STATE OF RAJASTHANversusISLAM

                         (2011] 6 S.C.R. 988


A                      STATE OF RAJASTHAN
                                   v.
                                ISLAM
                 (Criminal Appeal No. 1318 of 2005)

                            MAY 24, 2011
B
     [ASOK KUMAR GANGULY AND DEEPAK VERMA, JJ.]

        Penal Code, 1860 - ss. 302 and 304 (Part-II) - Accused
  hit the victim on his head with deadly weapon, resulting in his
C death - Convicted u/s. 302 and sentenced to life
  imprisonment by trial court - High Court converted the
  sentence from s. 302 to s. 304 (Part-II) as accused had already
  undergone detention for more than six years - On appeal held:
  Order of conversion of sentence not justified - In the
D background of the consistent evidence, it cannot be said that
  accused had no intention to kill the deceased - There was
  some pre-meditation on the part of accused when he went to
  his house after a minor scuffle and came back armed with a
  deadly weapon and in furtherance of that intention struck the
E deceased with that weapon repeatedly at a vital part of his
  body - Also, none of the ingredients to bring the case under
  exception (4) to s. 300 proved - Thus, order of High Court is
  set aside and that of the trial court is restored.

        Constitution of India, 1950 - Article 136 - Order of
F acquittal passed by the High Court - Interference with - Held:
    Is permissible, when consideration by the High Court is,
    misconceived and perverse.

      Administration of criminal justice - Possibility of two views
G - One pointing to the guilt of the accused and other his
  innocence - Courts to adopt view in favour of accused.

        It is alleged that altercation took place between
    respondent No. 1 and others who had assembled for a
H                                988
          STATE OF RAJASTHAN v. ISLAM                     989


meeting. Respondent No. 1 and others went back home              A
and came back armed with Farsa. Respondent No. 1 hit
'J' repeatedly on his head with Farsa. The trial court
convicted respondent No. 1 under Section 302 IPC and
sentenced him to life imprisonment. The High Court set
aside the conviction of respondent No. 1 under Section           B
302 and converted it under Section 304 Part-II IPC
considering that the relations between respondent No. 1
and 'J' were cordial; that only one blow by respondent
No. 1 on the head of 'J' proved fatal; and that respondent
No. 1 had already undergone detention for more than six          c
years. Therefore, the appellant filed the instant appeal.

    Allowing the appeal, the Court

     HELD: 1.1 When this Court exercises its jurisdiction
under Article 136, it definitely exercises a discretionary       D
jurisdiction but such discretionary jurisdiction has to be
exercised in order to ensure that there is no miscarriage
of justice. If the consideration by the High Court is
misconceived and perverse, there is nothing in law which
prevents this Court from exercising its jurisdiction under       E
Article 136 against an order of acquittal when such
acquittal cannot be sustained at all, in view of the
evidence of record. [Para 15] [996-F-H]

    1.2 In criminal cases if two views are possible, one
                                                                 F
pointing to the guilt of the accused and the other to the
innocence, the view which is favourable to the accused
should be adopted. The paramount consideration of the
court is to ensure that miscarriage of justice is prevented.
A miscarriage of justice which may arise from acquittal of the
guilty is no less than from a conviction of an innocent. The     G
principle to be followed by appellate court considering an
                                                                         ~·
appeal against an order of acquittal is to Interfere only            >        ·"




when there are compelling and substantial reasons to do so.
[Paras 16 and 17] [897-A-C]
                                                                 H
    990     SUPREME COURT REPORTS               [2011] 6 S.C.R.

