Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 1838 of 2019
AJMAL APPELLANT(S)
VERSUS
THE STATE OF KERALA RESPONDENT(S)
WITH
Criminal Appeal No. 1839 of 2019
AND WITH
Criminal Appeal No. 1840 of 2019
J U D G M E N T
Vikram Nath, J.
1. The present set of three appeals filed by
accusedappellants namely, Biju (accused no.1),
Ashique Salam (accused no.2) and Ajmal (accused
Signature Not Verified
no.3) assail the correctness of the judgment and
Digitally signed by
Indu Marwah
Date: 2022.07.18
13:03:37 IST
Reason:
1
th
order dated 30 May, 2019 passed by the High
Court of Kerala in Criminal Appeal Nos. 91, 238 and
564 of 2014, whereby the aforesaid appeals were
partly allowed. The conviction of these three
1
appellants under sections 143, 147, 148 IPC read
with section 149 IPC was set aside, however, their
conviction and sentence under sections 341, 323,
324, 427 and 302 read with section 34 IPC as
awarded by the Trial Court was confirmed.
2. At the outset, it may be pointed out that there
were 10 (ten) accused, who were chargesheeted.
The present appellants are accused nos. A1, A2 and
A3. Four accused namely accused nos. 4, 5, 7 and
10 were acquitted of all the charges by the Trial
Court. Further High Court acquitted three accused
namely accused nos. 6, 8 and 9 of all the charges.
Thus, out of 10 (ten) accused, the present three
1 IPC – Indian Penal Code, 1860
2
accusedappellants A1, A2 and A3 stand convicted
by the High Court and, as such, are before this
Court.
3. According to the prosecution case the entire
transaction was in three parts. It is briefly stated as
under:
3.1. In the last week of January, 2008, there
were festivals going on in the Church located at
Thidanadu and Variyanikkadu. The deceased
Varkeychen @ George Thomas along with his
friends initially went to Thidanadu Church in a
Scorpio Car, which was driven by Saji Joseph
(P.W.1) to attend a musical festival (gana mela) .
The deceased along with his friends watched the
programme for about half an hour and,
thereafter, proceeded towards another Church
at Variyanikkadu to enjoy the festival going on
3
there. At about 9:00 p.m., they were returning to
Thidanadu Church, when two motorbikes
driven by accused no.9 (Sabeer) and accused
no.3, Ajmal were moving in front of their Car
and blocked their way. Accused no.6 (Razique
Jalal @ Razee) was sitting as a pillion on the
motorcycle, driven by A3 (Ajmal). At that time, a
verbal altercation took place between Saji
Joseph (PW1) and A3 (Ajmal) regarding the
bikes not giving way to their vehicle (four
wheeler).
3.2. At around 10:45 p.m., deceased along with
his friends were returning, when their Car
reached the place called Veyilukanampara
Junction in Thidanadu Kara, they saw accused
no.9 (Sabeer) waiting for them by the side of the
road and soon thereafter the other accused also
4
joined him on different bikes. All the ten
accusedpersons formed an unlawful assembly
and in prosecution of a common object
wrongfully restrained the deceased and his
friends and compelled them to alight from their
vehicle. Once, they were out of the vehicle, they
were attacked by the accusedappellants. The
accused no.1 (Biju) hit the deceased with a stick
of casuarina tree (marked as MO2). Whereas
accused no.2 (Ashique Salam) hit on the back of
his neck with a brick (marked as MO3), as a
result of these two injuries, deceased fell on the
road. Accused no. 3 (Ajmal) assaulted Saji
Joseph (PW1) with a stick of casuarina tree
(marked as MO1) causing injuries on his head
and other parts of the body. As by this time,
5
public had started gathering, the accused left
the place of occurrence.
3.3. Further, when the deceased was being
taken in the car by his friends towards the
hospital, once again, the vehicle was stopped by
the accusedpersons near Chennadu Junction,
where accused no.3, Ajmal threw stones at the
car causing damage to the wind screen and
other glasses.
3.4. The injureddeceased was taken to IHM
Hospital, Bharananganam and from there, he
was referred to the Medical College Hospital at
Kottayam. His condition was deteriorating, as
such, he was shifted to Medical Trust Hospital,
Ernakulam, where he succumbed to the injuries
on the following day at about 4:45 a.m. The First
Information Report was lodged by Peter (PW2)
6
on his statement, which was registered as FIR
(Ext.P.1).
