Full Judgment Text
Non-Reportable
2025 INSC 488
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Special Leave Petition (Crl.) No.12926 of 2024
R. Baiju
...PETITIONER
VERSUS
The State of Kerala
...RESPONDENT
J U D G E M E N T
K. VINOD CHANDRAN, J.
1. A very common place altercation escalated into a
terrorizing attack leading to the death of a person and
injuries to three others. The investigation changed
hands several times, which also had political overtones,
despite which the prosecution resulted in the conviction
by the Trial Court of all the accused for the offences
punishable under Sections 143, 147, 323, 324, 427, 449 &
302 read with Sections 149 and 120B of the Indian Penal
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2025.04.16
16:30:55 IST
Reason:
1
Code, 1860 .
1
The IPC
Page 1 of 19
SLP(Crl.) No. 12926 of 2024
2. The sixth accused, the appellant herein, who was
roped in on the charge of conspiracy, for the earlier
incidents, his presence at the crime scene and the
exhortation made to kill, was handed down the
sentence of death, being the main conspirator and the
others were sentenced to imprisonment for life. In
appeal, the High Court acquitted the fifth accused and
modified the conviction of accused No.1 to 4 and
altered the conviction under Section 302 read with
Section 149 of IPC to Section 304 Part II read with
Section 34 of IPC and convicted the sixth accused, who
is the sole appellant herein under Sections 323, 324,
427, 450 and 304 Part II of IPC read with Section 120B of
IPC. The appellant herein was sentenced under Section
450 read with Section 120B to undergo rigorous
imprisonment for 5 years together with fine of
Rs.10,000/- and also sentenced to RI for 10 years under
Section 304 Part II read with Section 120B of IPC with a
fine of Rs. 25,000/- and default sentences of one year
each. The sentence for the offences under Section 323,
324, 427 of IPC by the Trial Court stood confirmed.
Page 2 of 19
SLP(Crl.) No. 12926 of 2024
3. We heard Sh. Abhilash M.R learned counsel
appearing for the appellant. It was argued that A6 was
roped in as the main conspirator who had not joined the
frontal attack alleged by the prosecution on the
deceased and his family members. A5 was acquitted
and A6, whose role was identical to A5, was convicted,
erroneously. It is argued that PWs 1 to 3, the daughter-
in-law, son and wife of the deceased did not name A6 in
the initial statement given under Section 161 of the
2
Code of Criminal Procedure, 1973 and was included
only later in the statements given under Section 164
Cr.P.C. The reliance placed on PW7 is untenable since
he belongs to a rival political party and there were
cases pending between him and A6, clearly indicating
an intention to somehow inculpate A6.
4. Even if the attack based on a conspiracy, as alleged
by the prosecution is believed, none of the accused
carried any weapons into the house of the deceased.
The wooden logs which are alleged to have been used
by the accused were lying at the scene of occurrence,
2
The Cr.P.C.
Page 3 of 19
SLP(Crl.) No. 12926 of 2024
the house of the deceased. The learned counsel has
also placed before us a number of decisions to rubbish
the conspiracy theory, set up by the prosecution, which
was also not proved. There was only the interested
testimony of PW7 pointing to the conspiracy alleged
and there is total failure to establish a common intention
under Section 34 IPC. The High Court erred in entering
a conviction under Section 304 Part II IPC, since no
knowledge that the act is likely to cause death can be
attributed to A6.
5. We have anxiously considered the judgment of the
High Court, which is rather elaborate and deals
minutely with the evidence. On facts, the genesis; which
also has a bearing on the conspiracy alleged, is with the
incident that happened in the afternoon, on the crucial
day, in the house of the deceased. A6 along with others
came to the house of the deceased to sell coir mats
manufactured by Kudumbasree; a self-help group of
women, constituted in every Panchayat under the aegis
of the State through the local bodies. PW2 was first
approached who directed them to the deceased, his
Page 4 of 19
SLP(Crl.) No. 12926 of 2024
father, who refused to make a purchase, despite the
insistence of A6. Enraged A6 threw a mat at the
deceased and asked him to burn it if he does not want
it. The deceased then directed PW2, his son to raise a
query in the Ward Council Meeting as to whether the
purchase of coir mats from the Kudumbasree unit was
compulsory or not. Here we pause, to notice that A6 was
a Municipal Councillor and the Chairman of the
Municipal Standing Committee, and an influential
leader of the political party which ruled both the State
and Municipality of Cherthala. All the accused were
active members of the very same political party.
6.
