Mani vs The State Of Kerala

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 540 OF 2019 (ARISING OUT OF S.L.P. (CRL.) NO. 7378 OF 2016)

MANI .......APPELLANT

VERSUS

STATE OF KERALA AND OTHERS ........RESPONDENTS

WITH

CRIMINAL APPEAL NO. 541 OF 2019 (ARISING OUT OF S.L.P. (CRL.) NO. 9466 OF 2016)

STATE OF KERALA ..…..APPELLANT

VERSUS

RATHNAKUMAR AND OTHERS .……..RESPONDENTS

JUDGMENT

Hemant Gupta, J.

The challenge in the present appeals is to a judgment dated

Signature Not Verified 02.02.2016 maintaining conviction of the appellant-Mani for an offence Digitally signed by MANISH SETHI Date: 2019.04.01 18:46:49 IST under Section 302 IPC, whereas, conviction of the other accused i.e. Reason:

accused No.2-Rathnakumar, 3-Praveen and 4-Selvaraj was maintained

1 for offences under Sections 324 and 341 read with 34 IPC while

acquitting the said accused for an offence under Section 302 IPC.

2. Criminal Appeal No. 540 of 2019 is against the conviction of

accused No. 1 for an offence under Section 302 IPC, whereas, Criminal

Appeal No. 541 of 2019 is against the acquittal of accused No.2-

Rathnakumar, 3-Praveen and 4-Selvaraj (Respondent Nos. 2-4) under

Section 302 read with 34 IPC. The parties herein shall be referred to as

before the Trial Court.

3. PW2-Vishwanathan son of Kunchu lodged a First Information

Report at about 11.00 PM on 28.09.2005 in respect of an incident

which occurred same day at about 8.10 PM on a slope near Rosy

School, Chozhiyamkod. The statement is that the Accused 1 to 4 who

are BJP sympathisers, in connivance and conspiracy with each other

with the intention and preparation to kill the complainant and others

who are CPM sympathisers, due to political enmity, collected

dangerous weapons of knife, Vadival sword and iron rod, came in

motorcycles in front of Rosy School, Chozhiyamkod. They illegally

stopped the complainant and his friends. The accused No.1-Mani

stabbed Soman, whereas, accused No.2-Rathnakumar attacked

complainant with Vadival sword on his face and accused No.3- Praveen

gave beatings to Ashraf PW3 with iron rod.

4. Shri V. Pazhanimala, A.S.I., Vadakkancheri Police Station recorded

such statement and took over investigations. He recorded the

statement of Vishwanathan-PW2 under Section 161 Criminal Procedure

2 Code1. In his police statement, he stated that at about 8.00 PM on

28.09.2005 he along with (2) Kabir son of Muhammed, (3) Ashraf son of

Sheri, (4) Soman son of Appunni, (5) Rajesh son of Karuman, (6) Anil

Kumar son of Velayudhan, (7) Sajeesh and (8) Sanoj sons of Kumaran

Vadukathodiyil were standing near the Mangalam old post office. They

were talking about success of the party in the elections. They received

information that BJP people are creating troubles at Chozhiyamkod.

Eight of them moved towards the Chozhiyamkod. When they reached

the slope of the road in front of Rosy School, they saw two motorcycles

coming from opposite side. Both the motorcycles stopped. Under the

light of torch, they found that the four accused were armed with

Vadival swords, knives and iron rod and came running towards them.

Accused 1-Mani shouted that who is CPM worker, cut and kill him and

he stabbed Soman on his chest with knife. He went to stop him, then

accused No. 2-Rathnakumar hit him with Vadival sword but he

withdrew his head and sword landed on his right cheek. The second

attack landed on his nose. He saw accused No. 3-Praveen coming to

Ashraf PW3 with a long thing in his hand. He stated that all eight of

them were injured. On alarm being raised Manikandan son of

Madhavan, Vadakkethara Puzhakkal Parambu and Siju sons of

Chamunni, Vadukathodi came running but the assailants ran away.

Injured were taken to Hospital in the ambulance. Doctor reported that

Soman had been brought dead, whereas, he and Rajesh had received

grievous injuries. On completion of investigation, seven persons were

1 Code

3 made to stand trial including three Vinod, Mohanan and Selvaraj

charged with offence under Section 212 read with 34 IPC. These three

were later acquitted of the charges by the learned Trial Court itself.

5. The learned Trial Court convicted accused Nos. 1 to 4 to undergo

imprisonment for life and also sentenced to undergo simple

imprisonment for one month for an offence under Section 341 read

with 34 IPC and also rigorous imprisonment for a period of six months

under Section 324 read with 34 IPC by its judgment dated 24.11.2011.

6. The entire prosecution case is based upon injured witnesses

examined as PW2-Vishwanathan, PW3-Ashraf Ali, PW10-Rajesh and

PW13-Anil Kumar. The argument of learned senior counsel for the

appellant-Mani is that the appellant has received injury in the

occurrence on 28.09.2005 as is made out from the Injury Report as Ex.

