R. Baiju vs The State Of Kerala

2025 INSC 488 Non-Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Special Leave Petition (Crl.) No.12926 of 2024

R. Baiju ...PETITIONER

VERSUS

The State of Kerala ...RESPONDENT

J U D G E M E NT

K. VINOD CHANDRAN, J.

1. A very common place altercation escalated into a

terrorizing attack leading to the death of a person and

injuries to three others. The investigation changed

hands several times, which also had political overtones,

despite which the prosecution resulted in the conviction

by the Trial Court of all the accused for the offences

punishable under Sections 143, 147, 323, 324, 427, 449 &

Signature Not Verified 302 read with Sections 149 and 120B of the Indian Penal Digitally signed by Jayant Kumar Arora Date: 2025.04.16 16:30:55 IST Reason: Code, 18601.

1 The IPC Page 1 of 19 SLP(Crl.) No. 12926 of 2024

2. The sixth accused, the appellant herein, who was

roped in on the charge of conspiracy, for the earlier

incidents, his presence at the crime scene and the

exhortation made to kill, was handed down the

sentence of death, being the main conspirator and the

others were sentenced to imprisonment for life. In

appeal, the High Court acquitted the fifth accused and

modified the conviction of accused No.1 to 4 and

altered the conviction under Section 302 read with

Section 149 of IPC to Section 304 Part II read with

Section 34 of IPC and convicted the sixth accused, who

is the sole appellant herein under Sections 323, 324,

427, 450 and 304 Part II of IPC read with Section 120B of

IPC. The appellant herein was sentenced under Section

450 read with Section 120B to undergo rigorous

imprisonment for 5 years together with fine of

Rs.10,000/- and also sentenced to RI for 10 years under

Section 304 Part II read with Section 120B of IPC with a

fine of Rs. 25,000/- and default sentences of one year

each. The sentence for the offences under Section 323,

324, 427 of IPC by the Trial Court stood confirmed.

Page 2 of 19 SLP(Crl.) No. 12926 of 2024

3. We heard Sh. Abhilash M.R learned counsel

appearing for the appellant. It was argued that A6 was

roped in as the main conspirator who had not joined the

frontal attack alleged by the prosecution on the

deceased and his family members. A5 was acquitted

and A6, whose role was identical to A5, was convicted,

erroneously. It is argued that PWs 1 to 3, the daughter-

in-law, son and wife of the deceased did not name A6 in

the initial statement given under Section 161 of the

Code of Criminal Procedure, 19732 and was included

only later in the statements given under Section 164

Cr.P.C. The reliance placed on PW7 is untenable since

he belongs to a rival political party and there were

cases pending between him and A6, clearly indicating

an intention to somehow inculpate A6.

4. Even if the attack based on a conspiracy, as alleged

by the prosecution is believed, none of the accused

carried any weapons into the house of the deceased.

The wooden logs which are alleged to have been used

by the accused were lying at the scene of occurrence,

2 The Cr.P.C.

Page 3 of 19 SLP(Crl.) No. 12926 of 2024 the house of the deceased. The learned counsel has

also placed before us a number of decisions to rubbish

the conspiracy theory, set up by the prosecution, which

was also not proved. There was only the interested

testimony of PW7 pointing to the conspiracy alleged

and there is total failure to establish a common intention

under Section 34 IPC. The High Court erred in entering

a conviction under Section 304 Part II IPC, since no

knowledge that the act is likely to cause death can be

attributed to A6.

5. We have anxiously considered the judgment of the

High Court, which is rather elaborate and deals

minutely with the evidence. On facts, the genesis; which

also has a bearing on the conspiracy alleged, is with the

incident that happened in the afternoon, on the crucial

day, in the house of the deceased. A6 along with others

came to the house of the deceased to sell coir mats

manufactured by Kudumbasree; a self-help group of

women, constituted in every Panchayat under the aegis

of the State through the local bodies. PW2 was first

approached who directed them to the deceased, his

Page 4 of 19 SLP(Crl.) No. 12926 of 2024 father, who refused to make a purchase, despite the

insistence of A6. Enraged A6 threw a mat at the

deceased and asked him to burn it if he does not want

it. The deceased then directed PW2, his son to raise a

query in the Ward Council Meeting as to whether the

purchase of coir mats from the Kudumbasree unit was

compulsory or not. Here we pause, to notice that A6 was

a Municipal Councillor and the Chairman of the

Municipal Standing Committee, and an influential

leader of the political party which ruled both the State

and Municipality of Cherthala. All the accused were

active members of the very same political party.

