REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1693  OF 2008 ARISING OUT OF

SPECIAL LEAVE PETITION (CRL) NO. 7995 OF 2007

SOMON … APPELLANT

VERSUS

STATE OF KERALA … RESPONDENT

J U D G M E N T C.K. THAKKER, J.

1. Leave granted.

2. The  present  appeal  is  filed  against

the judgment and order of conviction recorded

by  the  First  Additional  Sessions  Judge,

Pathanamthitta on January 09, 2002 in Sessions

Case No. 48 of 1996 and confirmed by the High

Court of Kerala on January 19, 2004 in Criminal

Appeal No. 131 of 2002.

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3. To appreciate the points raised by the

appellant  herein,  few  relevant  facts  may  be

stated.

4. It  was  the  case  of  the  prosecution

that six accused in Sessions Case No. 48 of

1996, in prosecution of their common object to

cause death of Balan on account of previous

enmity  formed  themselves  into  an  unlawful

assembly on May 25, 1995 at about 1.30 p.m.

near the Forest out post in Maniyar Nalumakku

and committed an offence of rioting.  They were

armed with deadly weapons like sword, stick,

chopper, crackers, etc. and caused injuries to

Balan and also to PW 2 Uthaman.  Balan was

taken to Medical College Hospital, Kottayam on

the same day at about 5.30 p.m. where he was

declared dead. All the accused were, therefore,

charged for commission of offences punishable

under Sections 143, 148, 323 and 302 read with

Section  149,  Indian  Penal  Code,  1860  (IPC).

They were also charged under Sections 3 and 5

of  the  Explosive  Substances  Act,  1908.  The

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Judicial Magistrate, Ranni committed the case

under  Section  209  of  the  Code  of  Criminal

Procedure, 1973 since the case was exclusively

triable by a Court of Session.

5. In  support  of  the  case,  prosecution

examined 18 witnesses.  Certain witnesses who

had seen the incident and were examined by the

prosecution  did  not  support  the  prosecution

case and were treated ‘hostile’.  On the basis

of  other  evidence  including  the  evidence  of

injured  witnesses  as  also  referring  to  the

evidence of (‘hostile’) witnesses coupled with

the  evidence  of  PW  3  Rahmathulla  Rawther,

Forest Guard, who was an independent witness,

the trial Court recorded a finding that the

incident in question did take place in which

Balan  was  killed.  The  trial  Court,  after

appreciating the evidence on record held that

it was proved that accused Nos. 1, 2, 4 and 6

shared  common  intention  to  commit  murder  of

deceased Balan and hence they were liable to be

convicted  for  an  offence  punishable  under

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Section 302 read with Section 34, IPC.  It also

held that accused Nos. 1-4 were liable to be

convicted under Section 147, IPC.  Similarly,

accused  Nos.  5  and  6  were  liable  to  be

convicted under Section 148, IPC.  Accordingly,

punishments were imposed on them.

6. Being  aggrieved  by  the  order  of

conviction  and  sentence,  all  the  accused

approached  the  High  Court.   The  High  Court

again  considered  the  evidence  on  record  and

held that conviction and sentence recorded by

the trial Court against accused Nos. 2-6 could

not be said to be legal and in accordance with

law.   They  were,  therefore,  ordered  to  be

acquitted  of  all  the  charges.   So  far  as

accused No. 1 (appellant herein) is concerned,

it held that conviction recorded by the trial

Court  against  him  for  an  offence  punishable

under Section 302, IPC was well-founded and was

accordingly confirmed.

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7. It  is  against  the  said  order  of

conviction recorded by the High Court that the

appellant has approached this Court.

8. On  December  10,  2007,  this  Court

issued notice limited to the nature of offence.

The Registry was directed to place the matter

for final hearing and accordingly, the matter

has been placed before us.

9. We have heard the learned counsel for

the parties.