In the evening, PW2 raised a query regarding the
coercive sale of coir mats in the Ward Council Meeting,
to which A6 reacted combatively. It was later, in the
night, that accused 1 to 4, as alleged by the prosecution,
in retaliation, along with A5 and A6 went to the house of
the deceased where accused 1 to 4 unleashed a frontal
attack on the inmates. A5, allegedly entered the house
only briefly, to kick the deceased and destroy the
window panes, while A6 stood outside exhorting the
Page 5 of 19
SLP(Crl.) No. 12926 of 2024
accused who entered the house to kill the inmates. The
attack unleashed resulted in the death of the deceased
and injuries to his son and daughter-in-law.
7.
As found by the Division Bench of the High Court
the incident that happened in the afternoon is spoken of
by PW2 and 3, the family of the deceased & PW4, a
neighbour who had been examined to speak on both
the incidents; that which happened in the afternoon and
at night. PW4 turned hostile and failed to identify the
accused who participated in the incident at night,
however, she spoke of A6’s presence in the house of the
deceased in the afternoon, when a wordy altercation
ensued. She also spoke of the incident at night when an
attack was unleashed, but refused to identify the
accused, which she said was out of fear and not the
influence of the accused. PW5 another neighbour of the
deceased who participated in the Ward Council
Meeting held on 29.11.2009 also deposed that there
were arguments between PW2 and A6, in the meeting
when PW2 raised a question of compulsory sale of coir
mats, when A6 again asked PW2 to burn the coir mat, if
Page 6 of 19
SLP(Crl.) No. 12926 of 2024
he does not want it. There is sufficient corroboration by
PW13 an official of the Cherthala Municipality, who
attended the Ward Council Meeting held on 29.11.2009.
PW13 deposed that a youngster raised a query with
respect to sale of coir mats, which was answered by A6.
PW13 did not speak of any heated argument between
PW2 and A6. However, the fact remains that there is
sufficient corroboration for the incident which
happened in the afternoon and in the evening at the
Ward Council Meeting, which led to the attack on the
family members of the deceased. The motive alleged,
hence stands established.
8.
According to the evidence of PW1 to 3, at around 7
P.M., accused 2 to 4 called out the name of PW2 from
outside his house. PW2 called them inside, when
accused 1 to 4 attacked him with wooden logs. PW1,
PW2's wife, who came to his rescue was also assaulted.
PW3 intervened, when the child of PW1 and PW2 was
attempted to be harmed, and took the child away from
A3 who caught hold of the child. The deceased who was
in the adjoining room came out, hearing the commotion
Page 7 of 19
SLP(Crl.) No. 12926 of 2024
and was beaten by A1 on his head using a wooden log,
which blow fell on the back of his head on the right
side. A1 again delivered two blows on the head of the
deceased with MO1 wooden log. Later, A2 also
delivered blows on the deceased with MO3 wooden log.
PW1 spoke of having seen A6 standing outside the
house and deposed that he exhorted the accused who
entered the house, to ‘kill them’ , meaning the inmates of
the house.
9. The evidence of PW1 to 3 stands corroborated by
the evidence of PW4 who came to the house of the
deceased, hearing the hue and cry. She identified the
first accused in a yellow t-shirt and did not identify the
others. As we noticed earlier, though PW4 was declared
hostile, she spoke of the incident that happened in the
house of the deceased in the afternoon and also spoke
of having come to the house of the deceased after the
incident and her first-hand knowledge of the
destruction caused in the house of the deceased. PW6,
another neighbour of the accused also corroborated the
evidence of PW1 to 3 and identified A1 & A2 who were
Page 8 of 19
SLP(Crl.) No. 12926 of 2024
standing outside the house, when he came, as also
accused A3 and A4 who were smashing the windows of
the house. On entering the house, he saw the deceased
vomiting and there were indications of a paralytic attack
on his face. PW2, standing beside him also had blood
on his body. PW6 accompanied the victims to the
hospital.
10. That the death was a homicide is clear from the
evidence of PW10 who spoke in accordance with Ex.P5,
Post Mortem Certificate. The cause of death was by
reason of the head injury which is shown as injury No.1
in Ex.P5. The doctor deposed that the injury numbers 1
to 7 found on the deceased could be caused by MOI
and MOIII wooden logs and were ante-mortem. Injury
No.8, according to the expert could be caused by
stamping or by kicking. The accused was admitted to
Medical College, Kottayam on 29.11.2009 with a severe
head injury and succumbed on 8.12.2009, despite
craniotomy and haematoma evacuation having been
done on the patient. The death hence was homicidal
and it occurred due to the attack unleashed at the house
Page 9 of 19
SLP(Crl.) No. 12926 of 2024
of the deceased, by the accused. In addition, is the
evidence of PW12, the doctor who examined PW1 and
PW2, the injured, at the Taluk Hospital on 29.11.2009,
providing further support to the prosecution version.
