Supreme Court of India
SOMONversusSTATE OF KERALA
- Citation
- 2008 INSC 1222
- Decided
- 24 October 2008
- Disposal
- Case Partly allowed
- Bench
- C K THAKKER
Holding
The appellant's conviction is converted from murder (Section 302 IPC) to culpable homicide not amounting to murder (Section 304 Part I IPC) and his sentence is reduced to the period already served.
Summary
Six armed men formed an unlawful assembly with the common object of killing Balan. They inflicted multiple injuries on his arms and legs, and he later died. The trial court convicted accused No.1 (the appellant) and others under Section 302 read with Section 34 IPC, along with other offences. The High Court acquitted accused Nos.2‑6 but upheld the appellant's conviction under Section 302. On appeal, the Supreme Court examined whether the nature of the injuries and the circumstances amounted to murder or to culpable homicide not amounting to murder under Section 304 Part I. Relying on medical evidence that the combined injuries, though not on vital parts, were sufficient to cause death, the Court held that the offence fell under Section 304 Part I. Consequently, the conviction was altered to Section 304 Part I and the sentence was reduced to the period already served, resulting in the appellant’s release. The appeal was partly allowed.
Issues considered
- The appropriate charge for the appellant: murder under Section 302 IPC or culpable homicide not amounting to murder under Section 304 Part I IPC.
- Whether the benefit of doubt extended to co‑accused should also apply to the appellant.
- Whether the sentence should be reduced to the time already undergone.
Legislation cited
- Code of Criminal Procedure, 1973s. 209
- Explosive Substances Act, 1908s. 3, s. 5
- Indian Penal Code, 1860s. 143, s. 147, s. 148, s. 149, s. 302, s. 304, s. 323, s. 34
Subjects
murderculpable homicide not amounting to murdercommon intentionunlawful assemblybenefit of doubtconviction alterationSection 302 IPCSection 304 IPCcriminal appealSupreme Court
Judgment
[2008] 15 S.C.R. 123
~-
SOM ON A
v.
STATE OF KERALA
(Criminal Appeal No. 1693 of 2008)
OCTOBER 24, 2008
B
[C.K. THAKKER AND D.K. JAIN, JJ.]
Penal Code, 1860 - ss. 302 and 304 (Part I) - Six armed
accused formed unlawful assembly with common object to kill
deceased - Riot committed and injuries caused to deceased c
resulting in his death - Previous enmity between parties -
.., Conviction of accused no. 1 u/s 302 rlw s. 34 and others ul
s. 147 and s. 148 respectively - High Court upheld conviction
of accused no. 1 uls. 302 but acquittal of others extending
them benefit of doubt - On appeal, held: None of the injuries D
'!<. were inflicted on the vital part of the body, though its
combined effect was sufficient in ordinary course of nature to
cause death - There is no infirmity as to finding of guilt of
accused no. 1 by courts below, thus, accused no. 1 not entitled
to benefit of doubt - On facts, case of accused covered u/s. E
304 (Part I) - Thus, conviction altered to one u/s. 304 (Part I)
and sentence reduced to the sentence already undergone.
. According to the prosecution case, accused persons
),- were on inimical terms with B. Accused no. 1-6 armed
with deadly weapons formed themselves into an unlawful F
assembly and committed riot with the common object to
kill B. They caused injuries to B and PW-2. B died later.
\· Prosecution examined the witnesses. On basis of the
evidence of injured witnesses, hostile witnesses and
independent witness, trial court held that B was killed in G
the incident which took place and accused nos. 1, 2, 4
.........
and 6 shared common intention to commit murder of B.
Trial court convicted and sentenced accused nos. 1, 2, 4
and 6 under s. 302 rlw s. 34 IPC. It also convicted accused
123 H
124 SUPREME COURT REPORTS [2008] 15 S.C.R.
•'f'
A nos. 1-4 under s. 147 and accused nos. 5-6 under 148 s.
IPC. High Court acquitted accused nos~ 2-6 of all the
·charges. However, it upheld the conviction of accused
no. 1 under s. 302. Hence the present appeal.
Partly allowing the appeal, the Court
B
HELD: 1.1. 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
c Court on evidence as to the guilt of the appellant. There
is no infirmity in the said finding. This Court was justified ..::.
by issuing notice as to the 'nature of offence'. Therefore,
the submission that the appellant is entitled to benefit of
doubt and be set at liberty by extending benefit which
D had been granted to other accused is rejected. [Paras 13 ,~
and 14] [128-F-H; 129-A] .
1.2. As far as the 'nature of offence' is concerned, the
submission of the counsel for the appellant is well-
founded. PW 8-Deputy Police Surgeon stated that
E
combined effect of injury Nos. 1, 3, 4 and 5 was sufficient
in the ordinary course of nature to cause death. Looking
to the injuries sustained by the deceased which were not
,. ,-
on head, face or vital part of the body, but on arms, legs ·71- ,_
etc. coupled with the fact that in all, there were six
F accused and though all of them were convicted by the
trial court, the High Court extended benefit of doubt to
t::
accused Nos. 2-6, the counsel is right in submitting that
on the facts and in the circumstances of the case, it
cannot be said that the appellant had committed an
G offence punishable under section 302 IPC. Even the trial
court did not convict the appellant substantively for an r-
offence punishable under section 302 IPC. He was
convicted with other accused for an offence punishable
under section 302 read with section 34, IPC. On the facts
H of the case and injuries sustained by the deceased, the
SOMON v. STATE OF KERALA 125
.+'
case is covered by section 304 Part I IPC. In view of the A
above fact's, the ends of justice would be met if the
conviction of tti'e appellant is conve·rted from an offence
punishable under Secti<ifi 302, IPC to ari offence
punishable under Section 304 Part I, IPC. (Paras 15, 17,
18 arid 23j (1'29-A-B; 130:.B-E; 131-F] B
·y- Kapur Singh v. State of Pepsu, AIR (1956) SC 654,
referred to.
