AJMAL versus THE STATE OF KERALA
[2022] 14 S.C.R. 503, Supreme Court of India, 2022
Outcome: Case Partly allowed (Granted)
Segment: Ratio
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AJMAL
v.
THE STATE OF KERALA
(Criminal Appeal No. 1838 of 2019)
JULY 12, 2022
[AJAY RASTOGI AND VIKRAM NATH, JJ.]
Penal Code, 1860: ss.34, 149, 302, 304 Part II– Culpable
homicide not amounting to murder – Deceased along with other
friends were stopped by ten accused persons – Verbal altercation
took place – Deceased was beaten by accused no. 1 and 2 and as
a result, deceased fell on the ground – Accused no. 3 attacked the
others with stick and caused them simple and grievous hurt – Charges
framed u/ss.143, 147, 148, 341, 323, 324, 427 and 302 r/w s.149 –
Trial Court acquitted accused nos.4, 5, 7 and 10 – High Court
acquitted three other accused namely accused nos.6, 8 and 9 of all
the charges – Conviction of appellants u/ss. 143, 147, 148 r/w s.149
was set aside, however, their conviction and sentence under ss.341,
323, 324, 427 and 302 r/w s.34 as awarded by trial court was
confirmed by the High Court – Hence instant appeal – Held: The
present case falls into the category of a culpable homicide not
amounting to murder falling u/s.304 Part-II for the reasons that
there was no pre-meditation of mind to commit murder; all the
accused were admittedly not armed when they stopped the vehicle
of deceased; it was during the verbal altercation at that stage that
the three accused picked up the weapon of assault; the single blow
was given to the deceased by accused nos.1 and 2 and the case set
up for exhortation to kill the deceased was
not found to be proved
– Appellants would be entitled for acquittal u/s. 302 but would be
liable to be convicted under s.304 Part-II – Rest of the conviction
as upheld by the High Court and the sentence for the charges u/ss.
341, 323, 324 and 427 r/w s. 34 IPC is maintained.
Partly allowing the appeals, the Court
HELD: 1.The present case falls into the category of a
culpable homicide not amounting to murder falling under section
304 Part-II IPC for the following reasons: (i) There was no pre-
meditation of mind to commit murder,(ii) All the accused were
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admittedly not armed when they stopped the vehicle of the
deceased and his friends and compelled them to alight from the
same, (iii) It was during the verbal altercation at that stage that
the three accused picked up the weapon of assault namely, sticks
of casuarinas tree and a brick from the road side.(iv) Single blow
was given to the deceased by the accused nos.1 and 2,(v) The
case set up for exhortation to kill the, deceased has not been
found to be proved. (vi) Both the groups consisted of young men.
(vii) The High Court found that there was no unlawful assembly
formed with a common object and accordingly had acquitted three
other accused and also the present appellants from the charge of
unlawful assembly under section 149 IPC. (viii) The appellants
have been convicted with the aid of section 34 IPC. For all these
reasons, the appellants would be entitled for acquittal under
section 302 IPC but would be liable to be convicted under section
304 Part-II IPC. Rest of the conviction upheld by the High Court
and the sentence for the charges under sections 341, 323, 324
and 427 read with section 34 IPC is maintained. As regards the
sentence, all the three appellants are in jail and have undergone
several years of incarceration. Accordingly the sentence is
awarded for the period already undergone by all the three
appellants. [Paras 21, 23 and 24][517-D-H; 518-C-E]
Gulab vs. State of U.P. 2021 (12) JT 134 – held
inapplicable.
Mohd. Rafiq vs. State of M.P. (2021) 10 SCC 706 –
relied on.
Case law reference
(2021) 10 SCC 706
relied on
Para 17
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1838 of 2019.
From the Judgment and Order dated 30.05.2019 of the High Court
of Kerala at Ernakulam in Crl. A. No.91 of 2014.
With
Criminal Appeal Nos. 1839 and 1840 of 2019.
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V.K. Shukla, N. Hariharan, Sr. Advs., Harikumar V., Anupam
Mishra, Jenis V. Francis, P. V. Dinesh, Ashwini Kumar Singh, Bineesh
K., Shinoj K. Narayanan, K. Rajeev, Advs. for the Appellant.
Harshad V. Hameed, Dileep Poolakkot, Mrs. Arshly Harshad,
Rohith R. Kartha, Advs. for the Respondent.
The Judgment of the Court was delivered by
VIKRAM NATH, J.
