Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1285 OF 2009
(Arising out of SLP (Crl.) No.8930 of 2008)
Jai Kumar … Appellant
Versus
State of Haryana … Respondent
J U D G M E N T
S.B. Sinha, J.
1. Leave granted.
2. The appellant is before us claiming parity with his co-accused
Subhash for obtaining the benefit of a judgment of this Court in Subhash v.
State of Haryana since reported in [(2007) 12 SCC 63].
3. At the outset, we would like to place on record that this appeal is
barred by 896 days. Ordinarily, we would not have condoned the delay but
we had issued notice both on SLP as also on the application for condonation
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of delay only on the premise that the appellant had raised a contention before
this Court that he and his co-accused Subhash are similarly situated.
4. Appellant was charged for commission of offences punishable under
Sections 392, 397 and 302/34 of the Indian Penal Code. The occurrence
took place on 9.10.1991. A First Information Report was lodged by one
Mane Ram (PW8) who alleged that he along with the deceased Raghbir
Singh had gone to village Kaillana in a tractor to bring ‘barma’ (an
instrument for drawing water) from one Nandlal. After collecting the same,
they left for their village at about 12 noon. They reached a village
commonly known as ‘Pugthala’ and purchased liquor from a liquor vendor.
The deceased separately purchased a nip of liquor and carried the same with
him. When they reached near village Chamrara, the appellant, son of Basu
Sardar, Jai Kumar, Subhash and Joginder Singh met them. Son of Basu
Sardar took away the nip of liquor from the deceased and consumed it. All
of them again consumed some illicit liquor. They came back at the place
where they had met Mane Ram and Raghbir Singh.
For some reasons or the other, an altercation took place between son
of Basu Sardar, Subhash and Jai Kumar. Son of Basu Sardar caused an
injury on the head of Subhash and fled away. Subhash was being taken to
village Pugthala for his treatment. Accused Joginder Singh drove the tractor
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towards village Bajana along the bank of a canal. They reached village
Kasandi and near the bridge of the canal, Joginder Singh stopped his tractor
and started robbing money from the pocket of the deceased Raghbir Singh.
When PW8, Mane Ram and Subhash intervened, Joginder Singh caught hold
of Mane Ram and threw him in the canal. Appellant and Joginder Singh
caught hold of Raghbir Singh and also threw him in the canal. The deceased
tried to save himself by catching hold of the grass grown on the bank of the
canal. Appellant and the said Jagmohan Singh kicked him on his face and
he was again thrown in the water. He could not come out. Mane Ram,
however, knew swimming and he came out of the canal at some distance.
He after coming out, searched for the deceased and the tractor. He could
neither find the deceased nor the tractor. Mane Ram and Jai Singh went to
village Mandi at about midnight and informed Amar Singh (PW6), father of
the deceased. The First Information Report was lodged thereafter.
5. All the accused including Subhash and the Appellant were convicted
for commission of offences under Sections 392, 397 and 302 read with
Section 34 of the Indian Penal Code. Appeals filed before the High Court
were dismissed. Subhash alone approached this Court. Contention raised
on his behalf that he was falsely implicated was not accepted. The
circumstances which were placed on record on the basis of the evidences of
the witnesses were stated, thus :
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“12. The evidence and material available on record
further reveal circumstances to prove the guilt of
the appellant: ( 1 ) The first circumstance is the
recovery of the dead body of Raghbir Singh (the
deceased) from the place of occurrence. ( 2 ) Sub-
Inspector Man Singh (PW 11) recovered Tractor
No. HR 06 8501 from the possession of the
accused persons which was the same tractor
robbed by the accused. ( 3 ) The third circumstance
is recovery of “barma” by Sub-Inspector Man
Singh (PW 11) from the possession of Joginder
Singh (the co-accused) in pursuance of his
disclosure statement.”
6. The other contention that Mane Ram (PW8) lodged the First
Information Report after a great delay and, thus, a serious doubt is cast on
the case set up by the prosecution was also negatived. While, however,
considering the involvement of Subhash, vis-à-vis, the Prosecution case, it
was held :
“14. Be that as it may, it is not the case of the
appellant that after occurrence of the incident some
deliberations took place in order to falsely
implicate the appellant in the case. No suggestion
of any enmity between the appellant and PW 8 has
been made. There is no reason to disbelieve the
sequence of events narrated by PW 8. In such view
of the matter mere delay in lodging the first
information report, in the facts and circumstances
of the case cannot be held to be fatal to the
prosecution case.
15. For all the aforesaid reasons we hold that the
prosecution has been able to establish the guilt of
the appellant beyond all reasonable doubt for
conviction under Section 392 read with Section
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397 IPC for having robbed money and tractor. The
sentence of rigorous imprisonment for a period of
7 years for each of the offence under Section 392
read with Section 397 IPC is accordingly upheld.
16. The question that falls for our consideration is
whether the facts and circumstances and the
evidence available on record justify the conviction
of the appellant under Section 302 read with
Section 34 IPC for having caused death of Raghbir
(the deceased). The evidence available on record
does not suggest that there has been any intention
of causing the death of Raghbir (the deceased).
The case falls under Part II of Section 304 IPC.
The appellant committed the offence of culpable
homicide not amounting to murder. The appellant
is accordingly convicted under Part II of Section
304 IPC and sentenced to undergo rigorous
imprisonment for 7 years. The sentences to run
concurrently.”
7. It is true that this Court in Subhash (supra) opined that no case has
been made out for his conviction under Section 302 read with Section 34 of
the Indian Penal Code and, thus, the conviction was converted into under
Section 304, Part 2 thereof.
8. Overt acts on the part of the appellant, however, together with
Jagmohan Singh were totally different. The deceased even after being
thrown in the canal tried to save himself desperately. He wanted to come
out of the canal by catching the grass. He was kicked on the face and again
thrown in the canal. The fact that he was in an inebriated condition is not in
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dispute. He, therefore, upon receiving injuries, unlike Mane Ram (PW8)
could not have swum to the shore to save his life.
9. We, therefore, are of the opinion that the case of the appellant is not in
pari materia with that of Subhash. He has rightly been convicted under
Section 302 of the Indian Penal Code. There is no merit in the appeal. It is
dismissed accordingly.
……………………….J.
[S.B. Sinha]
`
……………………..…J.
[Deepak Verma]
New Delhi;
July 21, 2009