4. The investigation was taken over by the Circle
Inspector (PW20), who prepared the inquest report
(Ext.P2). The dead body was sent for postmortem,
which was conducted by Assistant Professor of
Forensic Medicine and Deputy Police Surgeon,
Medical College Hospital, Kottayam (PW13) at
about 2:05 p.m. on 28.01.2008. He prepared the
postmortem report (Ext.P10) mentioning the
following antemortem injuries:
“(1) Contusion of scalp 10 X 8 c.m. involving the full
thickness of left occipital region, its lower extent 3
c.m., above root of neck and 2 c.m. outer to midline.
(2) Contusion of right cheek 5 X 4 c.m. X 0.5 c.m.
(3) Abraded contusion 8 X 1 c.m.2 c.m. X 1 c.m.
horizontally oblique involving right side of neck and
fact, its lower outer extent 7 c.m. above root of neck
and 10 c.m. outer to midline.
The skull showed fissured fracture 8 c.m. long
involving the occipital bone of left side of posterior
7
cranial fossa, 11.5 c.m. outer to midline,
corresponding to injury No.1. Dura was intact had a
bluish tint and tense, subdural clots were seen
overlying right frontal and temporal lobe of brain
with bilateral subarachnoid haemorrhage. The pons
on sectioning showed haemorrhagic area 1.5 c.m. x
1 c.m. The right frontal pole of brain had contusion
3 x 2 x 0.5 c.m. Brain showed fattened gyri and
narrow sulci. The anterior cranial fossa a right side
showed fissured fracture 4 c.m. long.
(4) Contusion 5 x 4 x 0.5 c.m. long.
(5) Abrasion 2 x 1 c.m. on front of left knee.”
5. After completing the investigations, the police
2
report under section 173(2) Cr.P.C. was submitted,
whereupon, cognizance was taken by the Magistrate
and the matter committed to the Sessions Court for
trial. The Trial Court framed charges under sections
143, 147, 148, 341, 323, 324, 427 and 302 read
with section 149 IPC. The charges were read over to
the accused, who pleaded not guilty and, as such,
were put to trial.
2 Cr.P.C. – Code of Criminal Procedure, 1973
8
6. The prosecution examined 21 witnesses as PW
1 to PW21 and exhibited as many as 74
documentary evidence marked as Exts:P1 to P74
and further produced 19 material objects marked as
MO1 to MO19. After the close of the prosecution
evidence, the accused were examined under section
313 Cr.P.C. and the incriminating material was put
to them. They denied all such circumstances and
reiterated their innocence. The Investigating Officer
also conducted a test identification parade.
7. After considering the material evidence on
record and after hearing the learned counsel for the
parties, the Trial Court acquitted four accused
namely, accused nos.4, 5, 7 and 10 namely, Nijas,
Naseebulla @ Nazeeb, Seenaj and Shihab. It further
convicted the rest of the 6 (six) accused nos. 1, 2, 3,
6, 8 and 9, namely, Biju, Ashique Salam, Ajmal,
9
Razique Jalal @ Razee, Salim Basheer @ Saly and
Sabeer respectively.
8. Aggrieved by the conviction, all the 6 (six)
accused preferred appeals before the High Court.
Criminal Appeal No.87 of 2014 was filed by the
accused nos.6 and 8 namely, Razique Jalal @ Razee
and Salim Basheer @ Saly, whereas Criminal Appeal
No.132 of 2014 was filed by accused no.9Sabeer.
As already recorded above, the other three appeals
bearing nos.564, 238 and 91 of 2014 were filed by
the accused nos.1, 2 and 3 respectively namely,
Biju, Ashique Salam and Ajmal. As already recorded
above, the High Court allowed Appeal Nos.87 and
132 of 2014 acquitting the three accused nos.6, 8
and 9 of all the charges, whereas it partly allowed
the appeal nos.564, 238 and 91 of 2014 of the
present three appellants. Aggrieved by the judgment
10
of the High Court, the three appellants are before
this Court.
9. The prosecution has established:
(i) that the death of deceasedVarkeychen @
George Thomas was homicidal;
(ii) that PW1, PW2 and PW4 suffered
simple and grievous hurt which took place
at the date, time and place stated in the
FIR.
(iii) that the FIR was promptly lodged;
(iv) the antemortem injuries suffered by the
deceased is in consonance with the report
registered by PW2 and also established
from the statements of PW1, PW2 and
PW4, who are the injured eyewitnesses.
