SUPREME COURT OF INDIA

Before:- R.P. Sethi and Doraiswamy Raju, JJ.

Criminal Appeal No. 747 of 1995. D/d. 1.5.2002.

Mohanan Nair @ Mohanan - Appellant

Versus

State of Kerala - Respondent

Indian Penal Code, 1860, Sections 302 and 323 - Murder - Appellant/accused convicted for murder on testamony eye-witnesses - Identification of appellant both at TIP as well as at trial - Plea of appellant that offence was committed without any premeditation in a sudden fight not acceptable - In the present case, deceased is not shown to have been involved in any sudden fight or quarrel - He was innocent and stabbed by appellant - Hence conviction under Section 302 held, proper.

[Paras 4, 5 and 6]

ORDER

The appellant was tried with three others for the murder of one Rajan and on proof the charge they were convicted under section 302 of the Indian Penal Code and sentenced to imprisonment for life. He was also convicted and sentenced under Section 323 of Indian Penal Code, alongwith other accused persons. In the appeal preferred by the convicted persons, the conviction and sentence and of the other accused persons except the appellant for offence under Section 302 read with section 34 of the Indian Penal Code was set aside. However, their conviction and sentence under , section 323 Indian Penal Code was upheld. The appeal filed by the appellant was dismissed and his conviction under section 302 Indian Penal Code and the sentence awarded for the same was upheld by the High Court vide judgment impugned in this appeal.

2. The conviction of the appellant is based upon the oral testimony of PWs. 1, 2, 3 and 5, who have been believed to be eyewitnesses. PW 2 was also injured during the offence. We are not inclined to disbelieve the statements of the aforesaid witnesses who have rightly been believed by the courts below, so far as the involvement of the appellant in the commission of the crime is concerned.

3. The learned counsel appearing for the appellant has vehemently argued that as the appellant was not identified during the identification parade, the trial court was not justified in convicting and sentencing him.

4. A perusal of the statement of PW 1 shows that the appellant was identified by him and PW5, both at the identification parade as well as at the trial. The identification of the accused in the court by itself was sufficient for the purpose of ascertaining his guilt or innocence. We are satisfied with the findings of the courts below regarding the identification of the appellant both at the identification parade as well as in the trial court.

5. It has been argued in the alternative that even if the occurrence is proved to have taken place and the appellant is involved in the crime, no case is made out for his conviction under Section 302 of the Indian Penal Code it is submitted that as the occurance was without premeditation and was a result of the sudden fight, the appellant can at the most be held guilty of capable homicide not amounting to murder. The argument though attractive on the face of it, yet when considered in depth, is without any substance. To attract the applicability of exception 4 to section 300 of Indian Penal Code, the accused has to show not only that the offence was committed without any premeditation in a sudden fight but also that the said occurance had taken place in the heat of passions and without the offender having taken undue advantage.

6. In the instant case, the deceased is not shown to have been involved in any sudden fought or quarrel. He was innocent and stabbed by the appellant with a knife for no fault of the deceased. The case of the appellant is not covered by exception 4 to section 300 of the Indian Penal Code Both the courts below have rightly found that the appellant had committed the offence with the intention of causing the death of the deceased as is evident from the injuries inflicted upon the person of Rajan. No ground is made out to interfere with the finding holding the appellant guilty of the offence of murder punishable under section 302 of the Indian Penal Code Appeal is accordingly dismissed by upholding the conviction and sentence awarded to the appellant.

Appeal dismissed.