Raju & Anr vs State Of Haryana

2. The Appellants herein, Raju and Mangli, along with Anil alias Balli and Sucha Singh, were sent up for trial for allegedly having committed an offence punishable under Section 302 read with Section 34 Indian Penal Code. Accused Sucha Singh was found 2 to be a juvenile and his case was separated for separate trial under the Juvenile Justice Act, 1986. The Appellants herein were convicted under Section 302 read with Section 34 IPC and were sentenced to imprisonment for life and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for a further period of three years. Anil alias Balli was convicted under Section 302 and was sentenced to imprisonment for life and to pay a fine of Rs.5,000/-, in default to undergo further rigorous imprisonment for three years. He was also convicted under Section 25 of the Arms Act and was sentenced to undergo rigorous imprisonment for one year. The sentences, as far as Anil alias Balli is concerned, were directed to run concurrently.

4. Appearing on their behalf, Mr. Rishi Malhotra, learned Advocate, submitted that the role attributed to the Appellants in the alleged incident did not attract the provisions of Section 302 Indian Penal Code, hereinafter referred to as "IPC", since there is nothing on record to either prove or indicate that they had any common intention to commit the murder. Mr. Malhtora submitted that the allegation against the accused persons is that the deceased, Ishwar, the brother of the complainant, Chandu Lal (PW.5), was returning to his house on 31st March, 1994, at about 10.30 p.m. after seeing a motion picture. When he reached near the gate of Government Livestock Farm, Hissar, the Appellants herein, along with Anil alias Balli and Sucha Singh, attacked him with fists and blows. In order to save himself, Ishwar started running towards his house, but he was chased and surrounded by the accused persons near the house of one Om Prakash. According to the 4 complainant, he was present near the house of Om Prakash when the occurrence took place. He has stated that he witnessed the incident as indicated hereinabove and that at the time of the incident Anil alias Balli and Sucha Singh were armed with knives while the Appellants herein were empty- handed. In the First Information Report lodged by him, he has stated that after chasing and catching Ishwar, the Appellants herein, Raju and Mangli caught hold of Ishwar while Anil alias Balli inflicted a knife blow on the left anterior side of the victim's chest. Ishwar fell down on the ground and then accused Sucha Singh inflicted another knife blow on the right posterior side of his waist. On an alarm being raised by Chandu Lal, the accused persons ran away from the spot. An attempt was made to save Ishwar by taking him to hospital, but he died on the way.

5. Thereafter, the body of the victim was sent for post-mortem examination which was conducted by Dr. (Mrs.) K.K. Nawal, Senior Medical Officer, General Hospital, Hissar (PW.8) along with Dr. Pawan Jain, on 1st April, 1994, at 9.30 A.M. The post-mortem examination revealed the injuries as mentioned by PW.8 and in the opinion of the doctor, the cause of death was shock and haemorrhage, as a result of the multiple injuries, which were ante-mortem in nature and sufficient to cause death in the due course of time.

9. We have carefully considered the submissions made on behalf of the respective parties and the evidence adduced on behalf of the prosecution and have arrived at the conclusion that the conviction 1 of both the Appellants under Section 302 IPC with the aid of Section 34 is not warranted. As has been pointed out, the ultimate assault on Ishwar causing his death was the culmination of an incident which had occurred earlier during the marriage ceremony of the son of Parwati where the women folk, who were participating in the festivities, were teased by the deceased in an inebriated state. The resultant fall-out was the immediate response to the said incident with the intention of preserving the honour and dignity of the said women. It is on account of the said incident that subsequently the accused persons assaulted Ishwar and when he tried to run away, they chased him and on being caught, he was fatally injured by Anil @ Balli and Sucha Singh with knives. Although, it has been urged that the Appellants herein had knowledge that both Anil and Sucha Singh were carrying knives, the same is not borne out from the evidence and their role in the 1 incident in chasing the victim and, thereafter, holding him, was more likely to teach him a lesson as was sought to be projected as his defence. In the absence of any common intention, the conviction of the Appellants under Section 302 with the aid of Section 34 cannot be sustained. It is no doubt true that the evidence of PW.5 the complainant and PW.7 another eye-witness was corroborated by the injuries on the body of the victim, but that by itself would not establish common intention as far as the appellants in the present appeal are concerned. The learned counsel appearing for the appellant has placed strong reliance upon the judgment of this Court in the case of V. Sreedharan vs. State of Kerala reported in 1992 Supp (3) SCC 21, where the Court on the facts of the case took the view that the incident arising out of a quarrel at home and ending on the road was a continuous sequence, injury being a result of provocation and that prosecution under Section 304 Part I and not 1 Section 302 IPC, was attracted. Even in that case the present deceased had kicked the food on an auspicious day giving provocation and after the deceased ran for some time, the fatal injuries were caused on his person. Somewhat similar are the facts here, as the cause of conflict arose from the conduct of the deceased in the marriage party which ultimately as a sequence of events resulted in fatal injuries on the person of the deceased. The role attributed to them would, in our view, attract the provisions of Section 304 Part I IPC and not Section 302 read with Section 34 IPC. The appeal as far as the appellants' conviction under Section 302 read with Section 34 IPC must, therefore, succeed and their conviction must be altered to one under Section 304 Part I read with Section 34 IPC.

10. The appeal is, therefore, allowed to the extent that the conviction of both the Appellants under Section 302 read with Section 34 IPC is set aside 1 and they are convicted instead under Section 304 Part I read with Section 34 IPC. The Appellant No.2 is sentenced to two years' rigorous imprisonment and fine of Rs.500/-. In default of payment of such fine, the Appellant No.2 shall undergo rigorous imprisonment for a further period of 15 days. The Appellant No.2 shall be entitled to set off in respect of the period of imprisonment already undergone in terms of Section 428 Cr.P.C.

12. The Appeal is disposed of accordingly.

________________J.

(ALTAMAS KABIR) ________________J.

(SWATANTER KUMAR) New Delhi Dated:: 10.02.2010