The injuries found on the body of PW1 & PW2 were
consistent with the narration of the attack on them.
PW12 also had noted the cause of injury as ‘ having been
beaten up by identifiable persons ’.
11. We are not, in the instant appeal, concerned with the
charges proved against the other accused nor even the
acquittal of A5 since the above appeal is only filed by
A6. We adjourned the matter at the initial stage, after
querying the State as to whether they intend to file any
appeal. We were told by the Standing Counsel that he
does not have any instructions and hence we
proceeded with the matter; which we make clear is only
with respect to the conviction of the appellant under
Section 304 Part II read with Section 120B IPC and the
other provisions, as noticed above and we do not deal
with the alteration of sentence from Section 302 to 304B
Page 10 of 19
SLP(Crl.) No. 12926 of 2024
Part II, since there is no appeal as of now from the State
or the injured victims.
12. The first contention of the appellant is the principle
of parity of acquittal of similarly placed co-accused. A5
had his house in the neighbourhood of the scene of
occurrence; in front of which the accused were found to
have held a meeting before the attack unleashed at the
house of the deceased. The High Court has found that
the presence of A5 was quite natural since he had his
house in the neighbourhood. Insofar as the acquittal of
A5, PW1 had not mentioned the name of fifth accused in
her statement recorded under Section 161, Cr. P.C. The
statement of PW1 and PW3 that they saw the fifth
accused kicking the deceased and he was also present
among the assailants who unleashed the attack inside
the house were put to them as an omission in their
statement recorded by the Police. However, with respect
to A6, the testimony of PW1 is that he stood outside the
house and exhorted the accused 1 to 4 who entered the
house to ‘ kill them’. The First Information Statement of
PW1 as noticed by the High Court, is of Kannan having
Page 11 of 19
SLP(Crl.) No. 12926 of 2024
exhorted to kill PW2 which was alleged to have been
changed in the witness box and the said exhortation
attributed to A6.
13.
While the Division Bench held that the evidence of
PW1 regarding the presence of A5 and A6 cannot be
believed, the Division Bench believed the testimony of
PW1 with respect to A1 to A4. The presence of A6
spoken of by PW1 was disbelieved by the High Court,
since even in the FIR she had not stated so. However,
this has to be considered along with the biased
investigation, highlighted by the High Court itself. A6
was an influential political leader of the ruling party
and his name was purposefully not included in the
array of accused. We will deal with this more
elaborately a little later. Be that as it may, the earlier
incidents that happened in the afternoon and the
evening which led to the attack at night stood
established. The presence of A6 in the vicinity of the
crime scene, prior to the crime, in the company of the
other accused, also stood established. The High Court
rightly relied on State of Karnataka v. K. Yarappa
Page 12 of 19
SLP(Crl.) No. 12926 of 2024
3
Reddy , to find that even when the probity of
investigation is suspect, the rest of the evidence must
be scrutinised meticulously to ensure that criminal
justice is not rendered a causality.
14. The evidence of PW7 who saw A1 to A6 standing in
front of the house of A5 just before the incident
happened, is the physical manifestation of the
conspiracy. The motive and presence of A6 at the scene
of crime, is thus established. The motive arises from the
incident which happened in the afternoon, where
ensued a wordy altercation by A6 with the deceased;
which was followed up by another, in the Ward Council
Meeting, on the evening of the same day, with PW2. We
cannot find the evidence against A5 and A6 to be
identical and the culpability of A6 to be roped in under
Section 120B is quite evident; his presence at the scene
of occurrence established by the ocular testimony,
which unlike A5, who had his house in the vicinity, could
not be explained by A6; clinching his culpability.