1. The present set of three appeals filed by accused-appellants
namely, Biju (accused no.1), Ashique Salam (accused no.2) and Ajmal
(accused no.3) assail the correctness of the judgment and order dated
30th May, 2019 passed by the High Court of Kerala in Criminal Appeal
Nos. 91, 238 and 564 of 2014, whereby the aforesaid appeals were
partly allowed. The conviction of these three appellants under sections
143, 147, 148 IPC1 read with section 149 IPC was set aside, however,
their conviction and sentence under sections 341, 323, 324, 427 and 302
read with section 34 IPC as awarded by the Trial Court was confirmed.
2. At the outset, it may be pointed out that there were 10 (ten)
accused, who were charge-sheeted. The present appellants are accused
nos. A1, A2 and A3. Four accused namely accused nos. 4, 5, 7 and 10
were acquitted of all the charges by the Trial Court. Further High Court
acquitted three accused namely accused nos. 6, 8 and 9 of all the charges.
Thus, out of 10 (ten) accused, the present three accused-appellants A1,
A2 and A3 stand convicted by the High Court and, as such, are before
this Court.
3.
According to the prosecution case the entire transaction was in
three parts. It is briefly stated as under:
3.1. In the last week of January, 2008, there were festivals going
on in the Church located at Thidanadu and Variyanikkadu. The deceased-
Varkeychen @ George Thomas along with his friends initially went to
Thidanadu Church in a Scorpio Car, which was driven by Saji Joseph
(P.W.-1) to attend a musical festival (gana mela). The deceased along
with his friends watched the programme for about half an hour and,
thereafter, proceeded towards another Church at Variyanikkadu to enjoy
the festival going on there. At about 9:00 p.m., they were returning to
Thidanadu Church, when two motor-bikes driven by accused no.9
1 IPC – Indian Penal Code, 1860
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(Sabeer) and accused no.3, Ajmal were moving in front of their Car and
blocked their way. Accused no.6 (Razique Jalal @ Razee) was sitting
as a pillion on the motor-cycle, driven by A3 (Ajmal). At that time, a
verbal altercation took place between Saji Joseph (PW-1) and A3 (Ajmal)
regarding the bikes not giving way to their vehicle (four wheeler).
3.2. At around 10:45 p.m., deceased along with his friends were
returning, when their Car reached the place called Veyilukanampara
Junction in Thidanadu Kara, they saw accused no.9 (Sabeer) waiting
for them by the side of the road and soon thereafter the other accused
also joined him on different bikes. All the ten accused-persons formed
an unlawful assembly and in prosecution of a common object wrongfully
restrained the deceased and his friends and compelled them to alight
from their vehicle. Once, they were out of the vehicle, they were attacked
by the accused-appellants. The accused no.1 (Biju) hit the deceased
with a stick of casuarina tree (marked as MO-2). Whereas accused
no.2 (Ashique Salam) hit on the back of his neck with a brick (marked
as MO-3), as a result of these two injuries, deceased fell on the road.
Accused no. 3 (Ajmal) assaulted Saji Joseph (PW-1) with a stick of
casuarina tree (marked as MO-1) causing injuries on his head and other
parts of the body. As by this time, public had started gathering, the accused
left the place of occurrence.
3.3. Further,
when the deceased was being taken in the car by his
friends towards the hospital, once again, the vehicle was stopped by the
accused-persons near Chennadu Junction, where accused no.3, Ajmal
threw stones at the car causing damage to the wind screen and other
glasses.
3.4. The injured-deceased was taken to IHM Hospital,
Bharananganam and from there, he was referred to the Medical College
Hospital at Kottayam. His condition was deteriorating, as such, he was
shifted to Medical Trust Hospital, Ernakulam, where he succumbed to
the injuries on the following day at about 4:45 a.m. The First Information
Report was lodged by Peter (PW-2) on his statement, which was
registered as FIR (Ext.P.-1).
4. The investigation was taken over by the Circle Inspector (PW-
20), who prepared the inquest report (Ext.-P2). The dead body was sent
for post-mortem, which was conducted by Assistant Professor of
Forensic Medicine and Deputy Police Surgeon, Medical College Hospital,
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Kottayam (PW-13) at about 2:05 p.m. on 28.01.2008. He prepared the
post-mortem report (Ext.P-10) mentioning the following ante-mortem
injuries:
“(1) Contusion of scalp 10 X 8 c.m. involving the full thickness of
left occipital region, its lower extent 3 c.m., above root of neck
and 2 c.m. outer to midline.
