MANIversusSTATE OF KERALA AND OTHERS

                        [2019] 5 S.C.R. 1131                             1131


                               MANI                                      A
                                  v.
               STATE OF KERALA AND OTHERS
                 (Criminal Appeal No.540 of 2019)
                          APRIL 01, 2019                                 B
        [DR. DHANANJAYA Y. CHANDRACHUD AND
                 HEMANT GUPTA, JJ.]
      Penal Code, 1860:
       s. 300, Exception 4, s. 304 (Part I) – Prosecution of seven       C
accused – For causing death of one person and causing injuries to
eight persons – Trial Court relying on the testimony of injured eye-
witnesses convicted accused Nos. 1 to 4 u/ss. 302, 341 and 324 r/w
s. 34 IPC – Three of the accused were acquitted – High Court upheld
conviction of accused No. 1 (appellant) u/s. 302, and conviction of
                                                                         D
accused Nos. 2 to 4 u/ss. 324 and 341 r/w s. 34 – Appeal to Supreme
Court by accused No. 1 challenging his conviction u/s. 302 and
appeal by State challenging the acquittal of accused Nos. 2 to 4
u/s. 302 – Held: There was no common intention in causing death –
Genesis of the dispute was not proved – Statement of witnesses in
respect of injuries caused is not consistent – Plea of private defence   E
is also not made out – However, all the accused have consistently
deposed that the death was caused by appellant/accused – It was a
case of sudden fight without premeditation – Therefore, it is culpable
homicide not amounting to murder falling within Exception 4 of
s. 300 – Thus, an offence punishable u/s. 304 (Part I) is made out –
                                                                         F
Sentence altered to the period already undergone i.e. more than
seven years.
     Partly allowing appeal of the accused and dismissing the
appeal of the State, the Court
      HELD: 1. There is no error in the order passed by the              G
High Court that there was no common intention in causing death.
The prosecution has not produced any evidence showing that
the accused were present at the place of occurrence or that they
were part of the group creating trouble at that place. Genesis to

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                                1131
1132            SUPREME COURT REPORTS                      [2019] 5 S.C.R.


 A     the dispute has not been proved by the prosecution. The
       statement of the witnesses in respect of injuries caused is not
       consistent. However, all the injured witnesses have consistently
       deposed the death of deceased by the appellant.
       [Paras 11 and 18][1139-A-C; 1136-E]
 B           2. The plea that the appellant acted in his private defence
       is not made out. 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.
       The appellant is not entitled to right of private defence which
       does not extend to inflict more harm than it is necessary in
 C
       exercise of right of private defence. [Para 20][1139-D-E]
              3. The accused had no knowledge or information that the
       victims were moving towards the place of incident. The
       prosecution witnesses have deposed that the accused or the
 D     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. 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
 E     death of the deceased is knife blow on the chest of the deceased.
       Such injury is with the knowledge that such injury is likely to
       cause death, but without any intention to cause death. Thus, the
       death is a culpable homicide not amounting to murder as the death
       has occurred in heat of passion upon a sudden quarrel falling
 F     within Exception 4 of Section 300 of IPC. Therefore, it is an offence
       punishable 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 of
       actual imprisonment. Therefore, keeping in view the background
 G     and the circumstances in which the occurrence happened, the
       sentence imposed on the appellant is warranted to be modified
       to as already undergone while maintaining fine of Rs. 20,000/.
       [Para 23][1140-B-C]


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          MANI v. STATE OF KERALA AND OTHERS                                 1133


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

                         Case Law Reference
      AIR 1978 SC 1492             referred to             Para 15           B

      [2011] 7 SCR 1152            referred to             Para 15


      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 540 of 2019                                                              C
      From the Judgment and Order dated 02.02.2016 of the High Court
of Kerala at Ernakulam in Criminal Appeal No. 2144/2011
                                  With
      Criminal Appeal No. 541 of 2019.                                       D
       Basant R., K. N. Balgopal, Sr. Advs., Raghenth Basant, Senthil
Jagadeesan, G. Prakash, Jishnu M.L., Ms. Priyanka Prakash, Ms. Beena
Prakash, 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. Namita              E
Wali, 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 appeals
is to a judgment dated 02.02.2016 maintaining conviction of the appellant-
Mani for an offence under Section 302 IPC, whereas, conviction of the        F
other accused i.e. accused No.2-Rathnakumar, 3-Praveen and 4-Selvaraj
was maintained 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       G
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.                                                H
1134              SUPREME COURT REPORTS                       [2019] 5 S.C.R.


 A            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
 B
       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
 C     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
       Code1. In his police statement, he stated that at about 8.00 PM on
 D     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
 E     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
 F     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
 G     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,

       1
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           MANI v. STATE OF KERALA AND OTHERS                                   1135
                    [HEMANT GUPTA, J.]

whereas, he and Rajesh had received grievous injuries. On completion            A
of investigation, seven persons were 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               B
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           C
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                    D
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     E
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
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         F
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            G
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

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1136             SUPREME COURT REPORTS                            [2019] 5 S.C.R.


 A     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
 B     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
 C     on the basis of circumstances which clearly proves that the accused had
       the intention of murderous assault on the victims.
               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
 D     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
 E     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
 F     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
 G     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

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            MANI v. STATE OF KERALA AND OTHERS                                 1137
                     [HEMANT GUPTA, J.]

2-Rathnakumar is said to have attacked complainant with Vadival sword.         A
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            B
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           C
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.
                                                                               D
       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          E
commotion in which victims were injured. The High Court placed reliance
upon Supreme Court judgments reported as Dharam Pal and 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         F
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     G
         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
2
    AIR 1978 SC 1492
3
    AIR 2011 SC 2775                                                           H
1138            SUPREME COURT REPORTS                          [2019] 5 S.C.R.


 A           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
 B           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
 C           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
             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
 D           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
 E           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
 F           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
 G           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
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          MANI v. STATE OF KERALA AND OTHERS                                    1139
                   [HEMANT GUPTA, J.]

Court found that though the witnesses have been injured but the injuries        A
are not serious.
       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            B
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            C
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.
                                                                                D
       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           E
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
knowledge or information that the victims are moving towards                    F
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.                                                     G
      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
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1140             SUPREME COURT REPORTS                         [2019] 5 S.C.R.


 A     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.
 B           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/.
 C           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.


       Kalpana K. Tripathy                                      Appeals disposed of.
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