A      1.3 In reversing an acquittal, this Court keeps in mind
  that presumption of innocence in favour of the accused
  is fortified by an order of acquittal and if the view of the
  High Court is reasonable and founded on materials on
  record, this Court should not interfere. However, if this
B Court is of the opinion that the acquittal is not based on
  a reasonable view, then it may review the entire material
  and there would be no limitation on this Court's
  jurisdiction under Article 136 to come to a just decision
  quashing the acquittal. [Paras 19, 20] [998-C-D]
c      2.1 It cannot be said that respondent No. 1 had no
   intention to kill the deceased. It may be true that initially
   there was no pre-mediation or intention of respondent
   No. 1 but the intention can develop on the spot and in
  the instant case, there is some amount of pre-meditation
D on the part of respondent No. 1 when after attending the
  assembly in which there was a minor scuffle, respondent
  No. 1 went to his house and came back to the place of
  occurrence armed with a Farsa, a deadly weapon and in
  furtherance of that intention struck the deceased with that
E weapon repeatedly and at a vital part of his body and
  caused very grievous injuries. In the background of this
  consistent evidence against respondent No. 1, the
  conversion of the conviction of respondent No. 1 from
  Section 302 IPC to Section 304 (Part II) IPC cannot be
F sustained and the entire approach of the High Court is
  misconceived, if not perverse. The judgment and order
  of conviction passed by the trial court is approved and
  the same is restored. [Paras 12 and 13] [995-D-H; 996-A-
  B)
G
      2.2 In order to bring a case under exception (4) to
  Section 300 IPC, the evidence must show that the
  accused acted without any pre-mediation and in a heat
  of passion and without having taken undue advantage
H and he had not acted in a cruel or unusual manner. Every
         STATE OF RAJASTHAN v. ISLAM                  991

one of these circumstances is required to be proved to       A
attract exception (4) to Section 300 IPC and it is not
sufficient to prove only some of them. In the facts of the
case, none of the said ingredients have been proved from
the evidence to bring the case under exception (4) to
Section. 300 IPC. The High Court's finding to the contrary   B
is totally against the evidence on record. (Paras 13 and
14] [996-B-D]
     State of UP. vs. Sahai AIR 1981 SC 1442; State of MP
vs. Bachhudas (2007) 9 SCC 135; State of Punjab vs.
Parveen Kumar (2005) 9 SCC 769; Rajesh Kumar vs. ·C
Dharamvir 1997(4) SCC 496; State of UP vs. Abdul 1997(10)
SCC 135; State of UP vs. Premi 2003(9) SCC 12; State of
TN vs. Suresh 1998(2) SCC 372; State of MP vs. Pa/tan
Mal/ah 2005(3) SCC 169; Gaurishanker Sharma vs. State of
UP AIR 1990 SC 709; State of Maharashtra vs. Pimple AIR . D
1984 SC 63; State Delhi Administration vs. Laxman Kumar
1985 (4) SCC 476; Dharma v Nirmal Singh alias Bittu & Anr.
1996 (7) sec 471 - relied on.
                    Case Law Reference:                      E
    AIR 1981 SC 1442          Relied on.         Para 18
    (2007) 9 sec 135          Relied on.         Para 18
    (2005) 9 sec 769          Relied on.         Para 18
                                                             F
    1997(4) sec 496           Relied on.         Para 18
    1997(10) sec 135          Relied on.         Para 18
    2003(9) sec 12            Relied on.         Para 18
                                                             G
    1998(2) sec 372           Relied on.        · Para 18
    2005(3) sec 169           Relied on.         Para 18
    1979 (2) sec 291          Relied on.         Para 18
                                                             H
    992      SUPREME COURT REPORTS               [2011] 6 S.C.R.


A         AIR 1990 SC 709           Relied on.         Para 18

          AIR 1984 SC 63            Relied on.         Para 18

          1985 (4) sec 476          Relied on.         Para 20

          1996 (7) sec 471          Relied on.         Para 20
B
        CRIMINAL APPELALTE JURISDICTION: Criminal Appeal
    No. 1318 of 2005.

          From the Judgment & Order dated 19.2.2003 of the High
c Court of Judicature for Rajasthan at Jaipur Bench, Jaipur in DB
    Criminal Appeal No. 401 of 1997.

        Dr. Manish Singhvi, AAG, Ansar Ahmad Chaudhary for the
    Appellant.

D       C.L. Sahu, Rajendra Sahu, Hema Sahu, Rishabh Sahu for
    the Respondents.