10. The learned counsel for the appellant

contended  that  the  order  of  conviction  and

sentence  recorded  against  the  appellant  was

contrary to law and against the evidence on

record. He submitted that when the High Court

acquitted  accused  Nos.  2-6  disbelieving  the

evidence  of  prosecution  witnesses,  no

conviction could have been recorded against the

appellant  herein  on  the  basis  of  the  same

evidence and benefit of doubt ought to have

been given to appellant also by acquitting him.

Alternatively,  it  was  submitted  that  when

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accused  Nos.  2-6  were  acquitted  of  all  the

charges, no conviction of appellant could have

been  recorded  substantively  for  an  offence

punishable under Section 302, IPC.  Hence, in

any case, conviction of the appellant for an

offence  punishable  under  Section  302,  IPC

deserves to be set aside. The counsel submitted

that no injury had been caused to the deceased

on head, face or vital part of the body and

considering the said important aspect, Section

300, IPC could not have been invoked by the

Courts. At the most, it was a case of homicidal

death not amounting to murder punishable under

Part I or Part II of Section 304, IPC.  It was,

therefore,  submitted  that  in  any  case  the

appeal deserves to be allowed to that extent.

11. Learned counsel for the State, on the

other hand, supported the order of conviction

and sentence.

12. Having heard the learned counsel for

the  parties  and  having  gone  through  the

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relevant  record,  in  our  opinion,  the  appeal

deserves to be partly allowed.

13. So far as the order of conviction is

concerned, apart from the fact that at the time

of  issuance  of  notice  on  Special  Leave

Petition,  this  Court  had  expressly  observed

that it was limited to ‘the nature of offence’,

even on the basis of evidence and material on

record, we are satisfied that both the Courts

were  right  in  holding  that  accused  No.  1

(appellant  herein)  had  caused  injuries  to

deceased Balan. There is no infirmity in the

said finding.

14. While  exercising  power  under  Article

136 of the Constitution, this Court does not

re-appreciate the evidence as a regular Court

of Appeal. A finding has been recorded by the

trial Court and confirmed by the High Court on

evidence as to the guilt of the appellant, and

we are of the view that the Court was justified

by issuing notice in December, 2007 as to the

‘nature of offence’.  We, therefore, reject the

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contention  of  the  learned  counsel  for  the

appellant  that  the  appellant  is  entitled  to

benefit  of  doubt  and  be  set  at  liberty  by

extending  benefit  which  had  been  granted  to

other accused.

15. As far as the ‘nature of offence’ is

concerned, in our opinion, the submission of

the learned counsel for the appellant is well-

founded. In this connection, our attention has

been invited by the counsel to deposition of PW

8  Dr.  V.S.  Umesh,  Deputy  Police  Surgeon

attached to General Hospital, Pathanamthitta.

He stated that post mortem was conducted by Dr.

T.V. Velayudhan, Deputy Police Surgeon attached

to Medical College Hospital, Kottayam who had

died by the time the case came up for trial. He

further stated that he knew the handwriting of

Dr.  Velayudhan  who  had  prepared  post  mortem

certificate  (Ex.  P-9)  and  identified  his

signature.

16. Ex.P-9 contains following injuries:

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1. Incised  gaping wound 7x4 cm over the back and outer aspect of right forearm  7.5  cm  below  the  elbow with a maximum depth of 3.5 cm in the  middle  and  tapering  towards the ends. The wound cuts muscles, nerves, blood vessels and cut the radius completely.

2. Skin  deep  incised  wound  5x5  cm over the front of right leg 19 cm below the knee.

3. Incised  gaping  wound  4x2  cm oblique  over the front and outer aspect  of  left  forearm  8.5  cm below  the  elbow  with  a  maximum depth of 3.8 cm in the middle.

4. Incised  gaping  wound  10x3  cm nearly horizontal over the back of left leg 8 cm below the knee with a maximum depth of 6.2 cm in the middle  and  tapering  towards  the ends.  The  wound  cut,  muscles nerves,  blood  vessels  and  tibia completely.

