671             Referred to.         Para 10
        AIR 1961 SC 715              Referred to.         Para 11
        2007 (6) SCR 499             Referred to.         Para 12
D
        2007 (2) SCR 630             Referred to.         Para 12
        (1994) Supp 3 sec 235 Distinguished.              Para 20
        2001 (2) SCR 1095            Referred to.         Para 22
E
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 29 of 2008.

        From the Judgment & Order dated 15.3.2005 of the High
    Court of Rajasthan at Jaipur Bench, Jaipur, in D.S. Crl. Appeal
F   No. 573 of 1999.

       Jasbir Singh, Malik, V. Sushant, Ram Naresh Yadav, Milind
    Kumar for the Appellant.

G       Syed Ahmad Saud, Shuaib Ud Din, Shakil Ahmed Syed,
    Ch. Shamsuddin Khan, Rameshwar Prasad Goyal for the
    Respondent.

        The Judgment of the Court was delivered by

;
•    STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1109
               ABDUL MANNAN & ANR.

         SWATANTER KUMAR J. 1. These appeals are directed                 A
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                B
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:

          (a)   For committing an offence under Section 302/149
                IPC, all three accused were awarded rigorous
                                                                          c
                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         D
                awarded one year's rigorous imprisonment.

          (c)   Under Section 324/149 IPC, all the accused were
                awarded one year's rigorous imprisonment each
                and
                                                                          E
          (d)   Lastly, under Section 449 IPC, they were awarde9
                three years' of rigorous imprisonment each along
                with fine of Rs.1,000/- each, in default of payment
                of fine, to undergo simple imprisonment for three
                months.                                                   F

         2. 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       G
    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:
                                                                          H
    1110   SUPREME COURT REPORTS                   [2011] 7 S.C.R.
                                                                        •
A      "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
B      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 (PWS) deposed
c      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
       Tractorw«;ila, Zabbar Tractorwala, Mannan, Hanif and
       Mehboob. In the cross examination he however stated that
       he did not narrat the names of these persons to police.
D
       Satya Narayan (PW-7) in his deposition stated that a mob
       of 60 persons attacked the house. Afzal, Motal, Lakhara,
       Hanif, Mehboob, Zabbar Ahmaa 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
E
       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
F      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 Mahesh (PW-4), Kanhaiya Lal
G      (PWS) 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
H      could only able to establish that an unruly mob of Muslims
...
~


      STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1111
      ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.]

        attacked the house of deceased but could not prove                   A
        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.     B
        Learned trial judge in our opinion did not properly
        appreciate the prosecution the evidence and committed
        illegality in convicting and sentencing the appellants.

        1O. For these reasons we allow the instant appeals and               C
        set aside the judgment dated September 7, 1999 of the
        learned Special Judge $hri 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              D
        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."
                                                                             E
      3. State of Rajasthan aggrieved by the said judgment of
  acquittal, preferred the present appeal before this Court.

       4. 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                 F
  with law.

       5. 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 G
  morning the complainant had been standing outside his house
  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 H
    1112    SUPREME COURT REPORTS                 [2011] 7 S.C.R.


A 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
B 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 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
c 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,
  Babula! Aggarwal and Mahesh Mukar Kacholiya had also
D 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 them declared both of them dead.
  Resultantly, FIR was registered on 9th December, 1992 at
E 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
F 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
G only to the three accused namely Abdul Zabbar, Afzal and
  Abdul Mannan.

       6. The prosecution had examined seven witnesses
  including three eye-witnesses (namely, PW7 and complainant
H Satyanarain, PW4 Mahesh and PW5 Kanhiyalal) as well as
STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1113
ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.]

PW2 medical examiner Dr. Chandra Prakash, and the                    A
investigating officer, PW3 Shri Rajendra Ojha. The incriminating
evidence against the accused was put to .Jhe 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 commission of          B
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           c
 he had not been present at the place of occurrence. Similar
stand was taken by Zabbar.

     7. 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        D
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.            E
     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              F
     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 be absolutely         G
     fabricated, because such type of evidence can be
     prepared easily."

     8. 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           H
    1114     SUPREME COURT REPORTS                  [201 11] 7 S.C.R.

A 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 PW? were untruthful witnesses and that
  the trial court had not properly appreciated the prosecution
B evidence, and therefore, committed an illegality in convicting
  and sentencing the accused.

