Kerala High Court Alters Murder Conviction in Robbery Case, Cites Lack of Intent to Kill

Ernakulam, Kerala – The Kerala High Court, in a significant ruling, has altered the conviction of an accused from murder under Section 302 of the Indian Penal Code (IPC) to culpable homicide not amounting to murder under Section 304 Part II IPC. The division bench, comprising Justice P.B.Suresh Kumar and Justice Jobin Sebastian , found that while the accused had knowledge that his actions were likely to cause death during a robbery, the prosecution failed to establish a clear intention to kill.

The Court delivered its judgment on June 16, 2025, in two connected criminal appeals: Crl.A.No.827 of 2023 filed by Abdul Khader .A.M @ Khadar (Accused No.1) challenging his conviction, and Crl.A.No.943 of 2023 filed by the State of Kerala challenging the acquittal of Abdul Arshad K. @ Arshad (Accused No.3).

Case Background

The case originates from the death of Subaida , a woman who was found murdered in her house on January 19, 2018, with her face, hands, and legs bound. Investigation revealed she was murdered on January 17, 2018, during an attempt to rob her of gold ornaments.

The prosecution's case was that four accused, in furtherance of a common intention, went to Subaida 's house. Accused 1 and 2 (the latter absconded) allegedly entered the house, rendered Subaida unconscious using a chemical substance on a cloth, robbed her gold ornaments, and bound her in such a manner that her nose and mouth were covered, leading to her death by smothering. Accused 3 and 4 (who later became an approver, PW1) allegedly waited in the car.

The Sessions Court, Kasaragod, had convicted Accused 1 ( Abdul Khader ) for offences under Sections 452 (house-trespass), 394 (voluntarily causing hurt in committing robbery), and 302 (murder) IPC, sentencing him to life imprisonment for murder. Accused 3 (Abdul Arshad) was acquitted.

Arguments Presented

For Accused 1 (Appellant in Crl.A 827/2023): The counsel, Adv. P.Rakesh Thamban, argued that the circumstantial evidence was insufficient to establish his client's complicity in the crime.

For the State (Respondent in Crl.A 827/2023 & Appellant in Crl.A 943/2023): The Special Public Prosecutor, Smt. Ambika Devi S, supported Accused 1's conviction but argued that Accused 3's acquittal was erroneous and sought its reversal, contending that the approver's testimony was sufficiently corroborated.

For Accused 3 (Respondent in Crl.A 943/2023): The counsel, Adv. Kodoth Sreedharan, argued that the trial court's view acquitting his client was plausible and did not warrant interference.

Court's Analysis and Key Findings

Conviction of Accused 1: From Murder to Culpable Homicide

The High Court meticulously analyzed the evidence, including the testimony of the approver (PW1), victim's acquaintances (PW3, PW4, PW5), a neighbour (PW6), the jeweller who bought the stolen gold (PW11), the investigating officer (PW45), and forensic evidence (PW31, doctor who conducted post-mortem).

Approver's Testimony and Corroboration: The Court found the approver's (PW1) testimony regarding Accused 1's involvement to be largely corroborated by other evidence. It dismissed objections to the validity of the pardon tendered to the approver, clarifying: > "There is no indication, at all, in Section 306 of the Code that a confession of the person concerned shall be recorded for the purpose of tendering a pardon to an accomplice. The only insistence in Section 306 is that the tender of pardon shall be subject to the condition that the person concerned shall make “full and true disclosure”..."

Presumption from Possession of Stolen Goods: The Court invoked Section 114, Illustration (a) of the Indian Evidence Act, as Accused 1 was found in possession (led to recovery) of the deceased's gold ornaments (MOs 1 to 4) shortly after the theft and murder. > "...it can safely be presumed that the first accused and another were the persons who committed theft of MOs 1 to 4 gold ornaments of Subaida , from her house."

Robbery and Homicide in Same Transaction: The Court concluded that Subaida 's death occurred during the same transaction as the robbery of her gold ornaments by Accused 1 and another.

Distinction Between Murder and Culpable Homicide: This was the crux of the alteration in conviction. The Court examined whether the act fell under Section 299 (culpable homicide) or Section 300 (murder) IPC. The judgment noted: > "The ante-mortem injuries noted on the body of the deceased at the time of post- mortem examination do not show that the injuries found on the body were injuries inflicted with the intention of causing such bodily injuries as is likely to cause death... The said allegations, according to us, are not sufficient to infer that accused 1 and another, intended to cause the death of Subaida ."

However, the Court found that the accused could be attributed with the knowledge that their act (tying cloth tightly over the victim's face, covering nose and mouth) was likely to cause death. > "From the said conduct of accused 1 and 2, according to us, they can certainly be attributed with the knowledge that the said act is likely to cause death. If that be so, the act committed by accused 1 and 2 would certainly fall within the third limb of Section 299 IPC. Needless to say, the act would amount to culpable homicide."

The Court then considered if this culpable homicide amounted to murder under "Fourthly" of Section 300 IPC (act so imminently dangerous that it must in all probability cause death). It concluded: > "There are no materials in the case on hand to satisfy the dual conditions aforesaid namely that accused 1 and 2 knew that the act committed by them...is so imminently dangerous that it must, in all probability, cause the death...and that they did the act without any excuse... Even if there is any doubt on this aspect, the benefit of the same has to go in favour of accused 1 and 2."

Thus, Accused 1's conviction was altered from Section 302 IPC to Section 304 Part II IPC.

Acquittal of Accused 3 Upheld

Regarding the State's appeal against Accused 3's acquittal, the High Court found that the trial court's decision was a possible view. The corroboration for the approver's (PW1) testimony against Accused 3 was deemed insufficient or unreliable. * PW6's ( Umbu ) testimony about seeing Accused 3 was found inconsistent with his prior statements. * PW7's (neighbour) identification of Accused 3 near the victim's house was considered unsafe due to lack of prior acquaintance, delay, and potential influence from newspaper reports. * PW11's (jeweller) claim that Accused 3 accompanied Accused 1 to sell gold was contradicted by PW1.

The Court concluded: > "The circumstances aforesaid, according to us, do not form a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and are not sufficient to hold that in all human probability, the act must have been done by the third accused."

Final Decision and Implications

The High Court delivered the following verdict: 1. Crl.A No.827 of 2023 (filed by Accused 1, Abdul Khader ): Allowed in part. * Conviction under Section 302 IPC (murder) altered to Section 304 Part II IPC (culpable homicide not amounting to murder). * Sentenced to rigorous imprisonment for ten years and a fine of Rs. 25,000/- for the offence under S.304 Part II IPC (in default of fine, simple imprisonment for three months). * The convictions under Sections 452 and 394 IPC by the trial court were implicitly upheld.

1. Crl.A No.943 of 2023 (filed by State against acquittal of Accused 3, Abdul Arshad): Dismissed.
   • The acquittal of Accused 3 was confirmed.

This judgment underscores the fine but crucial distinction between murder and culpable homicide, emphasizing the prosecution's burden to prove specific intent or knowledge as defined under the IPC. It also reiterates the principles of corroboration required for an approver's testimony and the high threshold for overturning an acquittal by an appellate court.