A Two Judge Bench of the Supreme Court comprising of Justice Ajay Rastogi and Justice Vikram Nath has in a recent case of Ajmal vs State of Kerala Criminal Appeal No. 1838 of 2019 along with other connected matters passed a Judgment dated 12-07-2022 and reiterated the ingredients of the offence of culpable homicide not amounting to murder under Section 304 of the Indian Penal Code 1860 (IPC).
In this case, a verbal altercation took place between one, George Thomas (Deceased) and the Accused No. 1, Biju, Accused No. 2, Ashique Salam and Accused No. 3, Ajmal in January 2018 near Thidanadu Church, Kerala regarding their bikes not giving way to the Deceased’s car. A little later, when the Deceased along with his friends were around Veyilukanampara Junction in Thidanadu Kara, one, Sabeer, Accused No. 9 was found waiting by the road side, when the other Accused persons joined him. All the Accused persons formed an unlawful assembly and with a common object wrongfully restrained the Deceased and his friends and forced them to alight from their car. Once they were out of their car, the Accused attacked the Deceased and his friends with a stick and a brick, thereby causing injuries on his neck, head and other parts of his body. As soon as the public started gathering, the Accused escaped from the place of occurrence of offence. When the Deceased was being taken to the hospital by his friends, the Accused hurled stones at their car, thereby causing damage to the wind screen and other glasses. The Deceased was then taken to the hospital and thereafter shifted to various other hospitals owing to his deteriorating condition and then he finally succumbed to his injuries at Medical Trust Hospital, Ernakulam the following day.
One of the friends (PW-1) of the Deceased lodged a complaint with the Police, which was then registered as an FIR. Upon completion of investigation, the Police filed a report under Section 173 (2) of the Code of Criminal Procedure 1973 (CrPC) (Report of police officer on completion of investigation) before the Magistrate, who committed the case to the Sessions Court for trial.
The Trial Court framed charges against the Accused under Sections 143 (Punishment for unlawful assembly), 147 (Punishment for rioting), 148 (Rioting, armed with deadly weapon), 149 (Every member of unlawful assembly guilty of offence committed in prosecution of common object), 302 (Punishment for murder), 323 (Punishment for voluntarily causing hurt), 324 (Voluntarily causing hurt by dangerous weapons or means), 341 (Punishment for wrongful restraint) and 427 (Mischief causing damage to the amount of fifty rupees) of IPC and conducted the trial. The Trial Court convicted Accused No. 1, 2, 3, 6, 8 and 9 for the said offences.
Aggrieved, the Accused filed an Appeal before the High Court of Kerala in Criminal Appeal No. 87 of 2014 filed by Accused No. 6 and 8, Criminal Appeal No. 132 of 2014 filed by Accused No. 9, Criminal Appeal No. 564 of 2014 filed by Accused No. 1, Criminal Appeal No. 238 of 2014 filed by Accused No.2 and Criminal Appeal No. 91 of 2014 filed by Accused No. 3. The High Court acquitted the Accused No. 6, 8 and 9 and convicted the Accused No. 1, 2 and 3.
Aggrieved, the Accused No. 1, 2 and 3 filed an Appeal before the Apex Court. The Supreme Court passed a Judgment dated 12-07-2022 and made the following observations in this case:
1) That the Prosecution has established that the death of the Deceased was homicidal and his death was caused due to the injuries caused by Accused No. 1, 2 and 3; that the other friends including PW-1 had suffered grievous hurt on that day; that FIR was promptly lodged; that the medical evidence fully corroborates the eye-witness testimonies and, hence, the occurrence of the offence has been established.
2) That Section 302 IPC provides that any person who commits the offence of murder shall be punished with death or life imprisonment and shall also be liable to fine. Whereas, Section 304 IPC provides that a person would be punished for culpable homicide not amounting to murder (a) if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or (b) if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or done to cause such bodily injury as is likely to cause death.
3) That murder is the greatest form/degree of culpable homicide and is punishable under Section 302 IPC. Whereas, certain forms of homicide of lower degree are punishable under Section 304 IPC as culpable homicide not amounting to murder such as death caused due to petty altercations, utterance of rude words, etc where usual motives like revenge, greed, jealousy or suspicion may be absent. The difference lies in the intention to cause death and the gravity or degree of offence committed.
4) That intention to cause death can be derived from the any or combination of certain circumstances such as (a) nature of the weapon used, (b) whether the weapon was carried to the place of occurrence, (c) the amount of force applied in causing the injury, (d) whether the blow is aimed at any vital part of the body, (e) whether the accused has assaulted in a cruel and unusual manner, (f) whether the accused dealt single blow or several blows, (g) whether there was any prior enmity, (h) whether there was any grave and sudden provocation, etc.
5) That in this case, after the verbal altercation between the Deceased and the Accused persons, they went different ways, but when the Accused returned, they stopped the Deceased’s car and wrongfully restrained him and his friends and hit him with a stick and a brick in a single blow, as a result of which, he fell on the ground.
Thus, based on the aforesaid observations, the Apex Court held that there was no pre-meditation of minds to commit murder; the Accused were not armed when they stopped the Deceased’s car, rather, they picked up the stick and brick from the road side during the altercation to hit the Deceased; the Accused No. 1 and 2 each hit the Deceased only once. As a result, the Supreme Court acquitted the Accused for murder under Section 302 IPC and convicted them for committing culpable homicide not amounting to murder under Section 304 IPC, for voluntarily causing hurt under Section 323 and 324 IPC, for wrongful restrain under Section 341 IPC, for causing mischief under Section 427 IPC read with Section 34 IPC for doing such acts with common intention.
The Indian Lawyer