REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 540 OF 2019 (ARISING OUT OF S.L.P. (CRL.) NO. 7378 OF 2016)

MANI                    .......APPELLANT   

             VERSUS

STATE OF KERALA AND OTHERS                    ........RESPONDENTS

WITH

CRIMINAL APPEAL NO. 541 OF 2019 (ARISING OUT OF S.L.P. (CRL.) NO. 9466 OF 2016)

STATE OF KERALA     ..…..APPELLANT

VERSUS

RATHNAKUMAR AND OTHERS     .……..RESPONDENTS

J U D G M E N T

Hemant Gupta, J.

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 other accused i.e.

accused No.2-Rathnakumar, 3-Praveen and 4-Selvaraj was maintained

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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

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.

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  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 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

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Code1.  In  his  police statement,  he stated that  at  about  8.00 PM on

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 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 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  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, whereas, he and Rajesh had received

grievous injuries.  On completion of investigation, seven persons were

1 Code  

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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 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

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 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

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

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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 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 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

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 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 on the basis of circumstances which clearly proves that

the accused had the intention of murderous assault on the victims.

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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 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 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  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  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  2-

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Rathnakumar is said to have attacked complainant with Vadival sword.

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 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 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.

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

commotion  in  which  victims  were  injured.  The  High  Court  placed

reliance upon Supreme Court judgments reported as Dharam Pal and

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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 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 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 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  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 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

2 AIR 1978 SC 1492 3 AIR 2011 SC 2775

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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 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  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 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 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 Court found that though the witnesses have been injured but the

injuries are not serious.  

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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

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

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.  

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

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

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knowledge  or  information  that  the  victims  are  moving  towards

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.

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

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.  

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/.

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.  

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.………..………...........................J.   (Dr. Dhananjaya Y. Chandrachud)

....…….......................................J.       (Hemant Gupta)

New Delhi, April 1, 2019.

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