3
(1999) 8 SCC 715
Page 13 of 19
SLP(Crl.) No. 12926 of 2024
15. In this context we have to necessarily consider the
contention of the appellant that he was added later,
which raised a reasonable doubt as to his involvement
in the incident that occurred at night. Here we have to
notice that there was a conscious attempt to divert the
investigation and frustrate the prosecution, especially
against A6 who is attested to be an influential political
leader, by none other than one of the Investigating
Officers (I.O.), PW18. PW17 was the officer who
commenced the investigation, prepared Ex.P3 scene
mahazar and seized MOI and MOIII weapons along with
the other articles as also arrested the accused 1 to 4 on
30.11.2009. PW18 took over the investigation from
PW17 who deposed that a particular political party was
in power in the State as also the Municipality, at the time
of occurrence and the sixth accused was an influential
political leader and the Chairman of the Standing
Committee of the Municipality. PW18 took additional
statements of PW’s 1 to 3 in which also there was no
disclosure of presence of A6 at the crime scene. Later,
the investigation was taken over by PW19 on 19.12.2009
Page 14 of 19
SLP(Crl.) No. 12926 of 2024
who, at the request of PW’s 1 to 3 made an application
before the Chief Judicial Magistrate, Alappuzha to
record the statements of PW’s 1 to 3 under Section 164
of Cr.P.C. This was specifically on the complaint raised
by PW’s 1 to 3 that their statements were not recorded
properly and there was a conscious attempt to somehow
exonerate A6. The statements of PW’s 1 to 3 were
recorded under Section 164 of Cr.P.C. and PW20, the
Judicial Magistrate, who recorded the statement
deposed that PW1 disclosed to PW20 that the Police
had not truthfully recorded her statement. The
inconsistencies in the FIR, based on the first information
of PW1 and the statements recorded by PW17 and
PW18 are hence inconsequential. This also has to be
viewed in the context of PW21, who eventually filed the
charge sheet, having failed to include PW19, I.O. who
initiated steps to record Section 164 statements of PW1
to 3, as a witness. It was at the instance of the Court,
PW19 was examined in the trial.
16. One other contention taken up is regarding PW7
who is said to be a member of a rival political party. It
Page 15 of 19
SLP(Crl.) No. 12926 of 2024
has to be observed that PW7 accepted that he was a
member of that political party and that there was a case
registered against him at the instance of A6, which was
settled between them. The correctness of these
statements, according to the High Court, was never
challenged in cross-examination but for a bland
suggestion that there are a number of cases between
them. There is no substantiation of the same by the
accused. PW7, who admitted his alliance to the rival
political party and the case with A6, who was residing
near the crime scene, was a truthful witness, as found
by the High Court.
17.
There is also a contention raised that DW1's
evidence was not reckoned by the Trial Court and the
High Court. DW1 is a person who is said to have
attended the Ward Council Meeting in the evening of
29.11.2009. He specifically deposed that there was no
argument between A6 and PW2 in the Ward Council
Meeting. We have already found that a wordy duel
ensued between A6 and PW2 in the Meeting, spoken of
by PW2, corroborated by PW5, a neighbour and also by
Page 16 of 19
SLP(Crl.) No. 12926 of 2024
PW13, an official of the Cherthala Municipality. Later,
DW1, in his deposition also tries to wriggle out of the
situation with a statement that he was not listening and
hence he cannot surely say as to what happened in the
Meeting; a thoroughly unreliable witness.
4
18. As has been held in State of Tamil Nadu v. Nalini ,
by the very nature of the offence of conspiracy, being
hatched in secrecy, no evidence of the common
intention of the conspirators can be normally produced
before Court. The offence can be proved largely by
inferences from the acts committed or words spoken by
the conspirators in pursuance of a common intention.
That an altercation occurred between A6 and the
deceased in the afternoon and another wordy duel in
public, on the same evening, with PW2, the son of the
deceased has been established by the prosecution. The
reaction of A6 in the afternoon, to the refusal of the
deceased to purchase a coir mat and in the evening,
when the question of compulsory sale of coir mats was
raised by PW2, was abrasive and violent. On the same
4
(1999) 5 SCC 253
Page 17 of 19
SLP(Crl.) No. 12926 of 2024
day evening, A6 was found with the other accused near
the house of the deceased, a few minutes before the
crime occurred in the house of the deceased. The
accused had called out PW2 from the outside the house
when PW2, unsuspectingly invited them inside. The
accused belonged to a political party, whose leader was
A6. Accused 1 to 4 entered the house and unleashed a
frontal attack on the family members with wooden logs.
Construction work was going on in the house of the
deceased and there were wooden logs lying in the
premises. Even if it is found that the accused did not
come with deadly weapons, before entering the house
they picked up the wooden logs, within the eye-sight of
A6. They entered the house of PW2 on his invitation and
unleashed an attack without any provocation from the
inmates of the house. Obviously, in retaliation of the
incidents that happened earlier, on the same day A6
had seen the accused picking up the wooden logs and
entering the house and alsso had exhorted them from
outside the house. A6 definitely had the knowledge that
the attack perpetrated on the accused could lead to
Page 18 of 19
SLP(Crl.) No. 12926 of 2024
death and the attack was carried out under his watch-
full eyes. As rightly held by the High Court, though the
heightened intention to cause death cannot be
attributed in the incident, the knowledge that the attack,
as established in the trial, is likely to cause death can
definitely be pinned down on A6, at whose instance and
connivance as also active instigation, the attack was
carried out.
19. We find absolutely no reason to interfere with the
conviction and sentence of A6 and dismiss the Special
Leave Petition.