(v) The recovery of the material objects (MO
nos.1, 2 and 3) used by the three
11
appellants in causing the fatal injuries to
the deceased as also the injuries to PW1,
PW2 and PW4.
10. Insofar as the test identification parade is
concerned, the same has not been found to be very
reliable by the courts below, however, as the
witnesses and the injured knew the accused, their
identification in Court has been found to be
sufficient by the Courts below. They were all
residents of neighbourhood and knew each other.
11. We are, thus, satisfied that the occurrence in
the manner as set up by the prosecution has been
duly established. The deceased died due to the
injuries caused by accused nos.1 and 2 by using a
stick (MO2) and a brick (MO3), whereas, the
injuries caused to the PW1, PW2 and PW4 is on
account of the assault by accused no.3 by using a
12
stick (MO1). The only question which requires
consideration is whether it was a culpable homicide
amounting to murder punishable under section 302
IPC as has been held by the courts below or it was a
culpable homicide not amounting to murder
punishable under section 304 of IPC as submitted
by the Counsel for the appellants.
12. Learned counsel for the appellants have led
great emphasis on the manner, in which the
incident occurred. According to them,
(i) there was no premeditation of committing
murder.
(ii) the accused, admittedly, when they accosted
the vehicle and compelled the deceased and the
injured to come out of the vehicle, were not
armed with any weapons.
13
(iii) It was only when they alighted from the
vehicle and some heated arguments took place
as a result of the earlier verbal altercation in
not giving a pass to the Scorpio vehicle to
overtake the motorbikes, that the accused
appellants picked up the stick of casuarina tree
from the decorations, which had been made at
that place and also the brick from the side of
the road and assaulted with it.
(iv) both these weapons used could not be said
to be deadly weapons but could have definitely
caused grievous hurt and may be injuries,
which could result into death.
(v) it is true that the injuries noted in the post
mortem report of the deceased were on the vital
part i.e. the head and neck and which,
according to the medical evidence, was
14
sufficient in ordinary course to cause death,
but the same was unintentional.
(vi) only one blow each was given by accused
nos. 1 and 2 to the deceased. There was no
repeated assault.
(vii) there was no to commit murder,
mens rea
therefore, the same would fall within the
exception of section 300 IPC.
(viii) On the own findings of the High Court, it
was not a case of culpable homicide amounting
to murder.
(ix) Our attention has been drawn to paragraph
nos.27 and 28 of the judgment of the High
Court, which took into consideration the
evidence led by the eyewitnesses and injured
namely, PW1, PW2 and PW4, according to
which, the charge under section 302 ought to
15
have been converted to section 304 IPC. The
appellants ought to have been acquitted under
section 302 IPC and at best could have been
convicted under section 304 IPC.
(x) Paragraph Nos.27 and 28 of the judgment of
the High Court are reproduced below:
“27. We have no dispute with the proposition
that common object may be formed at the spur
of the moment, and that prior meeting of minds
or a formal assembly consisting of the members
of the unlawful assembly to commit a particular
crime may not be essential. The precedent on
the point referred to earlier would indicate that
the knowledge of the members of the assembly
that the act which actually occurred was very
likely to be caused by their acts, is sufficient to
make them vicariously liable for the ultimate
consequences. But, in the instant case, wheat
we see from the evidence is that the first part of
the occurrence at Chemmalamattom was only
an altercation between P.W.1 and A3 in the
presence of A6 and A9 with regard to the bikers
not giving way and passage to the car driven by
P.W.1 for overtaking. The altercation also did
not last long enough so as to form a vengeance
16
in the mind of A3, A6 and A9 so as to garner
support of the remaining accused to form an
unlawful assembly with the common object of
committing murder, particularly of the
deceased, because the altercation was only with
A3 and P.W.1 and the deceased had nothing to
do with the altercation. Under the
circumstances, we are of the opinion that the
accused definitely did not have a common
object of murdering the deceased. It is also
relevant to note that had the accused
entertained the common object to commit
murder or even previous act, they would have
been lying in wait for the Scorpio car armed
with deadly weapons.. None of the prosecution
witness has a case that the accused had
accosted them at the scene of occurrence armed
with deadly weapons. It is only after the
witnesses alighted from the car, P.W.1 had a
conversation with A9 and accused nos.1, 2 and
3 picked up the weapons which were available
there and attacked the passengers in the car,
including the deceased. Even if A3 had called
for others to kill, it could not have been the
deceased because he only had a vengeance
against P.W.1, and, therefore, the entire
occurrence as appeared to us from the oral
testimony of witnesses would indicate that it is
only a chance encounter without any
17
premeditated motive in prosecution of common
object.