6. In the evening, PW2 raised a query regarding the

coercive sale of coir mats in the Ward Council Meeting,

to which A6 reacted combatively. It was later, in the

night, that accused 1 to 4, as alleged by the prosecution,

in retaliation, along with A5 and A6 went to the house of

the deceased where accused 1 to 4 unleashed a frontal

attack on the inmates. A5, allegedly entered the house

only briefly, to kick the deceased and destroy the

window panes, while A6 stood outside exhorting the

Page 5 of 19 SLP(Crl.) No. 12926 of 2024 accused who entered the house to kill the inmates. The

attack unleashed resulted in the death of the deceased

and injuries to his son and daughter-in-law.

7. As found by the Division Bench of the High Court

the incident that happened in the afternoon is spoken of

by PW2 and 3, the family of the deceased & PW4, a

neighbour who had been examined to speak on both

the incidents; that which happened in the afternoon and

at night. PW4 turned hostile and failed to identify the

accused who participated in the incident at night,

however, she spoke of A6’s presence in the house of the

deceased in the afternoon, when a wordy altercation

ensued. She also spoke of the incident at night when an

attack was unleashed, but refused to identify the

accused, which she said was out of fear and not the

influence of the accused. PW5 another neighbour of the

deceased who participated in the Ward Council

Meeting held on 29.11.2009 also deposed that there

were arguments between PW2 and A6, in the meeting

when PW2 raised a question of compulsory sale of coir

mats, when A6 again asked PW2 to burn the coir mat, if

Page 6 of 19 SLP(Crl.) No. 12926 of 2024 he does not want it. There is sufficient corroboration by

PW13 an official of the Cherthala Municipality, who

attended the Ward Council Meeting held on 29.11.2009.

PW13 deposed that a youngster raised a query with

respect to sale of coir mats, which was answered by A6.

PW13 did not speak of any heated argument between

PW2 and A6. However, the fact remains that there is

sufficient corroboration for the incident which

happened in the afternoon and in the evening at the

Ward Council Meeting, which led to the attack on the

family members of the deceased. The motive alleged,

hence stands established.

8. According to the evidence of PW1 to 3, at around 7

P.M., accused 2 to 4 called out the name of PW2 from

outside his house. PW2 called them inside, when

accused 1 to 4 attacked him with wooden logs. PW1,

PW2's wife, who came to his rescue was also assaulted.

PW3 intervened, when the child of PW1 and PW2 was

attempted to be harmed, and took the child away from

A3 who caught hold of the child. The deceased who was

in the adjoining room came out, hearing the commotion

Page 7 of 19 SLP(Crl.) No. 12926 of 2024 and was beaten by A1 on his head using a wooden log,

which blow fell on the back of his head on the right

side. A1 again delivered two blows on the head of the

deceased with MO1 wooden log. Later, A2 also

delivered blows on the deceased with MO3 wooden log.

PW1 spoke of having seen A6 standing outside the

house and deposed that he exhorted the accused who

entered the house, to ‘kill them’, meaning the inmates of

the house.

9. The evidence of PW1 to 3 stands corroborated by

the evidence of PW4 who came to the house of the

deceased, hearing the hue and cry. She identified the

first accused in a yellow t-shirt and did not identify the

others. As we noticed earlier, though PW4 was declared

hostile, she spoke of the incident that happened in the

house of the deceased in the afternoon and also spoke

of having come to the house of the deceased after the

incident and her first-hand knowledge of the

destruction caused in the house of the deceased. PW6,

another neighbour of the accused also corroborated the

evidence of PW1 to 3 and identified A1 & A2 who were

Page 8 of 19 SLP(Crl.) No. 12926 of 2024 standing outside the house, when he came, as also

accused A3 and A4 who were smashing the windows of

the house. On entering the house, he saw the deceased

vomiting and there were indications of a paralytic attack

on his face. PW2, standing beside him also had blood

on his body. PW6 accompanied the victims to the

hospital.

10. That the death was a homicide is clear from the

evidence of PW10 who spoke in accordance with Ex.P5,

Post Mortem Certificate. The cause of death was by

reason of the head injury which is shown as injury No.1

in Ex.P5. The doctor deposed that the injury numbers 1

to 7 found on the deceased could be caused by MOI

and MOIII wooden logs and were ante-mortem. Injury

No.8, according to the expert could be caused by

stamping or by kicking. The accused was admitted to

Medical College, Kottayam on 29.11.2009 with a severe

head injury and succumbed on 8.12.2009, despite

craniotomy and haematoma evacuation having been

done on the patient. The death hence was homicidal

and it occurred due to the attack unleashed at the house

Page 9 of 19 SLP(Crl.) No. 12926 of 2024 of the deceased, by the accused. In addition, is the

evidence of PW12, the doctor who examined PW1 and

PW2, the injured, at the Taluk Hospital on 29.11.2009,

providing further support to the prosecution version.

The injuries found on the body of PW1 & PW2 were

consistent with the narration of the attack on them.

