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2003(1) Crimes 414 (SC)
Supreme Court of India
(From Kerala High Court)
Y.K. Sabharwal & K.G. Balakrishnan, JJ.
Kunhimodeenkutty & Ors. —Appellants
versus
State of Kerala —Respondent
Criminal Appeal No. 866 of 1994
With
Criminal Appeal Nos. 908-909/1994
Decided on 18-12-2002
For the Appellants :Sushil Kumar, Sr. Advocate, EMS Anam, Fazlin Anam and Adolf Mathew, Advocates.
For the Respondent:Sushil K. Tekriwal and K.R. Sasiprabhu, Advocates.
Important point
As incident happened all of a sudden and peculiar nature of circumstances which led to death of deceased so A7, A8 and A11 would be guilty of offences under Sections 304 Part I/34 and not under Sections 302/34 IPC.
Headnote:(i) Indian Penal Code, 1860—Sections 302/34, 304 Part I/34—Nature of offence—Whether murder or culpable homicide not amounting to murder—Sessions Court acquitting A7, A8 and A11 but High Court convicting under Sections 302/34—Appeal to Supreme Court—Peculiar nature of circumstances leading to death of deceased in an incident happening all of a sudden—Conviction altered from 302/34 IPC to 304 Part I/34 IPC—Appeals partly allowed.
Held : As A-7, A-8 and A-11 were acquitted by the Sessions Court and the High Court convicted them for the offence under Section 302 read with Section 34 for the first time, we have carefully gone through the entire evidence of PW1 to PW3, PW8, PW14 and PW17 and are satisfied that their evidence is worthy of acceptance. PW 13, the Doctor who conducted the post-mortem examination on deceased Gopalakrishnan was of the opinion that deceased Gopalakrishnan died of penetrating injury caused to the chest. There were as many as 9 injuries on the body of deceased Gopalakrishnan. Injury No. 1 was an incised wound on the top of right shoulder and Injury No. 2 was an incised wound on the right arm pit. Injury No. 3 was an incised wound on the abdomen. There were incised wounds on the left side of the head and various other abrasions and contusions on his body. It is clear that a group of people attacked deceased Gopalakrishnan and caused him several injuries. Moreover, the incident happened all of a sudden when the accused persons saw deceased Gopalakrishnan and PW1 to PW 3. Having regard to the peculiar nature of the circumstances which led to the death of deceased Gopalakrishnan, we are of the view that the offence committed by A-7, A-8 and A-11 would only come within the ambit of the offence punishable under Section 304 Part I. In the result, we acquit A-7, A-8 and A-11 of the offence of murder punishable under Section 302 read with Section 34 I.P.C. and convict them for the offence under Section 304 Part I read with Section 34 I.P.C. and sentence them to undergo imprisonment for a period of 7 years. (Para 9)
(ii) Indian Penal Code, 1860—Sections 143, 147, 148 and 341, 324, 307, 302 and 149—11 persons charged and tried for offences under—One person dying and three injured—Trial Court convicted A1 under Section 307 IPC and A5 and A6 under Section 324 IPC—High Court upheld their convictions and also convicted A2 under Section 324 IPC—Appeals against—Apex Court upholding their conviction and refusing to release them on probation (Paras 9 and 10)—Their appeals dismissed.