D-2, wherein, he has stated that at about 7.30 PM, he was beaten with

stick by PW2-Vishwanathan, Muhammed Ali, Manikandan, PW3-Ashraf

and about thirty other persons. The injury is lacerated wound 5 cms on

forehead with fresh bleeding and contusion. It is thus contended that

the appellant had acted in right of private defence, therefore,

conviction of the appellant for an offence under Section 302 cannot be

sustained.

7. It is argued that as per the prosecution case itself, the victims

were eight in number who were proceeding towards Chozhiyamkod

side on being informed that there is disturbance at Chozhiyamkod as

sari of one of the BJP workers caught fire in the crackers bursted while

4 celebrating victory of CPM in Panchayat elections. However, it is

argued that there is no evidence on the part of the prosecution that

there was any skirmish at Chozhiyamkod. No witness from the above

said locality has been examined. The alleged eight victims were on

their way to Chozhiyamkod as per their statements. It is argued that

the accused were riding motorcycles unmindful of the fact that the

victims’ group is proceeding towards Chozhiyamkod. Since, the victims

were in large number and suddenly confronted accused, therefore, the

appellant has only tried to save himself.

8. It is argued in the alternative that even if benefit of right of

private defence is not given to the appellant, it was a case of sudden

fight without any premeditation and therefore, conviction of the

appellant for the offence under Section 302 cannot be sustained. It is a

case for conviction for offence under Section 304 Part II.

9. On the other hand, learned senior counsel for the State argued

that all the injured witnesses are consistent that it is on the exhortation

of the appellant- Mani, they have attacked the victims. The learned

senior counsel for the State also submitted that the accused Nos. 2 to

4, were part of the assailants who attacked the victims with weapons

like Vadival sword, knife and iron rod. It is a case of common intention

as all the accused were coming on two motorcycles together, inflicted

injuries and then ran away together. The common intention is required

to be inferred on the basis of circumstances which clearly proves that

the accused had the intention of murderous assault on the victims.

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10. It is argued that the common intention may arise at the spur of

the moment; therefore, it is not necessary that when the accused

reached near the Rosy School, they may not have common intention

but when they saw the victims, they decided to assault the victims and

such attack is by framing common intention.

11. We find that the statement of the witnesses in respect of injuries

caused is not consistent. Though all the witnesses have consistently

deposed that Mani has stabbed Soman deceased and he exhorted

other to attack. The statement to the Police by PW2-Vishwanathan is

that they received the information that the accused are creating

trouble at Chozhiyamkod side. While appearing as PW2, Vishwanathan

deposed that two-three persons came and told that BJP sympathisers

are creating trouble. In the cross-examination, PW2 admitted that

incident of “sari burning” is a hearsay. PW3-Ashraf Ali deposed that

when they were standing near the slope of Rosy School, two-three

persons from Chozhiyamkod came and told that the flag of BJP is

missing and BJP people are creating trouble. They were walking to the

said spot to ascertain as to what the problem was, when they saw two

bikes coming from the west direction. But no person has been

examined in respect of trouble being created by any person at

Chozhiyamkod either on account of burning of sari or of missing of BJP

flag.

12. In the First Information Report, PW 3-Asraf is said to be assaulted

with iron rod by Accused 3–Praveen; whereas the Accused 2-

6 Rathnakumar is said to have attacked complainant with Vadival sword.

But in evidence, PW3-Ashraf Ali deposed that Accused 2-Rathnakumar

hit him on his nose, left hand and left shoulder, whereas, accused 4-

Selvaraj is said to have hit him with a cricket stump.

13. Accused 2-Rathnakumar is said to have inflicted injury on PW2-

Vishwanathan but Rathnakumar (A2) is said to have caused injury to

PW3-Ashraf Ali. In the First Information Report, there is no allegation

that accused 4-Selvaraj had a cricket stump in his hand.

14. PW10-Rajesh deposed in the same manner as made by other two

witnesses except that he deposed that accused No. 1-Mani, accused

No. 3-Praveen and accused No.2-Rathnakumar had knives in their

hands and Selvaraj had a cricket stump in his hand. Accused 3-Praveen

is said to have stabbed him using knife in his hand, on left hand and

index finger and chest also and when he turned, he stabbed on the

back and on the left shoulder as well. He did not know whether BJP

people knew that the victims were standing at the place of occurrence.

15. PW13-Anil Kumar deposed that accused 2-Rathnakumar had

knife in his hand and caused injury on his left forehead. Accused 4-

Selvaraj gave him beatings with cricket stump. On the basis of such

evidence and Post-Mortem Certificate Ex. P-1 proved by PW8-Dr.P.C.

Ignatius, the High Court held that there is no reason to convict accused

Nos. 2-4 with the aid of Section 34 IPC except that there was

commotion in which victims were injured. The High Court placed

reliance upon Supreme Court judgments reported as Dharam Pal and

7 Others v. State of Haryana2 and Nand Kishore v. State of

Madhya Pradesh3.

