MANI versus STATE OF KERALA AND OTHERS

[2019] 5 S.C.R. 1131

MANI

STATE OF KERALA AND OTHERS

(Criminal Appeal No.540 of 2019)

APRIL 01, 2019

[DR. DHANANJAYA Y. CHANDRACHUD ANDHEMANT GUPTA, JJ.]

Penal Code, 1860:

s. 300, Exception 4, s. 304 (Part I) – Prosecution of sevenaccused – For causing death of one person and causing injuries toeight persons – Trial Court relying on the testimony of injured eye-witnesses convicted accused Nos. 1 to 4 u/ss. 302, 341 and 324 r/ws. 34 IPC – Three of the accused were acquitted – High Court upheldconviction of accused No. 1 (appellant) u/s. 302, and conviction ofaccused Nos. 2 to 4 u/ss. 324 and 341 r/w s. 34 – Appeal to SupremeCourt by accused No. 1 challenging his conviction u/s. 302 andappeal by State challenging the acquittal of accused Nos. 2 to 4u/s. 302 – Held: There was no common intention in causing death –Genesis of the dispute was not proved – Statement of witnesses inrespect of injuries caused is not consistent – Plea of private defenceis also not made out – However, all the accused have consistentlydeposed that the death was caused by appellant/accused – It was acase of sudden fight without premeditation – Therefore, it is culpablehomicide not amounting to murder falling within Exception 4 ofs. 300 – Thus, an offence punishable u/s. 304 (Part I) is made out –Sentence altered to the period already undergone i.e. more thanseven years.

Partly allowing appeal of the accused and dismissing theappeal of the State, the Court

HELD: 1.There is no error in the order passed by theHigh Court that there was no common intention in causing death.The prosecution has not produced any evidence showing thatthe accused were present at the place of occurrence or that theywere part of the group creating trouble at that place. Genesis to

Athe dispute has not been proved by the prosecution. Thestatement of the witnesses in respect of injuries caused is notconsistent. However, all the injured witnesses have consistentlydeposed the death of deceased by the appellant.[Paras 11 and 18][1139-A-C; 1136-E]

B2. The plea that the appellant acted in his private defenceis not made out. The injury received by the appellant is notserious, therefore, he could not have attacked the deceased onchest which is vital part, as such injury is likely to cause death.The appellant is not entitled to right of private defence whichdoes not extend to inflict more harm than it is necessary inCexercise of right of private defence. [Para 20][1139-D-E]

3. The accused had no knowledge or information that thevictims were moving towards the place of incident. Theprosecution witnesses have deposed that the accused or theDvictims did not have any personal enmity except politicaldifferences. The appellant was suddenly confronted with thevictims and in the fight ensued in which the injuries came to beinflicted upon the deceased and other victims. In view of suddenfight without any premeditation, the conviction of the appellantfor an offence under Section 302 is not made out. The cause ofEdeath of the deceased is knife blow on the chest of the deceased.Such injury is with the knowledge that such injury is likely tocause death, but without any intention to cause death. Thus, thedeath is culpable homicide not amounting to murder as the deathhas occurred in heat of passion upon sudden quarrel fallingFwithin Exception 4 of Section 300 of IPC. Therefore, it is an offencepunishable under Section 304 Part I, IPC.[Paras 21 and 22][1139-F-H; 1140-A-B]

4. The appellant has undergone more than seven years ofactual imprisonment. Therefore, keeping in view the backgroundGand the circumstances in which the occurrence happened, thesentence imposed on the appellant is warranted to be modifiedto as already undergone while maintaining fine of Rs. 20,000/.[Para 23][1140-B-C]

Dharam Pal and Others v. State of Haryana AIR 1978SC 1492 ; Nand Kishore v. State of Madhya PradeshAIR 2011 SC 2775 : [2011] 7 SCR 1152 – referred to.

Case Law Reference

AIR 1978 SC 1492 referred toPara 15[2011] 7 SCR 1152 referred toPara 15

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 540 of 2019

From the Judgment and Order dated 02.02.2016 of the High Courtof Kerala at Ernakulam in Criminal Appeal No. 2144/2011

With

Criminal Appeal No. 541 of 2019.

Basant R., K. N. Balgopal, Sr. Advs., Raghenth Basant, SenthilJagadeesan, G. Prakash, Jishnu M.L., Ms. Priyanka Prakash, Ms. BeenaPrakash, Nishe Rajen Shonker, Ms. Anu K. Joy, A. P. Mukundan,Ms. Vitra Ria, Alim Anvar, Ms. Nitya Nambiar, Renjith B. Marar,Ms. Lakshmi N. Kaimal, A. Karthik, Badusha Sulaiman, Ms. NamitaWali, Raghav Mehrotra, Ms. Liz Mathew, Advs. for the appearing parties.