20. Pending applications, if any, shall stand disposed of.
………….……………………. J.
(SUDHANSHU DHULIA)
………….……………………. J.
(K. VINOD CHANDRAN)
NEW DELHI;
APRIL 16, 2025.
Page 19 of 19
SLP(Crl.) No. 12926 of 2024
2025 INSC 488
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Special Leave Petition (Crl.) No.12926 of 2024
R. Baiju
...PETITIONER
VERSUS
The State of Kerala
...RESPONDENT
J U D G E M E N T
K. VINOD CHANDRAN, J.
1. A very common place altercation escalated into a
terrorizing attack leading to the death of a person and
injuries to three others. The investigation changed
hands several times, which also had political overtones,
despite which the prosecution resulted in the conviction
by the Trial Court of all the accused for the offences
punishable under Sections 143, 147, 323, 324, 427, 449 &
302 read with Sections 149 and 120B of the Indian Penal
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2025.04.16
16:30:55 IST
Reason:
1
Code, 1860 .
1
The IPC
Page 1 of 19
SLP(Crl.) No. 12926 of 2024
2. The sixth accused, the appellant herein, who was
roped in on the charge of conspiracy, for the earlier
incidents, his presence at the crime scene and the
exhortation made to kill, was handed down the
sentence of death, being the main conspirator and the
others were sentenced to imprisonment for life. In
appeal, the High Court acquitted the fifth accused and
modified the conviction of accused No.1 to 4 and
altered the conviction under Section 302 read with
Section 149 of IPC to Section 304 Part II read with
Section 34 of IPC and convicted the sixth accused, who
is the sole appellant herein under Sections 323, 324,
427, 450 and 304 Part II of IPC read with Section 120B of
IPC. The appellant herein was sentenced under Section
450 read with Section 120B to undergo rigorous
imprisonment for 5 years together with fine of
Rs.10,000/- and also sentenced to RI for 10 years under
Section 304 Part II read with Section 120B of IPC with a
fine of Rs. 25,000/- and default sentences of one year
each. The sentence for the offences under Section 323,
324, 427 of IPC by the Trial Court stood confirmed.
Page 2 of 19
SLP(Crl.) No. 12926 of 2024
3. We heard Sh. Abhilash M.R learned counsel
appearing for the appellant. It was argued that A6 was
roped in as the main conspirator who had not joined the
frontal attack alleged by the prosecution on the
deceased and his family members. A5 was acquitted
and A6, whose role was identical to A5, was convicted,
erroneously. It is argued that PWs 1 to 3, the daughter-
in-law, son and wife of the deceased did not name A6 in
the initial statement given under Section 161 of the
2
Code of Criminal Procedure, 1973 and was included
only later in the statements given under Section 164
Cr.P.C. The reliance placed on PW7 is untenable since
he belongs to a rival political party and there were
cases pending between him and A6, clearly indicating
an intention to somehow inculpate A6.
4. Even if the attack based on a conspiracy, as alleged
by the prosecution is believed, none of the accused
carried any weapons into the house of the deceased.
The wooden logs which are alleged to have been used
by the accused were lying at the scene of occurrence,
2
The Cr.P.C.
Page 3 of 19
SLP(Crl.) No. 12926 of 2024
the house of the deceased. The learned counsel has
also placed before us a number of decisions to rubbish
the conspiracy theory, set up by the prosecution, which
was also not proved. There was only the interested
testimony of PW7 pointing to the conspiracy alleged
and there is total failure to establish a common intention
under Section 34 IPC. The High Court erred in entering
a conviction under Section 304 Part II IPC, since no
knowledge that the act is likely to cause death can be
attributed to A6.
5. We have anxiously considered the judgment of the
High Court, which is rather elaborate and deals
minutely with the evidence. On facts, the genesis; which
also has a bearing on the conspiracy alleged, is with the
incident that happened in the afternoon, on the crucial
day, in the house of the deceased. A6 along with others
came to the house of the deceased to sell coir mats
manufactured by Kudumbasree; a self-help group of
women, constituted in every Panchayat under the aegis
of the State through the local bodies. PW2 was first
approached who directed them to the deceased, his
Page 4 of 19
SLP(Crl.) No. 12926 of 2024
father, who refused to make a purchase, despite the
insistence of A6. Enraged A6 threw a mat at the
deceased and asked him to burn it if he does not want
it. The deceased then directed PW2, his son to raise a
query in the Ward Council Meeting as to whether the
purchase of coir mats from the Kudumbasree unit was
compulsory or not. Here we pause, to notice that A6 was
a Municipal Councillor and the Chairman of the
Municipal Standing Committee, and an influential
leader of the political party which ruled both the State
and Municipality of Cherthala. All the accused were
active members of the very same political party.
