LexAJMAL versus THE STATE OF KERALA
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A B C D E F G H 503 [2022] 14 S.C.R. 503 503 AJMAL v. THE STATE OF KERALA (Criminal Appeal No. 1838 of 2019) JULY 12, 2022 [AJAY RASTOGI AND VIKRAM NATH, JJ.] Penal Code, 1860: ss.34, 149, 302, 304 Part II– Culpable homicide not amounting to murder – Deceased along with other friends were stopped by ten accused persons – Verbal altercation took place – Deceased was beaten by accused no. 1 and 2 and as a result, deceased fell on the ground – Accused no. 3 attacked the others with stick and caused them simple and grievous hurt – Charges framed u/ss.143, 147, 148, 341, 323, 324, 427 and 302 r/w s.149 – Trial Court acquitted accused nos.4, 5, 7 and 10 – High Court acquitted three other accused namely accused nos.6, 8 and 9 of all the charges – Conviction of appellants u/ss. 143, 147, 148 r/w s.149 was set aside, however, their conviction and sentence under ss.341, 323, 324, 427 and 302 r/w s.34 as awarded by trial court was confirmed by the High Court – Hence instant appeal – Held: The present case falls into the category of a culpable homicide not amounting to murder falling u/s.304 Part-II for the reasons that there was no pre-meditation of mind to commit murder; all the accused were admittedly not armed when they stopped the vehicle of deceased; it was during the verbal altercation at that stage that the three accused picked up the weapon of assault; the single blow was given to the deceased by accused nos.1 and 2 and the case set up for exhortation to kill the deceased was not found to be proved – Appellants would be entitled for acquittal u/s. 302 but would be liable to be convicted under s.304 Part-II – Rest of the conviction as upheld by the High Court and the sentence for the charges u/ss. 341, 323, 324 and 427 r/w s. 34 IPC is maintained. Partly allowing the appeals, the Court HELD: 1.The present case falls into the category of a culpable homicide not amounting to murder falling under section 304 Part-II IPC for the following reasons: (i) There was no pre- meditation of mind to commit murder,(ii) All the accused were A B C D E F G H 504 SUPREME COURT REPORTS [2022] 14 S.C.R. 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 casuarinas tree and a brick from the road side.(iv) Single blow was given to the deceased by the accused nos.1 and 2,(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. For all these reasons, the appellants would be entitled for acquittal under section 302 IPC but would be liable to be convicted under section 304 Part-II 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. As regards the sentence, all the three appellants are in jail and have undergone several years of incarceration. Accordingly the sentence is awarded for the period already undergone by all the three appellants. [Paras 21, 23 and 24][517-D-H; 518-C-E] Gulab vs. State of U.P. 2021 (12) JT 134 – held inapplicable. Mohd. Rafiq vs. State of M.P. (2021) 10 SCC 706 – relied on. Case law reference (2021) 10 SCC 706 relied on Para 17 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1838 of 2019. From the Judgment and Order dated 30.05.2019 of the High Court of Kerala at Ernakulam in Crl. A. No.91 of 2014. With Criminal Appeal Nos. 1839 and 1840 of 2019. A B C D E F G H 505 V.K. Shukla, N. Hariharan, Sr. Advs., Harikumar V., Anupam Mishra, Jenis V. Francis, P. V. Dinesh, Ashwini Kumar Singh, Bineesh K., Shinoj K. Narayanan, K. Rajeev, Advs. for the Appellant. Harshad V. Hameed, Dileep Poolakkot, Mrs. Arshly Harshad, Rohith R. Kartha, Advs. for the Respondent. The Judgment of the Court was delivered by VIKRAM NATH, J. 1. The present set of three appeals filed by accused-appellants namely, Biju (accused no.1), Ashique Salam (accused no.2) and Ajmal (accused no.3) assail the correctness of the judgment and order dated 30th May, 2019 passe
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