(2) Contusion of right cheek 5 X 4 c.m. X 0.5 c.m.
(3) Abraded contusion 8 X 1 c.m.-2 c.m. X 1 c.m. horizontally
oblique involving right side of neck and fact, its lower outer extent
7 c.m. above root of neck and 10 c.m. outer to midline.
The skull showed fissured fracture 8 c.m. long involving the
occipital bone of left side of posterior cranial fossa, 1-1.5 c.m.
outer to midline, corresponding to injury No.1. Dura was intact
had a bluish tint and tense, subdural clots were seen overlying
right frontal and temporal lobe of brain with bilateral subarachnoid
haemorrhage. The pons on sectioning showed haemorrhagic area
1.5 c.m. x 1 c.m. The right frontal pole of brain had contusion 3 x
2 x 0.5 c.m. Brain showed fattened gyri and narrow sulci. The
anterior cranial fossa a right side showed fissured fracture 4 c.m.
long.
(4) Contusion 5 x 4 x 0.5 c.m. long.
(5) Abrasion 2 x 1 c.m. on front of left knee.”
5. After completing the investigations, the police report under
section 173(2) Cr.P.C.2 was submitted, whereupon, cognizance was taken
by the Magistrate and the matter committed to the Sessions Court for
trial. The Trial Court framed charges under sections
143, 147, 148, 341,
323, 324, 427 and 302 read with section 149 IPC. The charges were
read over to the accused, who pleaded not guilty and, as such, were put
to trial.
6. The prosecution examined 21 witnesses as PW-1 to PW-21
and exhibited as many as 74 documentary evidence marked as Exts:P-
1 to P-74 and further produced 19 material objects marked as MO-1 to
MO-19. After the close of the prosecution evidence, the accused were
examined under section 313 Cr.P.C. and the incriminating material was
2 Cr.P.C. – Code of Criminal Procedure, 1973
AJMAL v. THE STATE OF KERALA
[VIKRAM NATH, J.]
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put to them. They denied all such circumstances and reiterated their
innocence. The Investigating Officer also conducted a test identification
parade.
7. After considering the material evidence on record and after
hearing the learned counsel for the parties, the Trial Court acquitted four
accused namely, accused nos.4, 5, 7 and 10 namely, Nijas, Naseebulla
@ Nazeeb, Seenaj and Shihab. It further convicted the rest of the 6 (six)
accused nos. 1, 2, 3, 6, 8 and 9, namely, Biju, Ashique Salam, Ajmal,
Razique Jalal @ Razee, Salim Basheer @ Saly and Sabeer respectively.
8. Aggrieved by the conviction, all the 6 (six) accused preferred
appeals before the High Court. Criminal Appeal No.87 of 2014 was
filed by the accused nos.6 and 8 namely, Razique Jalal @ Razee and
Salim Basheer @ Saly, whereas Criminal Appeal No.132 of 2014 was
filed by accused no.9-Sabeer. As already recorded above, the other three
appeals bearing nos.564, 238 and 91 of 2014 were filed by the accused
nos.1, 2 and 3 respectively namely, Biju, Ashique Salam and Ajmal. As
already recorded above, the High Court allowed Appeal Nos.87 and 132
of 2014 acquitting the three accused nos.6, 8 and 9 of all the charges,
whereas it partly allowed the appeal nos.564, 238 and 91 of 2014 of the
present three appellants. Aggrieved by the judgment of the High Court,
the three appellants are before this Court.
9. The prosecution has established:
(i)
that the death of
deceased-Varkeychen @ George Thomas
was homicidal;
(ii)
that PW-1, PW-2 and PW-4 suffered simple and grievous
hurt which took place at the date, time and place stated in
the FIR.
(iii)
that the FIR was promptly lodged;
(iv)
the ante-mortem injuries suffered by the deceased is in
consonance with the report registered by PW-2 and also
established from the statements of PW-1, PW-2 and PW-4,
who are the injured eye-witnesses.
(v)
The recovery of the material objects (MO nos.1, 2 and 3)
used by the three appellants in causing the fatal injuries to
the deceased as also the injuries to PW-1, PW-2 and PW-
4.
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10. Insofar as the test identification parade is concerned, the same
has not been found to be very reliable by the courts below, however, as
the witnesses and the injured knew the accused, their identification in
Court has been found to be sufficient by the Courts below. They were
all residents of neighbourhood and knew each other.
