To constitute culpable homicide under Indian law, intention or knowledge of likely death must be established; mere causing of death in absence of such mental state does not warrant conviction for murder.

JUDGMENT :

Jobin Sebastian, J.

Accused Nos. 1 to 8 in S.C. No.57/2014 on the file of the Additional Sessions Court- VI, Ernakulam, have preferred this appeal challenging the judgment of conviction and the order of sentence passed against them for the offences punishable under Sections 143, 147, 342, 352 and 302 r/w 149 of the Indian Penal Code.

2. The prosecution case in brief is as follows:

Abdul Khayoom, the deceased in this case, was the President of Ershadul Muslim Sabha and the manager of H.I.H.S. School, Edavanakkad, during the period 2004-2008. The accused Nos. 1 to 8 bore a grudge towards Abdul Khayoom as they were under the impression that he was the person behind obtaining an order from the Waqf Board that new members shall not be inducted in the Ershadul Muslim Sabha. Owing to the said animosity, on 03.03.2012 at about 9.00 p.m., in front of the vegetable shop of PW6, accused Nos. 1 to 8 formed themselves into an unlawful assembly, and in prosecution of the common object of the said assembly, they approached Abdul Khayoom and quarrelled with him, questioning as to why membership had not been granted to them in the Ershadul Muslim Sabha. Thereafter, without any provocation on the part of the deceased, near a henna shop situated along the Vypin–Munambam Public Road at Pazhangad Bhagom, the accused encircled the deceased and wrongfully confined him. The 1^st accused assaulted the deceased by fisting him; the 2^nd and 5^th accused pushed him, and the 4^th accused pushed and fisted him. While the other accused held the deceased, the 1^st accused kicked him, the 2^nd accused fisted him, and the 3^rd accused beat him with his bare hands. In the meantime, the 6^th accused caught hold of the deceased’s neck, and all the accused continued the assault repeatedly. When the deceased proceeded towards his car, the accused followed him, manhandled him and caused him to fall into the car. When certain bystanders who witnessed the incident intervened and attempted to restrain the accused, they were threatened by the accused. Further, due to the intimidating presence of the accused, those who had gathered at the spot were deterred from taking the injured to the hospital, and the deceased succumbed to the injuries sustained. Hence, the accused are alleged to have committed the offences mentioned above.

3. Upon completion of the investigation, the final report was laid before the Judicial First Class Magistrate-I, Kochi. Being satisfied that the case is one triable exclusively by a Court of Session, the learned Magistrate, after complying with all the necessary formalities, committed the case to the Court of Session, Ernakulam, under Section 209 of Cr.P.C. The learned Sessions Judge, having taken cognizance made over the case for trial and disposal to the Additional Sessions Court-VI, Ernakulam. On the appearance of the accused before the trial court, the learned Additional Sessions Judge, after hearing both sides under Section 227 of Cr.P.C. and upon perusal of the records, framed a written charge against the accused for offences punishable under Sections 143, 147, 342, 352 and 302 r/w 149 of the IPC. When the charge was read over and explained to the accused, they pleaded not guilty and claimed to be tried.

4 . During the trial, from the side of the prosecution, PW1 to PW19 were examined and marked Exts.P1 to P57. MO1 to MO4 were exhibited and identified. The contradictions in the 161 statements of the prosecution witnesses were marked as Exts.D1 to D16 from the side of the defence. After the completion of the prose