PW12 also had noted the cause of injury as ‘having been

beaten up by identifiable persons’.

11. We are not, in the instant appeal, concerned with the

charges proved against the other accused nor even the

acquittal of A5 since the above appeal is only filed by

A6. We adjourned the matter at the initial stage, after

querying the State as to whether they intend to file any

appeal. We were told by the Standing Counsel that he

does not have any instructions and hence we

proceeded with the matter; which we make clear is only

with respect to the conviction of the appellant under

Section 304 Part II read with Section 120B IPC and the

other provisions, as noticed above and we do not deal

with the alteration of sentence from Section 302 to 304B Page 10 of 19 SLP(Crl.) No. 12926 of 2024 Part II, since there is no appeal as of now from the State

or the injured victims.

12. The first contention of the appellant is the principle

of parity of acquittal of similarly placed co-accused. A5

had his house in the neighbourhood of the scene of

occurrence; in front of which the accused were found to

have held a meeting before the attack unleashed at the

house of the deceased. The High Court has found that

the presence of A5 was quite natural since he had his

house in the neighbourhood. Insofar as the acquittal of

A5, PW1 had not mentioned the name of fifth accused in

her statement recorded under Section 161, Cr. P.C. The

statement of PW1 and PW3 that they saw the fifth

accused kicking the deceased and he was also present

among the assailants who unleashed the attack inside

the house were put to them as an omission in their

statement recorded by the Police. However, with respect

to A6, the testimony of PW1 is that he stood outside the

house and exhorted the accused 1 to 4 who entered the

house to ‘kill them’. The First Information Statement of

PW1 as noticed by the High Court, is of Kannan having

Page 11 of 19 SLP(Crl.) No. 12926 of 2024 exhorted to kill PW2 which was alleged to have been

changed in the witness box and the said exhortation

attributed to A6.

13. While the Division Bench held that the evidence of

PW1 regarding the presence of A5 and A6 cannot be

believed, the Division Bench believed the testimony of

PW1 with respect to A1 to A4. The presence of A6

spoken of by PW1 was disbelieved by the High Court,

since even in the FIR she had not stated so. However,

this has to be considered along with the biased

investigation, highlighted by the High Court itself. A6

was an influential political leader of the ruling party

and his name was purposefully not included in the

array of accused. We will deal with this more

elaborately a little later. Be that as it may, the earlier

incidents that happened in the afternoon and the

evening which led to the attack at night stood

established. The presence of A6 in the vicinity of the

crime scene, prior to the crime, in the company of the

other accused, also stood established. The High Court

rightly relied on State of Karnataka v. K. Yarappa

Page 12 of 19 SLP(Crl.) No. 12926 of 2024 Reddy 3 , to find that even when the probity of

investigation is suspect, the rest of the evidence must

be scrutinised meticulously to ensure that criminal

justice is not rendered a causality.

14. The evidence of PW7 who saw A1 to A6 standing in

front of the house of A5 just before the incident

happened, is the physical manifestation of the

conspiracy. The motive and presence of A6 at the scene

of crime, is thus established. The motive arises from the

incident which happened in the afternoon, where

ensued a wordy altercation by A6 with the deceased;

which was followed up by another, in the Ward Council

Meeting, on the evening of the same day, with PW2. We

cannot find the evidence against A5 and A6 to be

identical and the culpability of A6 to be roped in under

Section 120B is quite evident; his presence at the scene

of occurrence established by the ocular testimony,

which unlike A5, who had his house in the vicinity, could

not be explained by A6; clinching his culpability.

3 (1999) 8 SCC 715 Page 13 of 19 SLP(Crl.) No. 12926 of 2024

15. In this context we have to necessarily consider the

contention of the appellant that he was added later,

which raised a reasonable doubt as to his involvement

in the incident that occurred at night. Here we have to

notice that there was a conscious attempt to divert the

investigation and frustrate the prosecution, especially

against A6 who is attested to be an influential political

leader, by none other than one of the Investigating

Officers (I.O.), PW18. PW17 was the officer who

commenced the investigation, prepared Ex.P3 scene

mahazar and seized MOI and MOIII weapons along with

the other articles as also arrested the accused 1 to 4 on

30.11.2009. PW18 took over the investigation from

PW17 who deposed that a particular political party was

in power in the State as also the Municipality, at the time

of occurrence and the sixth accused was an influential

political leader and the Chairman of the Standing

Committee of the Municipality. PW18 took additional

statements of PW’s 1 to 3 in which also there was no

disclosure of presence of A6 at the crime scene. Later,

the investigation was taken over by PW19 on 19.12.2009

Page 14 of 19 SLP(Crl.) No. 12926 of 2024 who, at the request of PW’s 1 to 3 made an application