11. We are, thus, satisfied that the occurrence in the manner as
set up by the prosecution has been duly established. The deceased died
due to the injuries caused by accused nos.1 and 2 by using a stick (MO-
2) and a brick (MO-3), whereas, the injuries caused to the PW-1, PW-2
and PW-4 is on account of the assault by accused no.3 by using a stick
(MO-1). The only question which requires consideration is whether it
was a culpable homicide amounting to murder punishable under section
302 IPC as has been held by the courts below or it was a culpable
homicide not amounting to murder punishable under section 304 of IPC
as submitted by the Counsel for the appellants.
12. Learned counsel for the appellants have led great emphasis
on the manner, in which the incident occurred. According to them,
(i)
there was no pre-meditation of committing murder.
(ii)
the accused, admittedly, when they accosted the vehicle
and compelled the deceased and the injured to come out of
the vehicle, were not armed with any weapons.
(iii)
It was only when they alighted from the vehicle and some
heated arguments took place as a result of the earlier verbal
altercation in not giving a pass to the Scorpio vehicle to
overtake the motor-bikes, that the accused-appellants picked
up the stick of casuarina tree from the decorations, which
had been made at that place and also the brick from the
side of the road and assaulted with it.
(iv)
both these weapons used could not be said to be deadly
weapons but could have definitely caused grievous hurt and
may be injuries, which could result into death.
(v)
it is true that the injuries noted in the post-mortem report of
the deceased were on the vital part i.e. the head and neck
and which, according to the medical evidence, was sufficient
in ordinary course to cause death, but the same was
unintentional.
AJMAL v. THE STATE OF KERALA
[VIKRAM NATH, J.]
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(vi)
only one blow each was given by accused nos. 1 and 2 to
the deceased. There was no repeated assault.
(vii)
there was no mens rea to commit murder, therefore, the
same would fall within the exception of section 300 IPC.
(viii) On the own findings of the High Court, it was not a case of
culpable homicide amounting to murder.
(ix)
Our attention has been drawn to paragraph nos.27 and 28
of the judgment of the High Court, which took into
consideration the evidence led by the eye-witnesses and
injured namely, PW-1, PW-2 and PW-4, according to which,
the charge under section 302 ought to have been converted
to section 304 IPC. The appellants ought to have been
acquitted under section 302 IPC and at best could have
been convicted under section 304 IPC.
(x)
Paragraph Nos.27 and 28 of the judgment of the High Court
are reproduced below:
“27. We have no dispute with the proposition that
common object may be formed at the spur of the
moment, and that prior meeting of minds or a formal
assembly consisting of the members of the unlawful
assembly to commit a particular crime may not be
essential. The precedent on the point referred to earlier
would indicate that the knowledge of the members of
the assembly that the act which actually occurred was
very likely to be caused by their acts, is sufficient to
make them vicariously liable for the ultimate
consequences. But, in the instant case, wheat we see
from the evidence is that
the first part of the occurrence
at Chemmalamattom was only an altercation between
P.W.-1 and A3 in the presence of A6 and A9 with regard
to the bikers not giving way and passage to the car driven
by P.W.-1 for overtaking. The altercation also did not
last long enough so as to form a vengeance in the mind
of A3, A6 and A9 so as to garner support of the
remaining accused to form an unlawful assembly with
the common object of committing murder, particularly
of the deceased, because the altercation was only with
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A3 and P.W.-1 and the deceased had nothing to do with
the altercation. Under the circumstances, we are of the
opinion that the accused definitely did not have a common
object of murdering the deceased. It is also relevant to
note that had the accused entertained the common object
to commit murder or even previous act, they would have
been lying in wait for the Scorpio car armed with deadly
weapons.. None of the prosecution witness has a case
that the accused had accosted them at the scene of
occurrence armed with deadly weapons. It is only after
the witnesses alighted from the car, P.W.-1 had a
conversation with A9 and accused nos.1, 2 and 3 picked
up the weapons which were available there and attacked
the passengers in the car, including the deceased. Even
if A3 had called for others to kill, it could not have been
the deceased because he only had a vengeance against
P.W.-1, and, therefore, the entire occurrence as
appeared to us from the oral testimony of witnesses would
indicate that it is only a chance encounter without any
premeditated motive in prosecution of common object.
