AJMAL VERSUS THE STATE OF KERALA

AJMAL VERSUS THE STATE OF KERALA


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 1838 of 2019
AJMAL                          APPELLANT(S)
VERSUS
THE STATE OF KERALA    RESPONDENT(S)
WITH
Criminal Appeal No. 1839 of 2019
AND WITH
Criminal Appeal No. 1840 of 2019
J U D G M E N T
Vikram Nath, J.
1. The   present   set   of   three   appeals   filed   by   accusedappellants   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.
5
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   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
accused­appellants 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:
1 IPC – Indian Penal Code, 1860
6
3.1. In   the   last   week   of   January,   2008,   there   were
festivals going on in the Church located at Thidanadu and
Variyanikkadu.   The   deceased­Varkeychen   @   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). 
7
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 accusedpersons 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   accused­appellants.   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.
8
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   accused­persons   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 injured­deceased 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 registered as FIR (Ext.P.­1).
4. The investigation was taken over by the Circle Inspector
(PW­20), who prepared the inquest report (Ext.­P2). The dead
9
body  was   sent   for  post­mortem,   which   was   conducted  by
Assistant Professor of Forensic Medicine and Deputy Police
Surgeon,   Medical   College   Hospital,   Kottayam   (PW­13)   at
about   2:05   p.m.  on   28.01.2008.     He   prepared   the   postmortem   report   (Ext.P­10)   mentioning   the   following   antemortem 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, 1­1.5 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.”
10
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 PW­1 to PW21   and   exhibited   as   many   as   74   documentary   evidence
marked as Exts:P­1 to P­74 and further produced 19 material
objects marked as MO­1 to MO­19. After the close of the
prosecution   evidence,   the   accused   were   examined   under
section 313 Cr.P.C. and the incriminating material was put to
them.   They   denied   all   such   circumstances   and   reiterated
their innocence. The Investigating Officer also conducted a
test identification parade. 
2 Cr.P.C. – Code of Criminal Procedure, 1973
11
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
12
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 deceased­Varkeychen @ George
Thomas was homicidal;
(ii)   that PW­1, PW­2 and PW­4 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 ante­mortem injuries suffered by the deceased is
in consonance with the report registered by PW­2
and also established from the statements of PW­1,
PW­2 and PW­4, who are the injured eye­witnesses.
(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
PW­1, PW­2 and PW­4. 
13
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 (MO­2) and a brick (MO­3), whereas,
the   injuries   caused   to   the   PW­1,   PW­2   and   PW­4   is   on
account of the assault by accused no.3 by using a stick (MO1). 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.
14
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 pre­meditation 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   motor­bikes,   that   the
accused­appellants 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
15
grievous hurt and may be injuries, which could result
into death. 
(v) it is true that the injuries noted in the post­mortem
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. 
(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 eye­witnesses
and injured namely, PW­1, PW­2 and PW­4, according to
which, the charge under section 302 ought to have been
16
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   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
17
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
18
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 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 preplanned   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
19
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, PW­1, PW­2 and PW­4. 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 pre­planned
murder.   Even   after   having   caused   the   fatal   injuries,   the
accused   further   tried   to   prevent   the   deceased   from   being
20
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 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.
3 2021(12) JT 134
21
(iv) PW­1, PW­2 and PW­4, the three eye­witnesses 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
22
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 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.
4 (2021) 10 SCC 706
23
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 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,
5 1976 (4) SCC 382
6 (2006) 11 SCC 444
24
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
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 eye­witnesses.
25
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
PW­1 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 PW­1, PW­2 and PW­4 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
26
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 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
cross­examination, 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.
20. The Trial Court had acquitted 4 (four) accused namely
accused nos.4, 5, 7 and 10 and the High Court acquitted
27
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 Part­II IPC for the following reasons:
(i) There   was   no   pre­meditation   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.
28
(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.
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.
29
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 Part­II 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   Part­II   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.
30
25. Appeals stand partly allowed as above.   The impugned
judgment of the High Court stands modified to the aforesaid
extent.
…………..........................J.
[AJAY RASTOGI]
………….........................J.
[VIKRAM NATH]
NEW DELHI
JULY 12, 2022. 


1
ITEM NO.1503 COURT NO.9 SECTION II-B
 S U P R E M E C O U R T O F I N D I A
 RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1838/2019
AJMAL Appellant(s)
 VERSUS
THE STATE OF KERALA Respondent(s)
(IA No. 138723/2019 - EXEMPTION FROM FILING O.T.)
(IA No. 111141/2019 - EXEMPTION FROM FILING O.T.)
(IA No. 181777/2019 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/
FACTS/ANNEXURES)
(IA No. 138721/2019 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/
FACTS/ANNEXURES)
WITH
Crl.A. No. 1839/2019 (II-B)
(IA No. 149320/2019 - EXEMPTION FROM FILING O.T.)
(Crl.A. No. 1840/2019 (II-B)
(IA No. 153460/2019 - EXEMPTION FROM FILING O.T.)
Date : 12-07-2022 These matters were called on for pronouncement of
Judgment today.
For Appellant(s) Mr. P. V. Dinesh, AOR
Mr. Ashwini Kumar Singh, Adv.
Mr. Bineesh K., Adv.
 Mr. Harikumar V., AOR
Mr. Anupam Mishra, Adv.
Mr. Jenis V. Francis, Adv.
Ms. P. S. Chandralekha, Adv.
Mr. N. Hariharan, Sr. Adv.
Mr. Shinoj K. Narayanan, Adv.
 Mr. K. Rajeev, AOR

For Respondent(s) Mr. Harshad V. Hameed, AOR
Mr. Dileep Poolakkot, Adv.
Ms. Ashly Harshad, Adv.

Hon’ble Mr. Justice Vikram Nath pronounced the reportable
Judgment of the Bench comprising Hon’ble Mr. Justice Ajay Rastogi
2
and His Lordship.
The operative portion of the Judgment is reproduced
hereunder:-
“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.”
3
Pending interlocutory application(s), if any, is/are disposed
of.
(JAYANT KUMAR ARORA) (RENU BALA GAMBHIR)
ASST. REGISTRAR-CUM-PS COURT MASTER
(Signed reportable Judgment is placed on the file)
4

Comments

Popular posts from this blog

100 Questions on Indian Constitution for UPSC 2020 Pre Exam

संविधान की प्रमुख विशेषताओं का उल्लेख | Characteristics of the Constitution of India

भारतीय संविधान से संबंधित 100 महत्वपूर्ण प्रश्न उतर