28. It is also pertinent to note that P.W.1
had testified that he had a friendly conversation
with A9 in the beginning after he alighted from
the car at the scene of occurrence. It is also
testified that when the accused went to attack
the passengers of the car, including the P.W.1,
A9 had prevented others from causing injuries.
This particular statement in the testimony of
P.W.1 clearly exonerated A9 of the allegations
of having acted in prosecution of common object
of committing murder. He was not even wielding
any weapon in his hands. In fact, except A1, A2
and A3, none of the other accused had picked
up any weapon from the scene of occurrence.
Even A1 and A3 had picked up sticks, which
were hanging at the scene of occurrence as part
of the decoration done in connection with the
Church festival. MO3 brick was picked up by A2
from the side of the road abruptly during the
scuffle that ensued in consequence of the
passengers of the car alighting. Under the
circumstances, we are of the considered opinion
that apart from A1, A2 and A3, none of the
other accused could be guilty for attacking the
deceased, P.W.1 and P.W.2. The prosecution
has not succeeded in establishing that there
was formation of an unlawful assembly acting
18
in furtherance of common object. The finding of
the learned Sessions Judge roping in all the
appellants resorting to section 149 is therefore
not held good. It is also pertinent to note that
none of the accused were earlier armed with
deadly weapons and therefore it cannot be said
that they were guilty of committing riot armed
with deadly weapons, an offence punishable
under section 148 of the IPC.”
(xi) As there was no intention to commit
murder or a preplanned attempt to commit
murder, section 302 IPC, charge could not have
been sustained.
(xii) that appellants are in jail and have
suffered incarceration of several years.
13. On behalf of the State of Kerala, it is submitted
that the entire transaction took place in three parts.
The first incident took place when a verbal
altercation took place in overtaking the vehicles.
The second incident took place, in which the
19
physical assault occurred causing fatal injuries to
the deceased and causing simple and grievous hurt
to the three witnesses namely, PW1, PW2 and PW
4. The third incident took place when the injured
was being taken to the hospital; stones were pelted
by accused no.3 causing damage to the vehicle.
14. Learned counsel for the State further submitted
that there was clear motive to commit murder as
after the first episode of verbal altercation took
place, it was only with an intention to commit
murder that all the accused joined together by
forming an unlawful assembly accosting the vehicle
in which the deceased was travelling with his
friends compelling them to come out of the vehicle
and thereafter it was an open assault with sticks
and bricks, which were used with such force
causing fatal injuries to the deceased and,
20
therefore, it was nothing short of committing a pre
planned murder. Even after having caused the fatal
injuries, the accused further tried to prevent the
deceased from being taken to the hospital and the
intention was to stop the vehicle and cause enough
delay so that the deceased, who was still alive may
ultimately die. The judgment of the High Court does
not suffer from any infirmity and the appeal, acco
rdingly deserves to be dismissed. Learned
counsel has placed reliance upon a judgment of this
3
Court in Gulab vs. State of U.P.
15. Having considered the submissions and having
perused the material on record, we do not find any
infirmity in the prosecution establishing the
incident as set up in the First Information Report.
For the said conclusion, we have taken note of the
following:
3 2021(12) JT 134
21
(i) First Information Report was promptly
lodged.
(ii) The prosecution story as set up in the FIR
appears to be probable.
(iii) The medical evidence fully corroborates
the prosecution story.
(iv) PW1, PW2 and PW4, the three eye
witnesses have fully supported the prosecution
story and have narrated the same incident as it
occurred.
(v) Formal witnesses have discharged their
burden by proving the police papers and other
documentary evidence placed on record by the
prosecution.
(vi) The material objects recovered have also
been duly proved.
(vii) According to the medical evidence, the
material objects alleged to have been used in
22
the commission of crime could have been
actually used in causing the injuries.
16. The only question which falls for our
consideration is as to whether the manner in which
the entire transaction took place in particular
relating to the physical assault, would amount to
culpable homicide amounting to murder or culpable
homicide not amounting to murder.
17. The distinctive features and the considerations
relevant for determining a culpable homicide
amounting to murder and distinguishing it from the
culpable homicide not amounting to murder has
been a matter of debate in large number of cases.