28. It is also pertinent to note that P.W.-1 had testified
that he had a friendly conversation with A9 in the
beginning after he alighted from the car at the scene of
occurrence. It is also testified that when the accused
went to attack the passengers of the car, including the
P.W.-1, A9 had prevented others from causing injuries.
This particular statement in the testimony of
P.W.-1
clearly exonerated A9 of the allegations of having acted
in prosecution of common object of committing murder.
He was not even wielding any weapon in his hands. In
fact, except A1, A2 and A3, none of the other accused
had picked up any weapon from the scene of occurrence.
Even A1 and A3 had picked up sticks, which were
hanging at the scene of occurrence as part of the
decoration done in connection with the Church festival.
MO3 brick was picked up by A2 from the side of the
road abruptly during the scuffle that ensued in
consequence of the passengers of the car alighting.
Under the circumstances, we are of the considered
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[VIKRAM NATH, J.]
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opinion that apart from A1, A2 and A3, none of the other
accused could be guilty for attacking the deceased, P.W.-
1 and P.W.-2. The prosecution has not succeeded in
establishing that there was formation of an unlawful
assembly acting in furtherance of common object. The
finding of the learned Sessions Judge roping in all the
appellants resorting to section 149 is therefore not held
good. It is also pertinent to note that none of the accused
were earlier armed with deadly weapons and therefore
it cannot be said that they were guilty of committing riot
armed with deadly weapons, an offence punishable under
section 148 of the IPC.”
(xi)
As there was no intention to commit murder or a pre-
planned attempt to commit murder, section 302 IPC, charge
could not have been sustained.
(xii)
that appellants are in jail and have suffered incarceration
of several years.
13. On behalf of the State of Kerala, it is submitted that the entire
transaction took place in three parts. The first incident took place when
a verbal altercation took place in overtaking the vehicles. The second
incident took place, in which the physical assault occurred causing fatal
injuries to the deceased and causing simple and grievous hurt to the
three witnesses namely, PW-1, PW-2 and PW-4. The third incident took
place when the injured was being taken to the hospital; stones were
pelted by accused no.3 causing damage to the vehicle.
14. Learned counsel
for the State further submitted that there
was clear motive to commit murder as after the first episode of verbal
altercation took place, it was only with an intention to commit murder
that all the accused joined together by forming an unlawful assembly
accosting the vehicle in which the deceased was travelling with his friends
compelling them to come out of the vehicle and thereafter it was an
open assault with sticks and bricks, which were used with such force
causing fatal injuries to the deceased and, therefore, it was nothing short
of committing a pre-planned murder. Even after having caused the fatal
injuries, the accused further tried to prevent the deceased from being
taken to the hospital and the intention was to stop the vehicle and cause
enough delay so that the deceased, who was still alive may ultimately
die. The judgment of the High Court does not suffer from any infirmity
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and the appeal, accordingly deserves to be dismissed. Learned counsel
has placed reliance upon a judgment of this Court in Gulab vs. State of
U.P.3
15. Having considered the submissions and having perused the
material on record, we do not find any infirmity in the prosecution
establishing the incident as set up in the First Information Report. For
the said conclusion, we have taken note of the following:
(i)
First Information Report was promptly lodged.
(ii)
The prosecution story as set up in the FIR appears to be
probable.
(iii)
The medical evidence fully corroborates the prosecution
story.
(iv)
PW-1, PW-2 and PW-4, the three eye-witnesses have fully
supported the prosecution story and have narrated the same
incident as it occurred.
(v)
Formal witnesses have discharged their burden by proving
the police papers and other documentary evidence placed
on record by the prosecution.
(vi)
The material objects recovered have also been duly proved.
(vii)
According to the medical evidence, the material objects
alleged to have been used in the commission of crime could
have been actually used in causing the injuries.
16. The only question which falls for our consideration is as to
whether the manner in which the entire transaction took place in particular
relating to the physical assault, would amount to culpable homicide
amounting to murder or culpable homicide not amounting to murder.
17. The distinctive features and the considerations relevant for
determining a
culpable homicide amounting to murder and distinguishing
it from the culpable homicide not amounting to murder has been a matter
of debate in large number of cases. Instead of referring to several
decisions on the point reference is being made to a recent decision in the
case of Mohd. Rafiq vs. State of M.P.4, wherein Justice Ravindra
Bhatt, speaking for the Bench, relied upon two previous judgments
3 2021(12) JT 134
4 (2021) 10 SCC 706
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[VIKRAM NATH, J.]
