LexSOMON versus STATE OF KERALA
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[2008] 15 S.C.R. 123 ~- SOM ON A v. ST ATE OF KERALA (Criminal Appeal No. 1693 of 2008) OCTOBER 24, 2008 B [C.K. THAKKER AND D.K. JAIN, JJ.] Penal Code, 1860 - ss. 302 and 304 (Part I) - Six armed accused formed unlawful assembly with common object to kill deceased - Riot committed and injuries caused to deceased c resulting in his death - Previous enmity between parties - .., Conviction of accused no. 1 u/s 302 rlw s. 34 and others ul s. 147 and s. 148 respectively - High Court upheld conviction of accused no. 1 uls. 302 but acquittal of others extending them benefit of doubt - On appeal, held: None of the injuries D '!<. were inflicted on the vital part of the body, though its combined effect was sufficient in ordinary course of nature to cause death - There is no infirmity as to finding of guilt of accused no. 1 by courts below, thus, accused no. 1 not entitled to benefit of doubt - On facts, case of accused covered u/s. E 304 (Part I) - Thus, conviction altered to one u/s. 304 (Part I) and sentence reduced to the sentence already undergone. .. According to the prosecution case, accused persons ),- were on inimical terms with B. Accused no. 1-6 armed with deadly weapons formed themselves into an unlawful F assembly and committed riot with the common object to kill B. They caused injuries to B and PW-2. B died later. \· Prosecution examined the witnesses. On basis of the evidence of injured witnesses, hostile witnesses and independent witness, trial court held that B was killed in G ......... the incident which took place and accused nos. 1, 2, 4 and 6 shared common intention to commit murder of B. Trial court convicted and sentenced accused nos. 1, 2, 4 and 6 under s. 302 rlw s. 34 IPC. It also convicted accused 123 H 124 SUPREME COURT REPORTS [2008] 15 S.C.R. •'f' A nos. 1-4 under s. 147 and accused nos. 5-6 under s. 148 IPC. High Court acquitted accused nos~ 2-6 of all the ·charges. However, it upheld the conviction of accused no. 1 under s. 302. Hence the present appeal. B Partly allowing the appeal, the Court HELD: 1.1. While exercising power under Article 136 ..:;- of the Constitution, this Court does not re-appreciate the evidence as a regular Court of Appeal. A finding has been recorded by the trial court and confirmed by the High c Court on evidence as to the guilt of the appellant. There is no infirmity in the said finding. This Court was justified ..::. by issuing notice as to the 'nature of offence'. Therefore, the submission that the appellant is entitled to benefit of doubt and be set at liberty by extending benefit which D had been granted to other accused is rejected. [Paras 13 ,~ and 14] [128-F-H; 129-A] . 1.2. As far as the 'nature of offence' is concerned, the submission of the counsel for the appellant is well- E founded. PW 8-Deputy Police Surgeon stated that combined effect of injury Nos. 1, 3, 4 and 5 was sufficient in the ordinary course of nature to cause death. Looking to the injuries sustained by the deceased which were not on head, face or vital part of the body, but on arms, legs ,. ,- etc. coupled with the fact that in all, there were six ·71- ,_ F accused and though all of them were convicted by the trial court, the High Court extended benefit of doubt to t: accused Nos. 2-6, the counsel is right in submitting that on the facts and in the circumstances of the case, it cannot be said that the appellant had committed an G offence punishable under section 302 IPC. Even the trial court did not convict the appellant substantively for an r- offence punishable under section 302 IPC. He was convicted with other accused for an offence punishable under section 302 read with section 34, IPC. On the facts H of the case and injuries sustained by the deceased, the SOMON v. STATE OF KERALA 125 .+' case is covered by section 304 Part I IPC. In view of the A above fact's, the ends of justice would be met if the conviction of tti'e appellant is conve·rted from an offence punishable under Secti<ifi 302, IPC to ari offence punishable under Section 304 Part I, IPC. (Paras 15, 17, 18 arid 23j (1'29-A-B; 130:.B-E; 131-F] B ·y- Kapur Singh v. State of Pepsu, AIR (1956) SC 654, referred to. 2. From the record it appears that initially the appellant had remained in jail for more than a month. After c his conviction, again he was taken to custody on January 16, 2003 and is in jail all throughout. Thus, the app
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