          The Judgment of the Court was delivered by

          GANGULY, J. 1. Heard learned counsel for the parties.
E
       2. The State of Rajasthan is in appeal before us impugning
  the judgment dated 19.2.2003 passed by the High Court
  whereby the High Court by its judgment disposed of two
  appeals, being Criminal Appeal No. 401 of 1997 and Criminal
F Appeal No. 380 of 1997. The appeal of the State is in respect
  of Criminal Appeal No. 401 of 1997. By the judgment of
  acquittal rendered by the High Court in the aforesaid criminal
  appeal, it inter alia, confirmed the conviction of the other
  accused, namely, Rujdar, llias, Muvin, and Manna under Section
G 323 IPC but modified their sentence awarded to them by
  enhancing the fine instead of imposing imprisonment.

      3. The appeal of the accused Asru, Guncheri,
  Mohammada, Kalto, Roshan and Titta was allowed and they
  were acquitted from the charges under Sections 148 and 336/
H 149 IPC.
               STATE OF RAJASTHAN v. !SLAM                      993
                 [ASOK KUMAR GANGULY, J.]

          4. So far as Islam is concerned, the High Court set aside    A
    his conviction under Section 302 ~nd converted it under Section
    304 Part II IPC considering that Islam had already undergone
    detention for more than six years. The High Court also imposed
    a fine of Rs. 30,000(Rupees Thirty Thousand) on Islam and held
    tha_t the same would meet the ends of justice.                     B

        5. Impugning that judgment, when the State filed Special
    Leave Petition before this Court, a Bench of this Court, while
    granting leave, passed the following order:-

         6. "Delay condoned.                                           c
         Leave granted to the extent of respondent No. 1-lslam only.
    As to other respondents the special leave petition is dismissed.

          Issue warrants bailable in an amount of Rs. 10,000/- only
                                                                       D
    requiring production of accused- respondent no. 1 before the
'   Trial Court on the dates to be appointed by it or before this
    Court as directed. The bail bonds shall be furnished· to the
    satisfaction of the Trial Court."

         7. Therefore, the purpose of our examination is confined      E
    to the question whether in passing the order of conversion of
    sentence from Section 302 IPC to Section 304 Part II IPC in
    respect of respondent no. 1, the High Court exercised its
    judicial discretion properly. It may be mentioned in this
    connection that the Trial Court, namely, Court of Additional       F
    District & Sessions Judge, Deeg convicted respondent no. 1
    under section 302 IPC and convicted him to undergo life
    imprisonment and a fine of Rs. 1000/-, in default, to further
    undergo imprisonment of six months.
                                                                       G
         8. Learned counsel for the appellant while taking us though
    the judgment of the Trial Court drew our attention to the
    evidence of PW 7, PW 9, PW 12, PW 16 ad PW 17 and
    submitted that these are all eye-witnesses and there is
    consistent evidence of these eye-witnesses about the
    involvement of respondent no. 1 in the commission of crime,        H
    994         SUPREME COURT REPORTS              [2011] 6 S.C.R.


A namely, the murder of Jenu. The material facts relevant for our
  consideration are that on the date of the incident, i.e.
  18.3.1988, a meeting was held in the morning for raising some
  funds for repairing the mosque and in the said meeting, an
  altercation took place between respondent no. 1 and various
B other persons of the area who assembled for the meeting. One
  of the person assembled there told PW 7 that he ha.e_ been
  treacherous in misappropriating public funds for repair ot:•.yie
  mosque. There was a minor shuffle amongst those who had
  assembled there. It is the consistent evidence of the witnesses
c mentioned above that after that, respondent no. 1 along with
  others went home and came back armed with a 'Farsa'. It is
  also the consistent evidence that respondent no. 1 hit Jenu thrice
  on his head with the Farsa. This evidence has been
  consistently repeated by PW 7, PW 9, PW 16 and PW 17. PW
0
  12 said that Islam hit Jenu with Farsa on his head but the
  number of times had not been mentioned by him.