The Judgment of the Court was delivered by

HEMANT GUPTA, J. 1. The challenge in the present appealsis to judgment dated 02.02.2016 maintaining conviction of the appellant-Mani for an offence under Section 302 IPC, whereas, conviction of theother accused i.e. accused No.2-Rathnakumar, 3-Praveen and 4-Selvarajwas maintained for offences under Sections 324 and 341 read with 34IPC while acquitting the said accused for an offence under Section302 IPC.

2. Criminal Appeal No. 540 of 2019 is against the conviction ofaccused No. 1 for an offence under Section 302 IPC, whereas, CriminalAppeal No. 541 of 2019 is against the acquittal of accusedNo.2-Rathnakumar, 3-Praveen and 4-Selvaraj (Respondent Nos. 2-4)under Section 302 read with 34 IPC. The parties herein shall be referredto as before the Trial Court.

A3. PW2-Vishwanathan son of Kunchu lodged First InformationReport at about 11.00 PM on 28.09.2005 in respect of an incident whichoccurred same day at about 8.10 PM on slope near Rosy School,Chozhiyamkod. The statement is that the Accused 1 to 4 who are BJPsympathisers, in connivance and conspiracy with each other with theintention and preparation to kill the complainant and others who are CPMBsympathisers, due to political enmity, collected dangerous weapons ofknife, Vadival sword and iron rod, came in motorcycles in front of RosySchool, Chozhiyamkod. They illegally stopped the complainant and hisfriends. The accused No.1-Mani stabbed Soman, whereas, accusedNo.2-Rathnakumar attacked complainant with Vadival sword on his faceCand accused No.3- Praveen gave beatings to Ashraf PW3 with iron rod.4. Shri V. Pazhanimala, A.S.I., Vadakkancheri Police Stationrecorded such statement and took over investigations. He recorded thestatement of Vishwanathan-PW2 under Section 161 Criminal ProcedureCode[1]. In his police statement, he stated that at about 8.00 PM onD28.09.2005 he along with (2) Kabir son of Muhammed, (3) Ashraf sonof Sheri, (4) Soman son of Appunni, (5) Rajesh son of Karuman, (6) AnilKumar son of Velayudhan, (7) Sajeesh and (8) Sanoj sons of KumaranVadukathodiyil were standing near the Mangalam old post office. Theywere talking about success of the party in the elections. They receivedinformation that BJP people are creating troubles at Chozhiyamkod. EightEof them moved towards the Chozhiyamkod. When they reached theslope of the road in front of Rosy School, they saw two motorcyclescoming from opposite side. Both the motorcycles stopped. Under thelight of torch, they found that the four accused were armed with Vadivalswords, knives and iron rod and came running towards them. AccusedF1-Mani shouted that who is CPM worker, cut and kill him and he stabbedSoman on his chest with knife. He went to stop him, then accused No.2-Rathnakumar hit him with Vadival sword but he withdrew his headand sword landed on his right cheek. The second attack landed on hisnose. He saw accused No. 3-Praveen coming to Ashraf PW3 with along thing in his hand. He stated that all eight of them were injured. OnGalarm being raised Manikandan son of Madhavan, VadakketharaPuzhakkal Parambu and Siju sons of Chamunni, Vadukathodi camerunning but the assailants ran away. Injured were taken to Hospital inthe ambulance. Doctor reported that Soman had been brought dead,

H1Code

whereas, he and Rajesh had received grievous injuries. On completionof investigation, seven persons were made to stand trial including threeVinod, Mohanan and Selvaraj charged with offence under Section 212read with 34 IPC. These three were later acquitted of the charges bythe learned Trial Court itself.

5. The learned Trial Court convicted accused Nos. 1 to 4 toundergo imprisonment for life and also sentenced to undergo simpleimprisonment for one month for an offence under Section 341 read with34 IPC and also rigorous imprisonment for period of six months underSection 324 read with 34 IPC by its judgment dated 24.11.2011.

6. The entire prosecution case is based upon injured witnessesexamined as PW2-Vishwanathan, PW3-Ashraf Ali, PW10-Rajesh andPW13-Anil Kumar. The argument of learned senior counsel for theappellant-Mani is that the appellant has received injury in the occurrenceon 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 aboutthirty other persons. The injury is lacerated wound 5 cms on foreheadwith fresh bleeding and contusion. It is thus contended that the appellanthad acted in right of private defence, therefore, conviction of the appellantfor an offence under Section 302 cannot be sustained.