         9. 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
C   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
D   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 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
E   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
F   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 favourable to the accused,
G   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
H   of evidence is apparent on the face of the record then the Court
 STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1115
ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.]

can interfere in the judgment of acquittal to ensure that the ends     A
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
reasonable doubt. The presumption of innocence and. the right          B
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   c
can interfere even with the judgment of acquittal. The judgment
of acquittal might be based upon misappreciation of evidence
or apparent violation of settled canqns of criminal
jurisprudence.                                         ···

      10. We may now refer to some judgments of this Court on D
this is.sue. In State of Madhya Pradesh v. Bacchudas [(2007)
9 sec 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. E
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:
                                                                     F
      "9.There is no embargo on the appellate court reviewing
      the evidence upon which 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 G
      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 H
    1116     SUPREME COURT REPORTS                   [2011] 7 S.C.R.


A         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
B       · appellate court to reappreciate the evidence where the
          accused has been acquitted, for the 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
c         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
D
          interference.

              These aspects were highlighted by this Court in
        Shivaji Sahabrao Bobade v. State of Maharashtra,
        Ramesh Babula/ Doshi v. State of Gujarat, Jaswant
E       Singh v. State of Haryana, Raj Kishore Jha v. State of
        Bihar, State of Punjab v. Kamai/ Singh, State of Punjab
        v. Pho/a Singh, Suchand Pal v. Phani Pal and Sachchey
        Lal Tiwari v. State of U.P.

F       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.
G         11. In a very recent judgment, a Bench of this Court in
    Criminal Appeal No. 1098 of 2006 titled State of Kera/a 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
H
STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1117
ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.]

case of Sanwat Singh & Ors. v. State of Rajasthan [AIR 1961          A
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          8
    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   C
    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 then was) culled out the principles as follows:

    The foregoing discussion yields the following results: (1)       D
    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 LR. 61
    I.A. 398] afford a correct guide for the appellate court's
    approach to a case in disposing of such an appeal; and           E
    (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          F
    review the entire evidence and to come to its own
    conclusion; but in doing so it should not only consider every
    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      G
    facts, but should also express those reasons in its
    judgment, which lead it to hold that the acquittal was not
    justified."

      12. Reference can also be usefully made to the judgment
of this Court in the'case of Suman Sood v. State of Rajasthan,       H
    1118     SUPREME COURT REPORTS                    (2011] 7 S.C.R.
                                                                           ..........
A ((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
B circumstances', 'distorted conclusions', 'glaring mistakes', etc
  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
c 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.

          13. In light of the above stated principles, we revert to the
D    facts of the present case. As already noticed, three eye
    witnesses PWs.4, 5 and 7 were found to be truthful and 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
E   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
F   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
    nature of injuries inflicted and the weapon used for inflicting such
    injuries. There is also no discussion in the judgment of the High
G   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
H   judgment of the High Court perverse, and provides strong
•STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1119
ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.]

reasons for this Court to interfere with the judgment of acquittal.    A
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.ignoring the entire case of
the prosecution particularly when the prosecution has been able
to prove its case beyond reasonable doubt. Dr. Chandra                 B
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       c
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.                D

     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           E
     brain matter was coming out.

     Ill. Incised wound in the size of 3 inch x 2/10 into% inch on
     the upper arm behind the shoulder and the blood was
     oozing out from it.
                                                                       F
     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.
                                                                       G
      All the aforesaid injuries were of before death. The injury
      Nos. 1 and 2 on the 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 i.s           H
    1120        SUPREME COURT REPORTS                  [2011] 7 S.C.R.


A       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
B
       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
c                penetrating up to bone and even up to the brain.
                 And the brain Metter (sic) was coming out this injury
                 was on the center of the head from where the blood
                 was oozing. Both the edges of the wound were
                 sharp.
D
           2.     Lacerated wound in size of 3 inch x Yc 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.
E
                 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
F                before the death and in general nature were
                 sufficient to cause the death of Govind. The death
                 of Govind was 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
G
                 the cause of death at C to D."

       14. 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
H house. Some of them held swords in their hands, some of them
STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1121
ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.]

lathies and some held pharsi and once they reached the house         A
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. He identified the persons who jumped inside the house,
as Mahboob, Haneef and Abdul Zabbar. Even in the Court, he           B
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                 c
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.