5. Incised  gaping  wound  10x5.5  cm oblique  over the outer aspect of left leg 10 cm below the knee with a maximum depth of 3.8 cm in the middle  and  tapering  towards  the ends.

6. Abrasion  4.3  x  0.3  cm  vertical over  the  back  of  left  side  of chest 7 cm to the left of midline and 10.5 cm below the top line of shoulder.

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17. It was stated that combined effect of

injury Nos. 1, 3, 4 and 5 was sufficient in the

ordinary course of nature to cause death.

18. Looking to the injuries sustained by

the deceased which were not on head, face or

vital part of the body, but on arms, legs etc.

coupled with the fact that in all, there were

six  accused  and  though  all  of  them  were

convicted by the trial Court, the High Court

extended benefit of doubt to accused Nos. 2-6,

in  our  opinion,  the  counsel  is  right  in

submitting  that  on  the  facts  and  in  the

circumstances of the case, it cannot be said

that  the  appellant  herein  had  committed  an

offence punishable under Section 302, IPC. Even

the trial Court did not convict the appellant

substantively for an offence punishable under

Section 302, IPC. He was convicted with other

accused for an offence punishable under Section

302 read with Section 34, IPC. In our view, on

the facts of the case and injuries sustained by

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the deceased, the case is covered by Section

304 Part I, IPC.

19. We  are  fortified  in  our  view  by  a

decision of this Court in Kapur Singh v. State

of Pepsu,  AIR 1956 SC 654. In that case, the

appellant was convicted for offence punishable

under  Section  302,  IPC.  According  to  the

prosecution  case,  the  appellant  had  caused

death of the deceased while one Chand Singh

held  the  victim.  Eighteen  injuries  were

inflicted on the deceased on the arms and legs

with gandasa.

20. Converting  conviction  of  the  accused

from Section 302 to Section 304 Part I, this

Court observed;

“It is significant that out of all the injuries which were thus inflicted none was inflicted on a vital part of the body. The appellant absconded and his  companion  was  in  the  meantime convicted of an offence under Section 302 and a sentence of transportation for life was imposed on him, which was confirmed  by  the  High  Court.  The appellant was arrested thereafter and his trial resulted in his conviction under  Section  302.  The  learned

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Sessions Judge awarded him a sentence of  death  subject  to  confirmation  by the High Court. The High Court, in due course, confirmed the death sentence”.

21. The Court further observed;      “The fact that no injury was inflicted  on  any  vital  part  of  the body of the deceased goes to show in the  circumstances  of  this  case  that the intention of the appellant was not to  kill  the  deceased  outright.  He inflicted  the  injuries  not  with  the intention  of  murdering  the  deceased, but caused such bodily injuries as, he must  have  known,  would  likely  cause death having regard to the number and nature of the injuries”.

22. Thus,  though  eighteen  injuries  were

caused and the deceased met with death, this

Court held that since the injuries were caused

on arms and legs, the case could be said to be

covered  by  Part  I  of  Section  304,  IPC  and

accordingly,  conviction of  the appellant  was

converted into Section 304, Part I from Section

302, IPC.

23. In  view  of  the  above  facts,  in  our

opinion, ends of justice would be met if we

convert conviction of the appellant herein from

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an offence punishable under Section 302, IPC to

an offence punishable under Section 304 Part I,

IPC.

24. So far as sentence is concerned, from

the  record  it  appears  that  initially  the

appellant had remained in jail for more than a

month. After his conviction, again he was taken

to custody on January 16, 2003 and is in jail

all throughout.  Thus the appellant is in jail

since more than five years.   

25. On the facts and in the circumstances

of the case, we are of the view that interests

of  justice  would  be  met  if  we  reduce  the

sentence  of  the  appellant  to  the  sentence

already undergone.  

26. The appeal is accordingly allowed to

the above extent and the appellant herein is

ordered to be set at liberty if not required in

any other case.

…………………………………………………J. (C.K. THAKKER)

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…………………………………………………J. (D. K. JAIN)

New Delhi. October 24, 2008.  

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