Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 564

SUPREME COURT OF INDIA
AJAY RASTOGI, VIKRAM NATH, JJ.
Ajmal - Appellant
Versus
The State Of Kerala - Respondent
Criminal Appeal No. 1838 to 840 of 2019
Decided on : 12-07-2022

Advocate Appeared:
For the Appellant :P. V. Dinesh, Ashwini Kumar Singh, Bineesh K., Harikumar V., Anupam Mishra, Jenis V. Francis, P. S. Chandralekha, N. Hariharan, Shinoj K. Narayanan, Mr. K. Rajeev, Advocates
For the Respondent:Harshad V. Hameed, Dileep Poolakkot, Ashly Harshad, Advocates

IMPORTANT POINT
Unintentional homicide is not murder under Section 302 of IPC.

Headnote:
Indian Penal Code, 1860 – Sections 302, 341, 323, 324 and 427 read with Section 34 – Murder, wrongful restraint, hurt and mischief – Common intention – Life sentence – FIR was promptly lodged – Prosecution story as set up in FIR appears to be probable – Medical evidence fully corroborates prosecution story – Three eyewitnesses have fully supported prosecution story – Formal witnesses have discharged their burden by proving police papers and other documentary evidence placed on record by prosecution – However, present case falls into category of a culpable homicide not amounting to murder falling under Section 304 Part-II IPC – All accused were not armed when they stopped vehicle of deceased and his friends and compelled them to alight from the same – It was during verbal altercation at that stage that three accused picked up weapon of assault (Sticks and brick) from road side – Single blow was given to deceased by accused – Case set up for exhortation to kill deceased has not been found to be proved – 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 conviction upheld by High Court and sentence for charges under Sections 341, 323, 324 and 427 read with Section 34 IPC maintained – Sentence modified to period already undergone. (Paras 15, 19, 21, 23 and 24)
Facts of the case:
Present set of three appeals filed by accused-appellants assail 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 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. 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.
Findings of Court:
Although, role of exhortation to kill the deceased was assigned to accused No.3, but during trial and in cross-examination, all the three witnesses PW1, PW2 and PW4 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.
Result : Appeals Partly allowed.

JUDGMENT :

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[IPC – Indian Penal Code, 1860] 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 chargesheeted. 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 motorbikes driven by accused no.9 (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 motorcycle, driven by A3 (Ajmal). At that time, a verbal altercation took place between Saji Joseph (PW1) 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 MO2). Whereas accused no.2 (Ashique Salam) hit on the back of his neck with a brick (marked as MO3), as a result of these two injuries, deceased fell on the road. Accused no. 3 (Ajmal) assaulted Saji Joseph (PW1) with a stick of casuarina tree (marked as MO1) 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 (PW2) on his statement, which was regist