6.
In the evening, PW2 raised a query regarding the
coercive sale of coir mats in the Ward Council Meeting,
to which A6 reacted combatively. It was later, in the
night, that accused 1 to 4, as alleged by the prosecution,
in retaliation, along with A5 and A6 went to the house of
the deceased where accused 1 to 4 unleashed a frontal
attack on the inmates. A5, allegedly entered the house
only briefly, to kick the deceased and destroy the
window panes, while A6 stood outside exhorting the
Page 5 of 19
SLP(Crl.) No. 12926 of 2024
accused who entered the house to kill the inmates. The
attack unleashed resulted in the death of the deceased
and injuries to his son and daughter-in-law.
7.
As found by the Division Bench of the High Court
the incident that happened in the afternoon is spoken of
by PW2 and 3, the family of the deceased & PW4, a
neighbour who had been examined to speak on both
the incidents; that which happened in the afternoon and
at night. PW4 turned hostile and failed to identify the
accused who participated in the incident at night,
however, she spoke of A6’s presence in the house of the
deceased in the afternoon, when a wordy altercation
ensued. She also spoke of the incident at night when an
attack was unleashed, but refused to identify the
accused, which she said was out of fear and not the
influence of the accused. PW5 another neighbour of the
deceased who participated in the Ward Council
Meeting held on 29.11.2009 also deposed that there
were arguments between PW2 and A6, in the meeting
when PW2 raised a question of compulsory sale of coir
mats, when A6 again asked PW2 to burn the coir mat, if
Page 6 of 19
SLP(Crl.) No. 12926 of 2024
he does not want it. There is sufficient corroboration by
PW13 an official of the Cherthala Municipality, who
attended the Ward Council Meeting held on 29.11.2009.
PW13 deposed that a youngster raised a query with
respect to sale of coir mats, which was answered by A6.
PW13 did not speak of any heated argument between
PW2 and A6. However, the fact remains that there is
sufficient corroboration for the incident which
happened in the afternoon and in the evening at the
Ward Council Meeting, which led to the attack on the
family members of the deceased. The motive alleged,
hence stands established.
8.
According to the evidence of PW1 to 3, at around 7
P.M., accused 2 to 4 called out the name of PW2 from
outside his house. PW2 called them inside, when
accused 1 to 4 attacked him with wooden logs. PW1,
PW2's wife, who came to his rescue was also assaulted.
PW3 intervened, when the child of PW1 and PW2 was
attempted to be harmed, and took the child away from
A3 who caught hold of the child. The deceased who was
in the adjoining room came out, hearing the commotion
Page 7 of 19
SLP(Crl.) No. 12926 of 2024
and was beaten by A1 on his head using a wooden log,
which blow fell on the back of his head on the right
side. A1 again delivered two blows on the head of the
deceased with MO1 wooden log. Later, A2 also
delivered blows on the deceased with MO3 wooden log.
PW1 spoke of having seen A6 standing outside the
house and deposed that he exhorted the accused who
entered the house, to ‘kill them’ , meaning the inmates of
the house.
9. The evidence of PW1 to 3 stands corroborated by
the evidence of PW4 who came to the house of the
deceased, hearing the hue and cry. She identified the
first accused in a yellow t-shirt and did not identify the
others. As we noticed earlier, though PW4 was declared
hostile, she spoke of the incident that happened in the
house of the deceased in the afternoon and also spoke
of having come to the house of the deceased after the
incident and her first-hand knowledge of the
destruction caused in the house of the deceased. PW6,
another neighbour of the accused also corroborated the
evidence of PW1 to 3 and identified A1 & A2 who were
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standing outside the house, when he came, as also
accused A3 and A4 who were smashing the windows of
the house. On entering the house, he saw the deceased
vomiting and there were indications of a paralytic attack
on his face. PW2, standing beside him also had blood
on his body. PW6 accompanied the victims to the
hospital.
10. That the death was a homicide is clear from the
evidence of PW10 who spoke in accordance with Ex.P5,
Post Mortem Certificate. The cause of death was by
reason of the head injury which is shown as injury No.1
in Ex.P5. The doctor deposed that the injury numbers 1
to 7 found on the deceased could be caused by MOI
and MOIII wooden logs and were ante-mortem. Injury
No.8, according to the expert could be caused by
stamping or by kicking. The accused was admitted to
Medical College, Kottayam on 29.11.2009 with a severe
head injury and succumbed on 8.12.2009, despite
craniotomy and haematoma evacuation having been
done on the patient. The death hence was homicidal
and it occurred due to the attack unleashed at the house
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of the deceased, by the accused. In addition, is the
evidence of PW12, the doctor who examined PW1 and
PW2, the injured, at the Taluk Hospital on 29.11.2009,
providing further support to the prosecution version.