Instead of referring to several decisions on the point
reference is being made to a recent decision in the
4
case of Mohd. Rafiq vs. State of M.P. , wherein
Justice Ravindra Bhatt, speaking for the Bench,
4 (2021) 10 SCC 706
23
relied upon two previous judgments dealing with
the issue as narrated in paragraph nos.11, 12 and
13 of the report which are reproduced below:
“11. The question of whether in a given case, a
homicide is murder 3, punishable under section
302 IPC, or culpable homicide, of either
description, punishable under section 304 IPC has
engaged the attention of courts in this country for
over one and a half century, since the enactment
of the IPC; a welter of case law, on this aspect
exists, including perhaps several hundred rulings
by this court. The use of the term “likely” in
several places in respect of culpable homicide,
highlights the element of uncertainty that the act
of the accused may or may not have killed the
person. Section 300 IPC which defines murder,
however refrains from the use of the term likely,
which reveals absence of ambiguity left on behalf
of the accused. The accused is for sure that his act
will definitely cause death. It is often difficult to
distinguish between culpable homicide and
murder as both involve death. Yet, there is a
subtle distinction of intention and knowledge
involved in both the crimes. This difference lies in
the degree of the act. There is a very wide variance
of degree of intention and knowledge among both
the crimes.
12. The decision in State of Andhra Pradesh v
5
notes the
Rayavarapu Punnayya & Anr
important distinction between the two provisions,
and their differing, but subtle distinction. The
court pertinently pointed out that: "12. In the
scheme of the Penal Code, "culpable homicide" is
genus and "murder" its specie. All "murder" is
"culpable homicide" but not vice versa. Speaking
generally, "culpable homicide" sans "special
5 1976 (4) SCC 382
24
characteristics of murder", is "culpable homicide
not amounting to murder". For the purpose of
fixing punishment, proportionate to the gravity of
this generic offence, the Code practically
recognises three degrees of culpable homicide. The
first is, what may be called, "culpable homicide of
the first degree". This is the greatest form of
culpable homicide, which is defined in section 300
as "murder". The second may be termed as
"culpable homicide of the second degree". This is
punishable under the first part of section 304.
Then, there is "culpable homicide of the third
degree". This is the lowest type of culpable
homicide and the punishment provided for it is,
also, the lowest among the punishments provided
for the three grades. Culpable homicide of this
degree is punishable under the second part of
section 304.. 13. The academic distinction between
"murder" and "culpable homicide not amounting to
murder" has vexed the courts for more than a
century. The confusion is caused, if courts losing
sight of the true scope and meaning of the terms
used by the legislature in these sections, allow
themselves to be drawn into minute abstractions.
The safest way of approach to the interpretation
and application of these provisions seems to be to
keep in focus the keywords used in the various
clauses of sections 299 and 300."
13. The considerations that should weigh with
courts, in discerning whether an act is punishable
as murder, or culpable homicide, not amounting to
murder, were outlined in Pulicherla Nagaraju @
6
.
Nagaraja Reddy v State of Andhra Pradesh
This court observed that: "29. Therefore, the Court
should proceed to decide the pivotal question of
intention, with care and caution, as that will
decide whether the case falls under section 302 or
304 Part I or 304 Part II. Many petty or
insignificant matters plucking of a fruit, straying
of cattle, quarrel of children, utterance of a rude
6 (2006) 11 SCC 444
25
word or even an objectionable glance, may lead to
altercations and group clashes culminating in
deaths. Usual motives like revenge, greed, jealousy
or suspicion may be totally absent in such cases.
There may be no intention. There may be no
premeditation. In fact, there may not even be
criminality. At the other end of the spectrum, there
may be cases of murder where the accused
attempts to avoid the penalty for murder by
attempting to put forth a case that there was no
intention to cause death. It is for the courts to
ensure that the cases of murder punishable under
section 302, are not converted into offences
punishable under section 304 Part I/II, or cases of
culpable homicide not amounting to murder are
treated as murder punishable under section 302.
The intention to cause death can be gathered
generally from a combination of a few or several of
the following, among other, circumstances; (i)
nature of the weapon used; (ii) whether the
weapon was carried by the accused or was picked
up from the spot; (iii) whether the blow is aimed at
a vital part of the body;(iv) the amount of force
employed in causing injury; (v) whether the act
was in the course of sudden quarrel or sudden
fight or free for all fight; (vi) whether the incident
occurs by chance or whether there was any
premeditation; (vii) whether there was any prior
enmity or whether the deceased was a stranger;
(viii) whether there was any grave and sudden
provocation, and if so, the cause for such
provocation; (ix) whether it was in the heat of
passion; (x) whether the person inflicting the
injury has taken undue advantage or has acted in
a cruel and unusual manner; (xi) whether the
accused dealt a single blow or several blows. The
above list of circumstances is, of course, not
exhaustive and there may be several other special
circumstances with reference to individual cases
which may throw light on the question of
intention.””