Held : We find no reason to interfere with the conviction of the first accused for the offence under Section 307, which was confirmed by the High Court. So also we do not find any reason to interfere with the conviction and sentence passed against A-2, A-5 and A-6 for the offence under Section 324. Their involvement in the crime is amply proved by the evidence adduced by the prosecution. (Para 9)
Held also : The learned counsel for the appellants prayed that A-2, A-5 and A-6 are first offenders, so they be released under Probation of Offenders Act. We do not think that this is a fit case to release them on probation. (Para 10)
Held consequently : In the result, Criminal Appeal no. 866/1994 is partly allowed and the conviction of the appellants under Section 302 read with Section 34 I.P.C. is set aside and they are found guilty of the offence punishable under Section 304 Part I read with Section 34 I.P.C. and each of them is sentenced to undergo imprisonment for a period of 7 years. Criminal Appeal Nos. 908-909/1994 are accordingly dismissed. All the accused are directed to surrender to their bail bonds to undergo the sentence. (Para 11)
JUDGMENT
K.G. Balakrishnan, J.—The Court of Sessions, Manjeri Division in Kerala tried 12 accused persons for the offences punishable under Section 143, 147, 148, 341, 324, 307, 302 read with Section 149 I.P.C. The Sessions Judge convicted the first accused for the offence under Section 307 I.P.C. and sentenced him to undergo rigorous imprisonment for a period of 7 years. A-5 and A-6 were found guilty of offences punishable under Section 324 I.P.C. and they were sentenced to undergo imprisonment for a period of one year each. These accused persons filed an appeal before the High Court and the State also went in appeal against the acquittal of other accused persons. The Division Bench of the Kerala High Court confirmed the conviction and sentence entered against A-1, A-5 and A-6 and the appeal preferred by the State against the acquittal was partly allowed and the Division Bench found A-7, A-8 and A-11 guilty of the offence under Section 302 read with Section 34. These three accused were sentenced to undergo imprisonment for life. The Division Bench also found A-2 guilty of the offence under Section 324 and sentenced him to undergo imprisonment for a period of one year. Criminal Appeal No. 866/1994 is an appeal preferred by A-7, A-8 and A-11 who have been convicted by the High Court for the offence under Section 302 read with Section 34. Criminal Appeal Nos. 908-909/1994 are the appeals preferred by A-1, A-2, A-5 & A-6.
2. The incident happened at about 8.30 p.m. on 18.12.1984 at a place called Athavanad in Tirur Taluk. During 1984 Lok Sabha elections deceased Gopalakrishnan and witnesses PW1, PW2 and PW3 and others organised a meeting of a political party in the evening of 18.12.1984. After the meeting was over at about 8.00 p.m., deceased Gopalakrishnan and PW1, PW2 and PW3 went to the house of one K.V. Chandran and entrusted the mike set which was used for the meeting. From there, PW1, PW2 and PW3 and deceased Gopalakrishnan were coming back and when they reached the main road, the accused persons came from the northern side. Some of them were armed with dagger, iron rods and other weapons. Two accused persons were carrying gas lights. According to the prosecution, the group of accused persons mounted an attack on deceased Gopalakrishnan and PW1 to PW3. Deceased Gopalakrishnan got injuries by some of the accused. PW3 Narayanan was stabbed by the first accused. He ran southwards and reached a neighbouring house. From there, he was taken to Tirur Government hospital in a jeep. Deceased Gopalakrishnan was attacked by A-11 Thuluvadath Hussan by a dagger on his shoulder. A-8 Allavikutty attacked Gopalakrishnan with a dagger and caused injuries on his right shoulder and stomach. A-7 stabbed him on his belly. PW1 was attacked by A-6 with an iron rod. PW1 and PW2 escaped to a neighbouring house and as they were afraid, they remained in the house and in the early hours, they were taken to Government hospital, Tirur. Deceased Gopalakrishnan who sustained injuries in the incident ran from the place and his dead body was found about 500 meters away from the place of incident.
3. On receipt of intimation from the hospital, a head constable from Tirur Police Station recorded the FI statement of PW1. As the incident had taken place within the jurisdiction of Kattipparuthy Police Station, the FIR was transferred to that station and the Circle Inspector of Police started the investigation. Inquest was prepared and the dead body of deceased Gopalakrishnan was subjected to post-mortem examination. At the place of occurrence, a motor car was found. The accused were arrested and some of the weapons allegedly used in the commission of the crime were recovered.
4. The learned Sessions Judge found that there was some suspicion in the prosecution case and it was held that there was no satisfactory evidence to prove that these accused persons caused the death of Gopalakrishnan. According to the learned Sessions Judge, PW1 to PW3 could