The injuries found on the body of PW1 & PW2 were
consistent with the narration of the attack on them.
PW12 also had noted the cause of injury as ‘ having been
beaten up by identifiable persons ’.
11. We are not, in the instant appeal, concerned with the
charges proved against the other accused nor even the
acquittal of A5 since the above appeal is only filed by
A6. We adjourned the matter at the initial stage, after
querying the State as to whether they intend to file any
appeal. We were told by the Standing Counsel that he
does not have any instructions and hence we
proceeded with the matter; which we make clear is only
with respect to the conviction of the appellant under
Section 304 Part II read with Section 120B IPC and the
other provisions, as noticed above and we do not deal
with the alteration of sentence from Section 302 to 304B
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SLP(Crl.) No. 12926 of 2024
Part II, since there is no appeal as of now from the State
or the injured victims.
12. The first contention of the appellant is the principle
of parity of acquittal of similarly placed co-accused. A5
had his house in the neighbourhood of the scene of
occurrence; in front of which the accused were found to
have held a meeting before the attack unleashed at the
house of the deceased. The High Court has found that
the presence of A5 was quite natural since he had his
house in the neighbourhood. Insofar as the acquittal of
A5, PW1 had not mentioned the name of fifth accused in
her statement recorded under Section 161, Cr. P.C. The
statement of PW1 and PW3 that they saw the fifth
accused kicking the deceased and he was also present
among the assailants who unleashed the attack inside
the house were put to them as an omission in their
statement recorded by the Police. However, with respect
to A6, the testimony of PW1 is that he stood outside the
house and exhorted the accused 1 to 4 who entered the
house to ‘ kill them’. The First Information Statement of
PW1 as noticed by the High Court, is of Kannan having
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SLP(Crl.) No. 12926 of 2024
exhorted to kill PW2 which was alleged to have been
changed in the witness box and the said exhortation
attributed to A6.
13.
While the Division Bench held that the evidence of
PW1 regarding the presence of A5 and A6 cannot be
believed, the Division Bench believed the testimony of
PW1 with respect to A1 to A4. The presence of A6
spoken of by PW1 was disbelieved by the High Court,
since even in the FIR she had not stated so. However,
this has to be considered along with the biased
investigation, highlighted by the High Court itself. A6
was an influential political leader of the ruling party
and his name was purposefully not included in the
array of accused. We will deal with this more
elaborately a little later. Be that as it may, the earlier
incidents that happened in the afternoon and the
evening which led to the attack at night stood
established. The presence of A6 in the vicinity of the
crime scene, prior to the crime, in the company of the
other accused, also stood established. The High Court
rightly relied on State of Karnataka v. K. Yarappa
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3
Reddy , to find that even when the probity of
investigation is suspect, the rest of the evidence must
be scrutinised meticulously to ensure that criminal
justice is not rendered a causality.
14. The evidence of PW7 who saw A1 to A6 standing in
front of the house of A5 just before the incident
happened, is the physical manifestation of the
conspiracy. The motive and presence of A6 at the scene
of crime, is thus established. The motive arises from the
incident which happened in the afternoon, where
ensued a wordy altercation by A6 with the deceased;
which was followed up by another, in the Ward Council
Meeting, on the evening of the same day, with PW2. We
cannot find the evidence against A5 and A6 to be
identical and the culpability of A6 to be roped in under
Section 120B is quite evident; his presence at the scene
of occurrence established by the ocular testimony,
which unlike A5, who had his house in the vicinity, could
not be explained by A6; clinching his culpability.