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dealing with the issue as narrated in paragraph nos.11, 12 and 13 of the
report which are reproduced below: -
“11. The question of whether in a given case, a homicide is murder
3, punishable under section 302 IPC, or culpable homicide, of either
description, punishable under section 304 IPC has engaged the
attention of courts in this country for over one and a half century,
since the enactment of the IPC; a welter of case law, on this
aspect exists, including perhaps several hundred rulings by this
court. The use of the term “likely” in several places in respect of
culpable homicide, highlights the element of uncertainty that the
act of the accused may or may not have killed the person. Section
300 IPC which defines murder, however refrains from the use of
the term likely, which reveals absence of ambiguity left on behalf
of the accused. The accused is for sure that his act will definitely
cause death. It is often difficult to distinguish between culpable
homicide and murder as both involve death. Yet, there is a subtle
distinction of intention and knowledge involved in both the crimes.
This difference lies in the degree of the act. There is a very wide
variance of degree of intention and knowledge among both the
crimes.
12. The decision in State of Andhra Pradesh v Rayavarapu
Punnayya & Anr5 notes the important distinction between the
two provisions, and their differing, but subtle distinction. The court
pertinently
pointed out that: “12. In the scheme of the Penal Code,
“culpable homicide” is genus and “murder” its specie. All “murder”
is “culpable homicide” but not vice- versa. Speaking generally,
“culpable homicide” sans “special characteristics of murder”, is
“culpable homicide not amounting to murder”. For the purpose of
fixing punishment, proportionate to the gravity of this generic
offence, the Code practically recognises three degrees of culpable
homicide. The first is, what may be called, “culpable homicide of
the first degree”. This is the greatest form of culpable homicide,
which is defined in section 300 as “murder”. The second may be
termed as “culpable homicide of the second degree”. This is
punishable under the first part of section 304. Then, there is
“culpable homicide of the third degree”. This is the lowest type of
culpable homicide and the punishment provided for it is, also, the
5 1976 (4) SCC 382
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lowest among the punishments provided for the three grades.
Culpable homicide of this degree is punishable under the second
part of section 304.. 13. The academic distinction between
“murder” and “culpable homicide not amounting to murder” has
vexed the courts for more than a century. The confusion is caused,
if courts losing sight of the true scope and meaning of the terms
used by the legislature in these sections, allow themselves to be
drawn into minute abstractions. The safest way of approach to
the interpretation and application of these provisions seems to be
to keep in focus the keywords used in the various clauses of
sections 299 and 300.”
13. The considerations that should weigh with courts, in
discerning whether an act is punishable as murder, or culpable
homicide, not amounting to murder, were outlined in Pulicherla
Nagaraju @ Nagaraja Reddy v State of Andhra Pradesh6.
This court observed that: “29. Therefore, the Court should
proceed to decide the pivotal question of intention, with care
and caution, as that will decide whether the case falls under
section 302 or 304 Part I or 304 Part II. Many petty or
insignificant matters - plucking of a fruit, straying of cattle, quarrel
of children, utterance of a rude word or even an objectionable
glance, may lead to altercations and group clashes culminating
in deaths. Usual motives like revenge, greed, jealousy or suspicion
may be totally absent in such cases. There may be no intention.
There may be no
premeditation. In fact, there may not even be
criminality. At the other end of the spectrum, there may be cases
of murder where the accused attempts to avoid the penalty for
murder by attempting to put forth a case that there was no
intention to cause death. It is for the courts to ensure that the
cases of murder punishable under section 302, are not converted
into offences punishable under section 304 Part I/II, or cases of
culpable homicide not amounting to murder are treated as murder
punishable under section 302. The intention to cause death can
be gathered generally from a combination of a few or several of
the following, among other, circumstances; (i) nature of the
weapon used; (ii) whether the weapon was carried by the
accused or was picked up from the spot; (iii) whether the blow
6 (2006) 11 SCC 444
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is aimed at a vital part of the body;(iv) the amount of force
employed in causing injury; (v) whether the act was in the course
of sudden quarrel or sudden fight or free for all fight; (vi) whether
the incident occurs by chance or whether there was any
premeditation; (vii) whether there was any prior enmity or
whether the deceased was a stranger;(viii) whether there was
any grave and sudden provocation, and if so, the cause for such
provocation; (ix) whether it was in the heat of passion; (x)
whether the person inflicting the injury has taken undue advantage
or has acted in a cruel and unusual manner; (xi) whether the
accused dealt a single blow or several blows. The above list of
circumstances is, of course, not exhaustive and there may be
several other special circumstances with reference to individual
cases which may throw light on the question of intention.””
