Somon vs State Of Kerala

3. To appreciate the points raised by the appellant herein, few relevant facts may be stated.

4. It was the case of the prosecution that six accused in Sessions Case No. 48 of 1996, in prosecution of their common object to cause death of Balan on account of previous enmity formed themselves into an unlawful assembly on May 25, 1995 at about 1.30 p.m. near the Forest out post in Maniyar Nalumakku and committed an offence of rioting. They were armed with deadly weapons like sword, stick, chopper, crackers, etc. and caused injuries to Balan and also to PW 2 Uthaman. Balan was taken to Medical College Hospital, Kottayam on the same day at about 5.30 p.m. where he was declared dead. All the accused were, therefore, charged for commission of offences punishable under Sections 143, 148, 323 and 302 read with Section 149, Indian Penal Code, 1860 (IPC). They were also charged under Sections 3 and 5 of the Explosive Substances Act, 1908. The 3 Judicial Magistrate, Ranni committed the case under Section 209 of the Code of Criminal Procedure, 1973 since the case was exclusively triable by a Court of Session.

5. In support of the case, prosecution examined 18 witnesses. Certain witnesses who had seen the incident and were examined by the prosecution did not support the prosecution case and were treated `hostile'. On the basis of other evidence including the evidence of injured witnesses as also referring to the evidence of (`hostile') witnesses coupled with the evidence of PW 3 Rahmathulla Rawther, Forest Guard, who was an independent witness, the trial Court recorded a finding that the incident in question did take place in which Balan was killed. The trial Court, after appreciating the evidence on record held that it was proved that accused Nos. 1, 2, 4 and 6 shared common intention to commit murder of deceased Balan and hence they were liable to be convicted for an offence punishable under 4 Section 302 read with Section 34, IPC. It also held that accused Nos. 1-4 were liable to be convicted under Section 147, IPC. Similarly, accused Nos. 5 and 6 were liable to be convicted under Section 148, IPC. Accordingly, punishments were imposed on them.

6. Being aggrieved by the order of conviction and sentence, all the accused approached the High Court. The High Court again considered the evidence on record and held that conviction and sentence recorded by the trial Court against accused Nos. 2-6 could not be said to be legal and in accordance with law. They were, therefore, ordered to be acquitted of all the charges. So far as accused No. 1 (appellant herein) is concerned, it held that conviction recorded by the trial Court against him for an offence punishable under Section 302, IPC was well-founded and was accordingly confirmed.

18. Looking to the injuries sustained by the deceased which were not on head, face or vital part of the body, but on arms, legs etc. coupled with the fact that in all, there were six accused and though all of them were convicted by the trial Court, the High Court extended benefit of doubt to accused Nos. 2-6, in our opinion, the counsel is right in submitting that on the facts and in the circumstances of the case, it cannot be said that the appellant herein had committed an offence punishable under Section 302, IPC. Even the trial Court did not convict the appellant substantively for an offence punishable under Section 302, IPC. He was convicted with other accused for an offence punishable under Section 302 read with Section 34, IPC. In our view, on the facts of the case and injuries sustained by 1 the deceased, the case is covered by Section 304 Part I, IPC.

22. Thus, though eighteen injuries were caused and the deceased met with death, this Court held that since the injuries were caused on arms and legs, the case could be said to be covered by Part I of Section 304, IPC and accordingly, conviction of the appellant was converted into Section 304, Part I from Section 302, IPC.

23. In view of the above facts, in our opinion, ends of justice would be met if we convert conviction of the appellant herein from 1 an offence punishable under Section 302, IPC to an offence punishable under Section 304 Part I, IPC.

24. So far as sentence is concerned, from the record it appears that initially the appellant had remained in jail for more than a month. After his conviction, again he was taken to custody on January 16, 2003 and is in jail all throughout. Thus the appellant is in jail since more than five years.

25. On the facts and in the circumstances of the case, we are of the view that interests of justice would be met if we reduce the sentence of the appellant to the sentence already undergone.

26. The appeal is accordingly allowed to the above extent and the appellant herein is ordered to be set at liberty if not required in any other case.

October 24, 2008.