3
(1999) 8 SCC 715
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15. In this context we have to necessarily consider the
contention of the appellant that he was added later,
which raised a reasonable doubt as to his involvement
in the incident that occurred at night. Here we have to
notice that there was a conscious attempt to divert the
investigation and frustrate the prosecution, especially
against A6 who is attested to be an influential political
leader, by none other than one of the Investigating
Officers (I.O.), PW18. PW17 was the officer who
commenced the investigation, prepared Ex.P3 scene
mahazar and seized MOI and MOIII weapons along with
the other articles as also arrested the accused 1 to 4 on
30.11.2009. PW18 took over the investigation from
PW17 who deposed that a particular political party was
in power in the State as also the Municipality, at the time
of occurrence and the sixth accused was an influential
political leader and the Chairman of the Standing
Committee of the Municipality. PW18 took additional
statements of PW’s 1 to 3 in which also there was no
disclosure of presence of A6 at the crime scene. Later,
the investigation was taken over by PW19 on 19.12.2009
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SLP(Crl.) No. 12926 of 2024
who, at the request of PW’s 1 to 3 made an application
before the Chief Judicial Magistrate, Alappuzha to
record the statements of PW’s 1 to 3 under Section 164
of Cr.P.C. This was specifically on the complaint raised
by PW’s 1 to 3 that their statements were not recorded
properly and there was a conscious attempt to somehow
exonerate A6. The statements of PW’s 1 to 3 were
recorded under Section 164 of Cr.P.C. and PW20, the
Judicial Magistrate, who recorded the statement
deposed that PW1 disclosed to PW20 that the Police
had not truthfully recorded her statement. The
inconsistencies in the FIR, based on the first information
of PW1 and the statements recorded by PW17 and
PW18 are hence inconsequential. This also has to be
viewed in the context of PW21, who eventually filed the
charge sheet, having failed to include PW19, I.O. who
initiated steps to record Section 164 statements of PW1
to 3, as a witness. It was at the instance of the Court,
PW19 was examined in the trial.
16. One other contention taken up is regarding PW7
who is said to be a member of a rival political party. It
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SLP(Crl.) No. 12926 of 2024
has to be observed that PW7 accepted that he was a
member of that political party and that there was a case
registered against him at the instance of A6, which was
settled between them. The correctness of these
statements, according to the High Court, was never
challenged in cross-examination but for a bland
suggestion that there are a number of cases between
them. There is no substantiation of the same by the
accused. PW7, who admitted his alliance to the rival
political party and the case with A6, who was residing
near the crime scene, was a truthful witness, as found
by the High Court.
17.
There is also a contention raised that DW1's
evidence was not reckoned by the Trial Court and the
High Court. DW1 is a person who is said to have
attended the Ward Council Meeting in the evening of
29.11.2009. He specifically deposed that there was no
argument between A6 and PW2 in the Ward Council
Meeting. We have already found that a wordy duel
ensued between A6 and PW2 in the Meeting, spoken of
by PW2, corroborated by PW5, a neighbour and also by
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SLP(Crl.) No. 12926 of 2024
PW13, an official of the Cherthala Municipality. Later,
DW1, in his deposition also tries to wriggle out of the
situation with a statement that he was not listening and
hence he cannot surely say as to what happened in the
Meeting; a thoroughly unreliable witness.
4
18. As has been held in State of Tamil Nadu v. Nalini ,
by the very nature of the offence of conspiracy, being
hatched in secrecy, no evidence of the common
intention of the conspirators can be normally produced
before Court. The offence can be proved largely by
inferences from the acts committed or words spoken by
the conspirators in pursuance of a common intention.
That an altercation occurred between A6 and the
deceased in the afternoon and another wordy duel in
public, on the same evening, with PW2, the son of the
deceased has been established by the prosecution. The
reaction of A6 in the afternoon, to the refusal of the
deceased to purchase a coir mat and in the evening,
when the question of compulsory sale of coir mats was
raised by PW2, was abrasive and violent. On the same
4
(1999) 5 SCC 253
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SLP(Crl.) No. 12926 of 2024
day evening, A6 was found with the other accused near
the house of the deceased, a few minutes before the
crime occurred in the house of the deceased. The
accused had called out PW2 from the outside the house
when PW2, unsuspectingly invited them inside. The
accused belonged to a political party, whose leader was
A6. Accused 1 to 4 entered the house and unleashed a
frontal attack on the family members with wooden logs.
Construction work was going on in the house of the
deceased and there were wooden logs lying in the
premises. Even if it is found that the accused did not
come with deadly weapons, before entering the house
they picked up the wooden logs, within the eye-sight of
A6. They entered the house of PW2 on his invitation and
unleashed an attack without any provocation from the
inmates of the house. Obviously, in retaliation of the
incidents that happened earlier, on the same day A6
had seen the accused picking up the wooden logs and
entering the house and alsso had exhorted them from
outside the house. A6 definitely had the knowledge that
the attack perpetrated on the accused could lead to
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death and the attack was carried out under his watch-
full eyes. As rightly held by the High Court, though the
heightened intention to cause death cannot be
attributed in the incident, the knowledge that the attack,
as established in the trial, is likely to cause death can
definitely be pinned down on A6, at whose instance and
connivance as also active instigation, the attack was
carried out.
19. We find absolutely no reason to interfere with the
conviction and sentence of A6 and dismiss the Special
Leave Petition.
20. Pending applications, if any, shall stand disposed of.
………….……………………. J.
(SUDHANSHU DHULIA)
………….……………………. J.
(K. VINOD CHANDRAN)
NEW DELHI;
APRIL 16, 2025.
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