     15. Corroborating the statement of PW4, Kanhaiya Lal            D
(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            E
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        F
were identified by the witness in Court. Later on, when the
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                G
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.                                         H
    1122    SUPREME COURT REPORTS                [2011] 7 S.C.R.   •
A        16. PW 6-Radhey Shyam is the Investigating Officer and
    was the SHO of police Station, Malpura. According to him, he
    was 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
B   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
c   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 Ahmad
    Tractorwala came inside and some other persons who he could
    not identify started assaulting Govind Narain and Hari Narain
0
    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
E   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. P-8. It appears from the
F   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,
G   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 •
H   prosecutor as well as by the defence counsel did not have an.
•STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1123
 ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.]

adverse impact on the main case of the prosecution. In his              A
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            B
tried to wriggle out of his earlier statement that he could identify
the accused. It needs to be rioticed 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             c
 March, 1999, he tried to 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
                                                                        0
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.                      E

     17. 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             F
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         G
by the police but was written in his own hand and duly signed
by him which he admitted even in his statement in Court.

      18. Satyanarain (PW 7) has also made statements which
fully aid the case of the prosecution and his statement recorded
                                                                        H
    1124    SUPREME COURT REPORTS                 [2011) 7 S.C.R.
                                                                    •
A. 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
B   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
c   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
0
    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
E   body of the deceased and were duly identified by the
    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
F   variation.s 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
G   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
    the roof of the houses which were adjacent to the house of the
    deceased and watched some members of the mob, of whom
H   they could identify a few, assault the deceased. This statement
•STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1125
 ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.]

clearly shows the trustworthiness of these witnesses as they       A
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     B
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 evidence
and documentary evidence is that the prosecution has been
able to establish its case beyond reasonable doubt.                c
     19. 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. /kram & Ors. decided on 13th June, 2011
where by upsetting the judgment of acquittal passed by the High
Court, this Court held as under:                                   D

    "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           E
    brought them to the spot at that dead of night. The
    accused were 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    F
    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         G
     (DW.1), examined by Mohd. lqram, 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    H
    1126    SUPREME COURT REPORTS                  [2011] 7 S.C.R.
                                                                        •
A       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 contrary to the
        evidence on record or its entire approach in dealing with
        the evidence is patently illegal, leading to miscarriage of
B       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
c       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
D       strong that it points unmistakably to the guilt of the
        respondents and is incapable of explanation of any other
        hypothesis that of their guilt. Therefore, findings of fact
        recorded by the High Court are perverse, being based on
        irrelevant considerations and inadmissible material."
E
       20. Learned counsel for the accused had placed reliance
  upon the judgment of this Court in Shiva/ingappa
  Kal/ayanappa v. State of Karnataka [1994 Supp 3 SCC 235]
  to contend that there was no common object to commit murder.
F 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 A 1 and A2 were armed
G 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 A 1 and A2 dealt blows to the head with the butt
  end of their axes which proved to be fatal. Convicting A 1 and
  A2 under S. 302/149, IPC and A3-5 under S. 326/149, the
H
•   STATE OF RAJASTHAN TH. SECY.HOME DEPT. v. 1127
    ABDUL MANNAN & ANR. [SWATANTER KUMAR, J.]

  Court held that taking all the circumstances of the case into         A
  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 of the deceased. Out of the          B
  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             C
  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   D
  fallen to the ground. The efforts of Satyanarain to save them
  were in vain 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    E
  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.

         21. Section 149 consists of two parts; the first deals with    F
    the commission of an offence by any member of an unlawful
    assembly in prosecution of the common object of that
    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           G
    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.
                                                                        H
    1128    SUPREME COURT REPORTS                  [2011] 7 S.C.R.
                                                                        •
A         22. The final point is the common object. The case of
    Lakeman Shah v. State of WB. [(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 after raising slogan and have commonly participated
8   in committing offence which resulted in the death of the
    deceased.

       23. 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
C State are allowed, t~e 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.

o        24. 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
E   the judgment of conviction and punishment awarded by the trial
    court.

          25. A copy of the judgment be sent to the concerned CJM
    for information and action.

F N.J.                                            Appeals allowed.