before the Chief Judicial Magistrate, Alappuzha to

record the statements of PW’s 1 to 3 under Section 164

of Cr.P.C. This was specifically on the complaint raised

by PW’s 1 to 3 that their statements were not recorded

properly and there was a conscious attempt to somehow

exonerate A6. The statements of PW’s 1 to 3 were

recorded under Section 164 of Cr.P.C. and PW20, the

Judicial Magistrate, who recorded the statement

deposed that PW1 disclosed to PW20 that the Police

had not truthfully recorded her statement. The

inconsistencies in the FIR, based on the first information

of PW1 and the statements recorded by PW17 and

PW18 are hence inconsequential. This also has to be

viewed in the context of PW21, who eventually filed the

charge sheet, having failed to include PW19, I.O. who

initiated steps to record Section 164 statements of PW1

to 3, as a witness. It was at the instance of the Court,

PW19 was examined in the trial.

16. One other contention taken up is regarding PW7

who is said to be a member of a rival political party. It

Page 15 of 19 SLP(Crl.) No. 12926 of 2024 has to be observed that PW7 accepted that he was a

member of that political party and that there was a case

registered against him at the instance of A6, which was

settled between them. The correctness of these

statements, according to the High Court, was never

challenged in cross-examination but for a bland

suggestion that there are a number of cases between

them. There is no substantiation of the same by the

accused. PW7, who admitted his alliance to the rival

political party and the case with A6, who was residing

near the crime scene, was a truthful witness, as found

by the High Court.

17. There is also a contention raised that DW1's

evidence was not reckoned by the Trial Court and the

High Court. DW1 is a person who is said to have

attended the Ward Council Meeting in the evening of

29.11.2009. He specifically deposed that there was no

argument between A6 and PW2 in the Ward Council

Meeting. We have already found that a wordy duel

ensued between A6 and PW2 in the Meeting, spoken of

by PW2, corroborated by PW5, a neighbour and also by

Page 16 of 19 SLP(Crl.) No. 12926 of 2024 PW13, an official of the Cherthala Municipality. Later,

DW1, in his deposition also tries to wriggle out of the

situation with a statement that he was not listening and

hence he cannot surely say as to what happened in the

Meeting; a thoroughly unreliable witness.

18. As has been held in State of Tamil Nadu v. Nalini4,

by the very nature of the offence of conspiracy, being

hatched in secrecy, no evidence of the common

intention of the conspirators can be normally produced

before Court. The offence can be proved largely by

inferences from the acts committed or words spoken by

the conspirators in pursuance of a common intention.

That an altercation occurred between A6 and the

deceased in the afternoon and another wordy duel in

public, on the same evening, with PW2, the son of the

deceased has been established by the prosecution. The

reaction of A6 in the afternoon, to the refusal of the

deceased to purchase a coir mat and in the evening,

when the question of compulsory sale of coir mats was

raised by PW2, was abrasive and violent. On the same

4 (1999) 5 SCC 253 Page 17 of 19 SLP(Crl.) No. 12926 of 2024 day evening, A6 was found with the other accused near

the house of the deceased, a few minutes before the

crime occurred in the house of the deceased. The

accused had called out PW2 from the outside the house

when PW2, unsuspectingly invited them inside. The

accused belonged to a political party, whose leader was

A6. Accused 1 to 4 entered the house and unleashed a

frontal attack on the family members with wooden logs.

Construction work was going on in the house of the

deceased and there were wooden logs lying in the

premises. Even if it is found that the accused did not

come with deadly weapons, before entering the house

they picked up the wooden logs, within the eye-sight of

A6. They entered the house of PW2 on his invitation and

unleashed an attack without any provocation from the

inmates of the house. Obviously, in retaliation of the

incidents that happened earlier, on the same day A6

had seen the accused picking up the wooden logs and

entering the house and alsso had exhorted them from

outside the house. A6 definitely had the knowledge that

the attack perpetrated on the accused could lead to

Page 18 of 19 SLP(Crl.) No. 12926 of 2024 death and the attack was carried out under his watch-

full eyes. As rightly held by the High Court, though the

heightened intention to cause death cannot be

attributed in the incident, the knowledge that the attack,

as established in the trial, is likely to cause death can

definitely be pinned down on A6, at whose instance and

connivance as also active instigation, the attack was

carried out.

19. We find absolutely no reason to interfere with the

conviction and sentence of A6 and dismiss the Special

Leave Petition.

20. Pending applications, if any, shall stand disposed of.

………….……………………. J.

(SUDHANSHU DHULIA)

………….……………………. J.

(K. VINOD CHANDRAN)

NEW DELHI;

APRIL 16, 2025.

Page 19 of 19 SLP(Crl.) No. 12926 of 2024