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

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

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