Somon vs State Of Kerala

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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 3

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 4

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 6

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 7

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 8

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: 9

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.

1 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 1

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 1

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 1

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) 1

.........................................................J. (D. K. JAIN) New Delhi.

October 24, 2008.