        9. Appreciating the evidence of these witnesses, the Trial
  Court reached the finding that respondent no. 1 can be held
  guilty under Section 302 IPC and accordingly found him guilty
E under Section 302 !PC and sentenced him for life imprisonment.
  The High Court has noted the injuries on the deceased. The
  injuries on the deceased are as follows:

           1.    One incised wound 7 cm X 1 cm X bone deep on
F                left frontal region of head.

           2.    One incised wound 6.5 cm X 1 cm X bone deep
                 on Rt. Frontal region of head.

           3.    One incised wound 8 cm X 1 cm X bone deep on
G                Rt. Parietal region of head.

          10. PW 3 Dr. Ashok Kumar Gupta in his evidence said
    the cause of death of the deceased was in view of the head
    injury leading to compression of Brain and Corna. From the
H
           STATE OF RAJASTHAN v. ISLAM                        995
             [ASOK KUMAR GANGULY, J.)

nature of the injuries, it is clear that they were inflicted by a    A
deadly and sharp weapon and undoubtedly Farsa is one such
weapon.

     11. In the context of this evidence, the judgment of the High·
Court is rather surprising. The High Court while converting the
                                                                    8
conviction of the respondent no. 1 from Section 302 IPC to
Section 304 Part-II in paragraph 12 held that the relations
between respondent no. 1 and the deceased Jenu were cordial
and only one blow was caused by Islam on the head of the
deceased and that proved fatal. The High Court further said that
the injury inflicted by respondent no. 1 was not pre-meditated C
and the respondent no. 1 did not take any undue advantage or .
nor acted in a cruel manner and as such, the case of
respondent Islam is covered by Explanation IV appended to
Section 300 IPC and could only be held guilty under Section
304 Part II IPC.                                                    D

       12. We fail to appreciate the aforesaid reasoning by the
High Court in the context of the consistent evidence discussed
above. It cannot be said that respondent no. 1 had no intention
to kill the deceased. After attending the assembly in which there    E
was a minor scuffle, respondent no. 1 Islam admittedly went to
his house and came back armed with a Farsa which is a deadly
weapon. Thereafter, he hit the deceased repeatedly on the
head, a vital part of human body, with Farsa and caused very
grevious injuries. It may be true that initially there was no pre-   F
mediation or intention of the respondent no. 1 but it is well
settled that intention can develop on the spot and in the instant
case, there is some amount of pre-meditation on the part of
respondent no. 1 when he had gone to his house and came
back to the place of occurrence armed with a deadly weapon           G
and in furtherance of that intention struck the deceased with that
weapon repeatedly and at a vital part of his body. In the
background of this consistent evidence against respondent no.
1, this Court is of the opinion that the conversion of the
conviction of respondent Islam from Section 302 IPC to Section       H
    996      SUPREME COURT REPORTS                   [2011] 6 S.C.R.

A 304 Part II IPC cannot be sustained and the entire approach
  of the High Court is misconceived, if not perverse.
        13. The finding of the High Court that the act of the
  respondent no. 1 is coming under the fourth exception cannot
  be sustained at all. It is clear that respondent no. 1 did not strike
6
  the deceased at the first instance, but he struck him after an
  interval of time since he left the place of occurrence, went to
  his home and then came back armed with a Farsa. In order to
  bring a case under exception (4) to section 300 IPC, the
  evidence must show that the accused acted without any pre-
C mediation and in a heat of passion and without having taken
   undue advantage and he had not acted in a cruel or unusual
  manner. Every one of these circumstances is required to be
  proved to attract exception (4) to section 300 IPC and it is not
  sufficient to prove only some of them.
0
        14. In the facts of this case, none of above ingredients have
  been proved from the evidence to bring the case under
  exception (4) to Section 300 IPC. The High Court's finding to
  the contrary is totally against the eviden1.'3 on record.
E
        15. The learned counsel for respondent no. 1 has urged
  that this Court should not interfere in exercise of its jurisdiction
   under Article 136 of the Constitution when an order of acquittal
  was granted by the High Court and respondent no. 1 had
  suffered imprisonment for 6 years. There is no such absolute
F proposition in law as has been said to be advanced by the
  learned counsel for respondent no. 1. When this Court
  exercises its jurisdiction under Article 136, it definitely exercises
  a discretionary jurisdiction but such discretionary jurisdiction
  has to be exercised in order to ensure that there is no
G miscarriage of justice. If the consideration by the High Court is
  misconceived and perverse as indicated above, there is
  nothing in law which prevents this Court from exercising its
  jurisdiction under Article 136 against an order of acquittal when
  such acquittal cannot be sustained at all, in view of the evidence
H of record.
           STATE OF RAJASTHAN v !SLAM                       997
             [ASOK KUMAR GANGULY, J.]