7. It is argued that as per the prosecution case itself, the victimswere eight in number who were proceeding towards Chozhiyamkod sideon being informed that there is disturbance at Chozhiyamkod as sari ofone of the BJP workers caught fire in the crackers bursted whilecelebrating victory of CPM in Panchayat elections. However, it is arguedthat there is no evidence on the part of the prosecution that there wasany skirmish at Chozhiyamkod. No witness from the above said localityhas been examined. The alleged eight victims were on their way toChozhiyamkod as per their statements. It is argued that the accusedwere riding motorcycles unmindful of the fact that the victims’ group isproceeding towards Chozhiyamkod. Since, the victims were in largenumber and suddenly confronted accused, therefore, the appellant hasonly tried to save himself.

8. It is argued in the alternative that even if benefit of right ofprivate defence is not given to the appellant, it was case of sudden

Afight without any premeditation and therefore, conviction of the appellantfor the offence under Section 302 cannot be sustained. It is case forconviction for offence under Section 304 Part II.

9. On the other hand, learned senior counsel for the State arguedthat all the injured witnesses are consistent that it is on the exhortation ofBthe appellant- Mani, they have attacked the victims. The learned seniorcounsel for the State also submitted that the accused Nos. 2 to 4, werepart of the assailants who attacked the victims with weapons like Vadivalsword, knife and iron rod. It is case of common intention as all theaccused were coming on two motorcycles together, inflicted injuries andthen ran away together. The common intention is required to be inferredCon the basis of circumstances which clearly proves that the accused hadthe intention of murderous assault on the victims.

10. It is argued that the common intention may arise at the spur ofthe moment; therefore, it is not necessary that when the accused reachednear the Rosy School, they may not have common intention but whenDthey saw the victims, they decided to assault the victims and such attackis by framing common intention.

11. We find that the statement of the witnesses in respect of injuriescaused is not consistent. Though all the witnesses have consistentlydeposed that Mani has stabbed Soman deceased and he exhorted otherEto attack. The statement to the Police by PW2-Vishwanathan is thatthey received the information that the accused are creating trouble atChozhiyamkod side. While appearing as PW2, Vishwanathan deposedthat two-three persons came and told that BJP sympathisers are creatingtrouble. In the cross-examination, PW2 admitted that incident of “sariFburning” is hearsay. PW3-Ashraf Ali deposed that when they werestanding near the slope of Rosy School, two-three persons fromChozhiyamkod came and told that the flag of BJP is missing and BJPpeople are creating trouble. They were walking to the said spot to ascertainas to what the problem was, when they saw two bikes coming from thewest direction. But no person has been examined in respect of troubleGbeing created by any person at Chozhiyamkod either on account of burningof sari or of missing of BJP flag.

12. In the First Information Report, PW 3-Asraf is said to beassaulted with iron rod by Accused 3–Praveen; whereas the Accused

2-Rathnakumar is said to have attacked complainant with Vadival sword.But in evidence, PW3-Ashraf Ali deposed that Accused 2-Rathnakumarhit him on his nose, left hand and left shoulder, whereas, accused4-Selvaraj is said to have hit him with cricket stump.

13. Accused 2-Rathnakumar is said to have inflicted injury onPW2-Vishwanathan but Rathnakumar (A2) is said to have caused injuryto PW3-Ashraf Ali. In the First Information Report, there is no allegationthat accused 4-Selvaraj had cricket stump in his hand.

14. PW10-Rajesh deposed in the same manner as made by othertwo witnesses except that he deposed that accused No. 1-Mani, accusedNo. 3-Praveen and accused No.2-Rathnakumar had knives in their handsand Selvaraj had cricket stump in his hand. Accused 3-Praveen is saidto have stabbed him using knife in his hand, on left hand and index fingerand chest also and when he turned, he stabbed on the back and on theleft shoulder as well. He did not know whether BJP people knew thatthe victims were standing at the place of occurrence.15. PW13-Anil Kumar deposed that accused 2-Rathnakumar hadknife in his hand and caused injury on his left forehead. Accused4-Selvaraj gave him beatings with cricket stump. On the basis of suchevidence and Post-Mortem Certificate Ex. P-1 proved by PW8-Dr.P.C. Ignatius, the High Court held that there is no reason to convictaccused Nos. 2-4 with the aid of Section 34 IPC except that there wascommotion in which victims were injured. The High Court placed relianceupon Supreme Court judgments reported as Dharam Pal and Othersv. State of Haryana[2] and Nand Kishore v. State of Madhya Pradesh[3].