16. While appreciating the evidence of the four injured witnesses,

the High Court returned findings that such witnesses have already

been decided to go to Chozhiyamkod side, hearing about the trouble

created by the BJP sympathisers, but the said fact will not mean that

the accused carried common intention to do away with the members of

the other group. The High Court recorded the following findings:

“54. It is extremely difficult to accept the finding of the court below. Relying on the principles laid down in the various decisions referred to above and applying the test laid down therein, it is difficult to come to the conclusion that the fatal stab injury was inflicted as in furtherance of the common intention shared by the accused persons.

55. First of all, the accused persons had no notice that the victims would come to Chozhiyamkod to find out what the commotion created by the BJP sympathisers about and much less they had any knowledge about Soman coming in that group. It may be true that the two groups were at loggerheads. But that is far from saying that one of the groups always carries a common intention to do away with the members of the other group.

56. Even going by the prosecution sequence of events, the stab inflicted on Soman was a spontaneous and sudden act committed by the first accused and there seems no materials to come to the conclusion that the said act committed by the first accused was in

2 AIR 1978 SC 1492 3 AIR 2011 SC 2775

8 furtherance of the common intention shared by the other accused persons. Probably, from the evidence, it would appear that the other accused persons namely, accused Nos. 2, 3 and 4 did not anticipate such an act from the first accused and they were taken aback by the said act of the first accused. It would appear that the accused persons who had far outnumbered by the victims’ group might have apprehended assault from them and that is probably the reason why PWs 2, 3, 10 and 13 would say that soon the members of the assailants group began brandishing the knives to keep the victims at bay. This Court is not omitting to note the fact that the injuries were inflicted on PWs 2, 3, 10 and

13.

*** *** ***

59. It is extremely difficult to accept the finding of the court below that the act committed by the first accused of inflicting a fatal stab on Soman was in furtherance of the common intention of accused Nos. 1 to 4 for reasons already stated. The conviction of accused Nos. 2 to 4 by taking aid of Section 34 of IPC in the facts and circumstances of the case seems to be a misplaced one.”

17. The High Court also found that the infliction of injuries on the

injured witnesses cannot be said to be in furtherance of common

intention, as it cannot be said that initial injury by the appellant-Mani is

a consequence of the common intention shared by the accused. The

High Court found that though the witnesses have been injured but the

injuries are not serious.

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18. We do not find any error in the order passed by the High Court

that there was no common intention in causing death of Soman. The

prosecution has not produced any evidence showing that the accused

were present at the place of occurrence at Chozhiyamkod or that they

were part of the group creating trouble at that place. There is no

evidence that any incident occurred at that place either of burning of

sari due to fire crackers or of missing of flag. Therefore, genesis to the

dispute has not been proved by the prosecution.

19. The victims were eight in number and in a jubilant mood to

celebrate the victory of their party in the panchayat elections. They

decided to go towards Chozhiyamkod side. The accused suddenly

came from the opposite direction on two motorcycles. One of the

accused received injuries as well which fact is admitted by one of the

witnesses PW2-Vishwanathan also.

20. Be that as it may, the fact remains that all the injured witnesses

have consistently deposed the death of Soman by the appellant. The

injury received by the appellant is not serious, therefore, he could not

have attacked the deceased on chest which is vital part, as such injury

is likely to cause death. Therefore, the appellant is not entitled to right

of private defence which does not extend to inflict more harm than it is

necessary in exercise of right of private defence. Therefore, the plea

that the appellant acted in his private defence is not made out.

21. However, the appellant-Mani came from west direction at the

place of occurrence riding on a motorcycle. The accused had no

10 knowledge or information that the victims are moving towards

Chozhiyamkod. The prosecution witnesses have deposed that the

accused or the victims did not have any personal enmity except

political differences. The appellant was suddenly confronted with the

victims and in the fight ensued in which the injuries came to be

inflicted upon the deceased and other victims.

22. In view of sudden fight without any premeditation, the conviction

of the appellant for an offence under Section 302 is not made out. The

cause of death of the deceased is knife blow on the chest of the

deceased-Soman. Such injury is with the knowledge that such injury is

likely to cause death, but without any intention to cause death. Thus,

the death of Soman is a culpable homicide not amounting to murder as

the death has occurred in heat of passion upon a sudden quarrel falling

within Exception 4 of Section 300 of IPC. Therefore, it is an offence

punishable under Section 304 Part I, IPC.

23. It is pointed out that the appellant has undergone more than

seven years of actual imprisonment. Therefore, keeping in view the

background and the circumstances in which the occurrence happened,

we find that the sentence imposed on the appellant is warranted to be

modified to as already undergone while maintaining fine of Rs. 20,000/.

24. In view of the above discussion, Criminal Appeal No. 540 of 2019

filed by the appellant-Mani is partly allowed and Criminal Appeal No.

541 of 2019 filed by the State of Kerala is dismissed.

11 .………..………...........................J. (Dr. Dhananjaya Y. Chandrachud)

....…….......................................J. (Hemant Gupta) New Delhi, April 1, 2019.

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