     16. The golden thread which runs through the                  A
administration of justice in criminal cases is that if two views
are possible, one pointing to the guilt of the accused and the
other to the innocence, the view which is favourable to the
aecused should be adopted. The paramount consideration of
the court is to ensure that miscarriage of justice is prevented.   B
A miscarriage of justice which may arise from acquittal of the
guilty is no less than from a conviction of an innocent.

     17. The principle to be followed by appellate court
considering an appeal against an order of acquittal is to          C
interfere only when there are compelling and substantial
reasons to do so.

      18. Thus, in such cases, this Court would usually not
interfere unless
                                                                   D
    a. The finding is vitiated by some glaring infirmity in the
    appraisal of evidence. (State of U.P. Vs. Sahai, AIR 1981
    SC 1442 at paras 19-21)

    b. The finding is perverse. (State of MP Vs. Bachhudas,        E
    (2007) 9 SCC 135 at para 10 and State of Punjab Vs.
    Parveen Kumar (2005) 9 SCC 769 at para 9)

    c. The order suffers from substantial errors of law and fact
    (Rajesh Kumar Vs. Dharamvir 1997(4) SCC 496 at para
    5)                                                             F
    d. The order is based on misconception of law or
    erroneous appreciation of evidence (State of UP Vs.
    Abdul 1997(10) SCC 135; State of UP Vs. Premi 2003(9)
    sec 12 at para 15)                                             G
    e. High Court has adopted an erroneous approach
    resulting in miscarriage of justice (State of TN Vs. Suresh
    1998(2) SCC 372 at paras 31 and 32; State of MP Vs.
    Pa/tan Mal/ah 2005(3) SCC 169 at para\8)
                                                                   H
    998        SUPREME COURT REPORTS                 [2011] 6 S.C.R.


A          f. Acquittal is based on irrelevant grounds (Arunachalam
           Vs. Sadhanatham 1979(2) SCC 297 at para 4

           g. High Court has completely misdirected itself in reversing
           the order of conviction by the Trial Court (Gaurishanker
           Sharma Vs. State of UP, AIR 1990 SC 709)
B
           h. The judgment is tainted with serious legal infirmities
           (State of Maharashtra Vs. Pimple, AIR 1984 SC 63 at
           para 75)

c       19. In reversing an acquittal, this Court keeps in mind that
    presumption of innocence in favour of the accused is fortified
    by an order of acquittal and if the view of the High Court is
    reasonable and founded on materials on record, this Court
    should not interfere.
D      20. However, if this Court is of the opinion that the acquittal
  is not based on a reasonable view, then it may review the entire
  material and there will be no limitation on this Court's jurisdiction
  under Article 136 to come to a just dedsion quashing the
  acquittal (See 1985(4) SCC 476 at para 45; 1996(7) SCC 471
E at para 4)

        21. For the reasons aforesaid, this Court cannot approve
  the judgment of the High Court insofar as conversion of
  conviction in respect of respondent no. 1 from Section 302 to
F Section 304 Part-II is concerned. This Court approves the
  judgment and order of conviction passed by the Trial Court and
  restores the same. The bail bonds of respondent no. 1 are
  discharged. He is directed to immediately surrender before the
  Trial Court and serve out the sentence imposed on him by the
G Trial Court.

           22. The appeal of the State is thus allowed.
    N.J.                                            Appeal allowed.