2. From the record it appears that initially the
appellant had remained in jail for more than a month. After c
his conviction, again he was taken to custody on January
16, 2003 and is in jail all throughout. Thus, the appellant
is ih jail since more than five years. On the facts and in
the circumstances of the case, that interest of justice
l would be met if the sentence of the appellant is reduced D
to the sentence already undergone. [Para 24 and 25] [131-
G-H; 132-AJ
Case Law Reference :
AIR (1956) SC 654 referred to Para 19 E
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1693 of 2008.
From the final Judgment and Order dated 19.1.2004 of the
High Court of Kerala at Ernakulain in Criminal Appeal No. 131/ F
2002-B.
C.N. Sree Kumar, Kanchan Shukla, P.R. Nayak and
Dushyant Parashar for the Appellant.
P.V. Dinesh for the Respondent. G
~-- ~ ~
The Judgment of the Court was delivered by
C.K. THAKi<ER, J. 1. Leave granted. \
2. The present appeal is filed against the judgment and H
126 SUPREME COURT REPORTS [2008] 15 S.C.R.
-~
A 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
J~huary 19, 2004 in Criminal Appeal No. ·131 of 2002:
3. To appreciate the points raised by the appellant herein,
8
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 a".count of previous enmity
c 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
D Uthaman. Balan was taken to Medical College Hospital, J
:.'
Kottayam on the same day at about 5.30 p.m. where he was
I.,._
declared dead. All the accused were, therefore, charged for
commission of offences punishable under Sections 143, 148, l. ~
323 and 302 read with Section 149, Indian Penal Code, 1860
E (IPC). They were also charged under Sections 3 and 5 of the
Explosive Substances Act, 1908. The Judicial Magistrate, t=:
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. ,.. \.
F
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
G also referring to the evidence of ('hostile') witnesses coupled
with the evidence of PW 3 Rahmathulla Rawther, Forest Guard, 7'
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
H evidence on record held that it was proved that accused Nos.
SOMON v. STATE OF KERALA [C.K. THAKKER, J.] 127
...._,,
1, 2, 4 and 6 shared common intention to commit murder of A
deceased Balan and hence they were liable to be convicted
for an offence punishable under 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. B
Accordingly, punishments were imposed. on them.
-fl"
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
c
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
.. .l.
herein) is concerned, it held that conviction recorded by the trial
Court against him for an offence punishable under Section 302, D
IPC was well-founded and was accordingly confirmed.
7. It is against the said order of conviction recorded by the
High Court that the appellant has approached this Court.
E
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.
·" F
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 G
accused Nos. 2-6 disbelieving the evidence of prosecution
-Y
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 H
128 SUPREME COURT REPORTS [2008] 15 S.C.R.
-+
A 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
B 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
c 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,
st;ipported the order of conviction and sentence.
·~
D 12. Having heard the learned counsel for the parties and .J.
having gone through the 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
E
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 1-
caused injuries to deceased Balan. There is no infirmity in the
F
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
G the! trial Court and co~firmed 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 is~uing notice in December, 2007 as to the .
'nature of offence'. We, t~erefore, reject the contention of the
learned counsel for the appellant that the appellant is entitled
H to benefit of doubt and be set at liberty by extending benefit·
SOMON v. STATE OF KERALA [C.K. THAKKER, J.] 129
~-
which had been granted to other accused. A
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, 8
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
c
certificate (Ex. P-9) and identified his signature.
16. Ex.P-9 contains following injuries:
1. Incised gaping wound 7x4 cm over the back and D
.\... 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.
E
2. Skin deep incised wound 5x5 cm over the front of
right leg 19 crn below the knee.
-~·
3. Incised gaping wound 4x2 cm oblique over the front
and outer aspect of left forearm 8.5 cm below the F
elbow with a maximum depth of 3.8 cm in the
middle.
4. Incised gaping wound 1Ox3 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
G
tapering towards the ends. The wound cut, muscles
nerves, blood vessels and tibia completely.
5. Incised gaping wound 1Ox5.5 cm oblique over the
outer aspect of left leg 10 cm below the knee with H
130 SUPREME COURT REPORTS [2008] 15 S.C.R.
--+.
A 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 mid line and 10.5
cm below the top line of shoulder.
B
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.
c 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.
D ?-6, in our opinion, the counsel is right in submitting that on
,J,
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
E
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.
19. We are fortified in our view by a decision of this Court -.;
F 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
G deceased on the arms and legs with gandasa.
j-
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
H thus inflicted none was inflicted on a vital part of the body.
SOMON v. STATE OF KERALA [C.K. THAKKER, J.] 131
"" The appellant absconded and his companion was in the
meantime convicted of an offence under Section 302 and
A
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 Sessions Judge awarded B
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;
c
"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 D
,i_
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
E
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.
F
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· an offence punishable under Section 302, IPC to an
offence punishable under Section 304 Part I, IPC.
G
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.
H
132 SUPREME COURT REPOR1S [2008] 1.S· S.C.R.
A 29~ On the facts and in the circumstances of the case, we
a,re of the view that interests of justice would be met if we
reduc~ the sentence of the appellant to the sentence already
undergone .
. ?,6. The ~ppeal is accordingly allowed to the above extent
8
and the appellant herein is ordered to be set at liberty if not
required in any other case.
N.J. Appeal partly allowed.
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