26
18. For the said purpose, we examined the evidence
on record as narrated in the First Information
Report, during investigation as per the evidence
collected by the Investigating Officer and also the
evidence led during the course of trial in particular
by the injured eyewitnesses.
19. From the perusal of all the above material, the
prosecution story as set up and as established in
brief can be summarized as under:
th
(i) On the fateful evening of 27 January, 2008,
the first incident took place around 9:00 p.m.
regarding the overtaking of the vehicles of one
party and the other resulting into a verbal
altercation at that stage between PW1 and A9.
(ii) Both the parties went in separate directions
after the verbal altercation.
27
(iii) Later on, at about 10:45 p.m., when the
deceased along with his other friends PW1,
PW2 and PW4 were returning, they were
stopped by the accused 10 (ten) in number,
they were wrongfully restrained, compelled to
alight from their vehicle.
(iv) Again, a verbal altercation took place
whereafter accused nos. 1 and 3 picked up a
stick of casuarina tree from the decoration set
up on the road side and accused No.2 picked
up a brick from the road side. Accused No.1 hit
the deceased with a stick on his head, whereas
accused No.2 hit the deceased with the brick,
as a result of which, the deceased fell on the
ground. Accused No.3 attacked the others with
a stick and caused them simple and grievous
hurt.
28
(v) Accused Nos.1 and 2 had caused only one
injury each on the deceased. It was not a repeat
or a multiple assault by them.
(vi) Although, role of exhortation to kill the
deceased was assigned to accused No.3, but
during trial and in the crossexamination, all
the three witnesses PW1, PW2 and PW4
stated that they were not sure whether they
have said so in their statements under section
161 Cr.P.C. Thus, apparently, there was no role
assigned to exhortation to any of the accused to
kill the deceased.
20. The Trial Court had acquitted 4 (four) accused
namely accused nos.4, 5, 7 and 10 and the High
Court acquitted three other accused namely
accused nos.6, 8 and 9 of all the charges.
29
21. Considering the statutory provisions laid down
in IPC and the law on the point, we find that the
present case falls into the category of a culpable
homicide not amounting to murder falling under
section 304 PartII IPC for the following reasons:
(i) There was no premeditation of mind to
commit murder.
(ii) All the accused were admittedly not armed
when they stopped the vehicle of the deceased
and his friends and compelled them to alight
from the same.
(iii) It was during the verbal altercation at that
stage that the three accused picked up the
weapon of assault namely, sticks of casuarina
tree and a brick from the road side.
(iv) Single blow was given to the deceased by
the accused nos.1 and 2.
30
(v) The case set up for exhortation to kill the
deceased has not been found to be proved.
(vi) Both the groups consisted of young men.
(vii) The High Court found that there was no
unlawful assembly formed with a common
object and accordingly had acquitted three
other accused and also the present appellants
from the charge of unlawful assembly under
section 149 IPC.
(viii) The appellants have been convicted with
the aid of section 34 IPC.
22. The reference to the judgment in the case of
Gulab Singh (supra) by the learned counsel for the
State of Kerala, in our opinion, is of no relevance to
the facts and circumstances of the present case.
There was no issue involved relating to the
distinction between culpable homicide amounting to
31
murder or not amounting to murder. The issue
involved in the case of Gulab Singh was relating to
the applicability of section 34 IPC.
23. Thus, for all the reasons stated above, we are of
the view that the appellants would be entitled for
acquittal under section 302 IPC but would be liable
to be convicted under section 304 PartII IPC. Rest
of the conviction upheld by the High Court and the
sentence for the charges under sections 341, 323,
324 and 427 read with section 34 IPC is
maintained. It is ordered accordingly.
24. Now coming to the question of sentence upon
conviction under section 304 PartII IPC, we find
that all the three appellants are in jail and have
undergone several years of incarceration. We
accordingly award the sentence for the period
already undergone by all the three appellants. The
32
appellants would be released forthwith unless they
are required in any other case.
25. Appeals stand partly allowed as above. The
impugned judgment of the High Court stands
modified to the aforesaid extent.
…………..........................J.
[AJAY RASTOGI]
………….........................J.
[VIKRAM NATH]
NEW DELHI
JULY 12, 2022.
33