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