Somon Vs. State of
Kerala  INSC 1838 (24 October 2008)
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 ...
C.K. THAKKER, J.
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.
appreciate the points raised by the appellant herein, few relevant facts may be
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
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.
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.
is against the said order of conviction recorded by the High Court that the
appellant has approached this Court.
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.
have heard the learned counsel for the parties.
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
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.
counsel for the State, on the other hand, supported the order of conviction and
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.
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.
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.
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.
contains following injuries:
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
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.
was stated that combined effect of injury Nos. 1, 3, 4 and 5 was sufficient in
the ordinary course of nature to cause death.
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 the deceased, the case is covered by Section 304
Part I, IPC.
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
conviction of the accused from Section 302 to Section 304 Part I, this Court
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".
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".
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.
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.
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.
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.
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.
(D. K. JAIN)
Pages: 1 2