18. For the said purpose, we examined the evidence on record as
narrated in the First Information Report, during investigation as per the
evidence collected by the Investigating Officer and also the evidence
led during the course of trial in particular by the injured eye-witnesses.
19. From the perusal of all the above material, the prosecution
story as set up and as established in brief can be summarized as under:
(i)
On the fateful evening of 27th January, 2008, the first incident
took place around 9:00 p.m. regarding the overtaking of the
vehicles of one
party and the other resulting into a verbal
altercation at that stage between PW-1 and A9.
(ii)
Both the parties went in separate directions after the verbal
altercation.
(iii)
Later on, at about 10:45 p.m., when the deceased along
with his other friends PW-1, PW-2 and PW-4 were
returning, they were stopped by the accused 10 (ten) in
number, they were wrongfully restrained, compelled to alight
from their vehicle.
(iv)
Again, a verbal altercation took place whereafter accused
nos. 1 and 3 picked up a stick of casuarina tree from the
decoration set up on the road side and accused No.2 picked
up a brick from the road side. Accused No.1 hit the deceased
with a stick on his head, whereas accused No.2 hit the
deceased with the brick, as a result of which, the deceased
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fell on the ground. Accused No.3 attacked the others with
a stick and caused them simple and grievous hurt.
(v)
Accused Nos.1 and 2 had caused only one injury each on
the deceased. It was not a repeat or a multiple assault by
them.
(vi)
Although, role of exhortation to kill the deceased was
assigned to accused No.3, but during trial and in the cross-
examination, all the three witnesses PW-1, PW-2 and PW-
4 stated that they were not sure whether they have said so
in their statements under section 161 Cr.P.C. Thus,
apparently, there was no role assigned to exhortation to any
of the accused to kill the deceased.
20. The Trial Court had acquitted 4 (four) accused namely accused
nos.4, 5, 7 and 10 and the High Court acquitted three other accused
namely accused nos.6, 8 and 9 of all the charges.
21. Considering the statutory provisions laid down in IPC and the
law on the point, we find that the present case falls into the category of
a culpable homicide not amounting to murder falling under section 304
Part-II IPC for the following reasons:
(i)
There was no pre-meditation of mind to commit murder.
(ii)
All the accused were admittedly not armed when they
stopped the vehicle of the deceased and his friends and
compelled them to alight from the same.
(iii)
It was during the verbal altercation at that stage that the
three accused picked up the weapon of assault namely, sticks
of casuarina tree and a brick from the road side.
(iv)
Single blow was given to the
deceased by the accused nos.1
and 2.
(v)
The case set up for exhortation to kill the deceased has not
been found to be proved.
(vi)
Both the groups consisted of young men.
(vii)
The High Court found that there was no unlawful assembly
formed with a common object and accordingly had acquitted
three other accused and also the present appellants from
the charge of unlawful assembly under section 149 IPC.
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(viii) The appellants have been convicted with the aid of section
34 IPC.
22. The reference to the judgment in the case of Gulab Singh
(supra) by the learned counsel for the State of Kerala, in our opinion, is
of no relevance to the facts and circumstances of the present case.
There was no issue involved relating to the distinction between culpable
homicide amounting to murder or not amounting to murder. The issue
involved in the case of Gulab Singh was relating to the applicability of
section 34 IPC.
23. Thus, for all the reasons stated above, we are of the view that
the appellants would be entitled for acquittal under section 302 IPC but
would be liable to be convicted under section 304 Part-II IPC. Rest of
the conviction upheld by the High Court and the sentence for the charges
under sections 341, 323, 324 and 427 read with section 34 IPC is
maintained. It is ordered accordingly.
24. Now coming to the question of sentence upon conviction under
section 304 Part-II IPC, we find that all the three appellants are in jail
and have undergone several years of incarceration. We accordingly award
the sentence for the period already undergone by all the three appellants.
The appellants would be released forthwith unless they are required in
any other case.
25. Appeals stand partly allowed as above. The impugned judgment
of the High Court stands modified to the aforesaid extent.
Devika Gujral
Appeals partly allowed.
(Assisted by : Shubhanshu Das, LCRA)