16. While appreciating the evidence of the four injured witnesses,the High Court returned findings that such witnesses have already beendecided to go to Chozhiyamkod side, hearing about the trouble createdby the BJP sympathisers, but the said fact will not mean that the accusedcarried common intention to do away with the members of the othergroup. The High Court recorded the following findings:

“54. It is extremely difficult to accept the finding of the courtbelow. Relying on the principles laid down in the various decisionsreferred to above and applying the test laid down therein, it isdifficult to come to the conclusion that the fatal stab injury was

2AIR 1978 SC 1492

3AIR 2011 SC 2775

inflicted as in furtherance of the common intention shared by theaccused persons.

55. First of all, the accused persons had no notice that the victimswould come to Chozhiyamkod to find out what the commotioncreated by the BJP sympathisers about and much less they hadany knowledge about Soman coming in that group. It may be truethat the two groups were at loggerheads. But that is far fromsaying that one of the groups always carries common intentionto do away with the members of the other group.

56. Even going by the prosecution sequence of events, the stabinflicted on Soman was spontaneous and sudden act committedby the first accused and there seems no materials to come to theconclusion that the said act committed by the first accused was infurtherance of the common intention shared by the other accusedpersons. Probably, from the evidence, it would appear that theother accused persons namely, accused Nos. 2, 3 and 4 did notanticipate such an act from the first accused and they were takenaback by the said act of the first accused. It would appear thatthe accused persons who had far outnumbered by the victims’group might have apprehended assault from them and that isprobably the reason why PWs 2, 3, 10 and 13 would say that soonthe members of the assailants group began brandishing the knivesto keep the victims at bay. This Court is not omitting to note thefact that the injuries were inflicted on PWs 2, 3, 10 and 13.

59. It is extremely difficult to accept the finding of the courtbelow that the act committed by the first accused of inflicting afatal stab on Soman was in furtherance of the common intentionof accused Nos. 1 to 4 for reasons already stated. The convictionof accused Nos. 2 to 4 by taking aid of Section 34 of IPC in thefacts and circumstances of the case seems to be misplacedone.”

17. The High Court also found that the infliction of injuries on theinjured witnesses cannot be said to be in furtherance of common intention,as it cannot be said that initial injury by the appellant-Mani is aconsequence of the common intention shared by the accused. The High

Court found that though the witnesses have been injured but the injuriesare not serious.

18. We do not find any error in the order passed by the HighCourt that there was no common intention in causing death of Soman.The prosecution has not produced any evidence showing that the accusedwere present at the place of occurrence at Chozhiyamkod or that theywere part of the group creating trouble at that place. There is no evidencethat any incident occurred at that place either of burning of sari due tofire crackers or of missing of flag. Therefore, genesis to the dispute hasnot been proved by the prosecution.

19. The victims were eight in number and in jubilant mood tocelebrate the victory of their party in the panchayat elections. Theydecided to go towards Chozhiyamkod side. The accused suddenly camefrom the opposite direction on two motorcycles. One of the accusedreceived injuries as well which fact is admitted by one of the witnessesPW2-Vishwanathan also.

20. Be that as it may, the fact remains that all the injured witnesseshave consistently deposed the death of Soman by the appellant. Theinjury received by the appellant is not serious, therefore, he could nothave attacked the deceased on chest which is vital part, as such injury islikely to cause death. Therefore, the appellant is not entitled to right ofprivate defence which does not extend to inflict more harm than it isnecessary in exercise of right of private defence. Therefore, the pleathat the appellant acted in his private defence is not made out.

21. However, the appellant-Mani came from west direction at theplace of occurrence riding on motorcycle. The accused had noknowledge or information that the victims are moving towardsChozhiyamkod. The prosecution witnesses have deposed that theaccused or the victims did not have any personal enmity except politicaldifferences. The appellant was suddenly confronted with the victimsand in the fight ensued in which the injuries came to be inflicted upon thedeceased and other victims.

22. In view of sudden fight without any premeditation, theconviction of the appellant for an offence under Section 302 is not madeout. The cause of death of the deceased is knife blow on the chest of thedeceased-Soman. Such injury is with the knowledge that such injury is

Alikely to cause death, but without any intention to cause death. Thus, thedeath of Soman is culpable homicide not amounting to murder as thedeath has occurred in heat of passion upon sudden quarrel falling withinException 4 of Section 300 of IPC. Therefore, it is an offence punishableunder Section 304 Part I, IPC.

B23. It is pointed out that the appellant has undergone more thanseven years of actual imprisonment. Therefore, keeping in view thebackground and the circumstances in which the occurrence happened,we find that the sentence imposed on the appellant is warranted to bemodified to as already undergone while maintaining fine of Rs. 20,000/.

C24. In view of the above discussion, Criminal Appeal No. 540 of2019 filed by the appellant-Mani is partly allowed and Criminal AppealNo. 541 of 2019 filed by the State of Kerala is dismissed.

Kalpana K. Tripathy

Appeals disposed of.