IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 281  OF 2010

(@ SPECIAL LEAVE PETITION (Crl.) NO.1412 OF 2009)  

Raju & Anr.  .. Appellants Vs.

State of Haryana  .. Respondent

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

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

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.   

3. Of the three accused, Accused Nos.1 and 2, Raju  

and Mangli, have challenged their conviction under  

Section 302 read with Section 34 IPC.   

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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  

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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.   

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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.  

6. Mr. Malhotra submitted that from the aforesaid  

evidence, it would be evident that there was no  

prior  meeting  of  minds  between  the  Appellants  

herein and Anil alias Balli and Sucha Singh, to  

kill Ishwar.   Mr. Malhotra submitted that there is  

nothing on record to indicate that the Appellants  

herein had any knowledge that Anil alias Balli and  

Sucha Singh were carrying knives for commission of  

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the murder. He urged that the only intention in  

chasing the deceased and holding him was to teach  

him  a  lesson  following  the  altercation  that  had  

taken place between the deceased and the accused  

persons  just  prior  to  the  incident,  where  the  

deceased was stabbed.  Mr. Malhotra submitted that  

the altercation as well as the subsequent incident  

was the result of an earlier incident which had  

taken place on 31st March, 1994, in connection with  

the ‘Bana’ ceremony being conducted in connection  

with the marriage of the son of one Parwati.  At  

the  said  ceremony,  the  women  folk  were  singing  

songs near the Government Livestock Farm, Hissar,  

where deceased Ishwar came in a drunken condition  

and misbehaved with them.  Mr. Malhotra submitted  

that  the  entire  incident  was  triggered  off  on  

account of the said incident, where the deceased  

misbehaved  with  the  ladies  who  were  involved  in  

marriage festivities which ultimately led to the  

altercation  and  stabbing  of  the  deceased  by  the  

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Accused Nos.3 and 4.  Mr. Malhotra submitted that  

there was no prior motive or common intention to  

commit  the  murder  of  the  deceased  and  the  

Appellants  had, therefore, been wrongly roped in  

in respect of an offence under Section 302 with the  

aid of Section 34 IPC.   

7. As  far  as  the  Appellant  No.1,  Raju,  is  

concerned, Mr. Malhotra submitted that on the date  

of the incident (31.3.1994), he was a juvenile and  

as per his mark-sheet, wherein his date of birth  

was recorded as 1977, he was less than 17 years of  

age on the date of the incident.  Mr. Malhotra  

submitted that having regard to the recent decision  

of this Court in the case of Hari Ram vs. State of  

Rajasthan  &  Anr. [(2009)  6  SCALE  695],  the  

Appellant No.1 must be held to have been a minor on  

the date of the incident and the provisions of the  

Juvenile Justice (Care and Protection of Children)  

Act, 2000, would apply in his case.  Mr. Malhotra,  

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therefore, contended that the Appellant No.1 would  

have to be dealt with under the provisions of the  

said  Act  in  keeping  with  the  decision  in  the  

aforesaid case.

8. Appearing for the State of Haryana, Mr. Kamal  

Mohan  Gupta,  learned  counsel,  did  not  seriously  

dispute the submissions made by Mr. Malhotra as far  

as the Appellant No.1, Raju, was concerned having  

satisfied himself regarding the juvenility of the  

said Appellant upon due inquiry.  However, as far  

as the second appellant, Mangli, is concerned, Mr.  

Gupta submitted that he had been rightly convicted  

under Section 302 with the aid of Section 34 IPC.  

Mr. Gupta submitted that the role attributed to the  

Appellant  No.2  was  not  as  innocent  as  had  been  

attempted to be made out by Mr. Malhotra.  On the  

other hand, there was a background of the incident  

involving the misbehaviour of the said Appellant  

with the women folk at the marriage ceremony of the  

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son of Parwati which triggered the incident.  It  

was  submitted  that  the  subsequent  incident  

culminating in Ishwar’s death was not an isolated  

incident but a fall out of the earlier incident.  

He also urged that the common motive to kill the  

victim would also be evident by the fact that after  

Ishwar  was  initially  assaulted  and  tried  to  run  

away,  he  was  chased  by  all  the  four  accused,  

including the Appellant No.2, who along with the  

Appellant No.1, held him while Anil @ Balli caused  

stab  injuries  with  the  knife,  which  ultimately  

resulted in his death.  Mr. Gupta submitted that  

the  conviction  of  the  Appellant  No.2  did  not  

warrant any interference and the appeal as far as  

he was concerned, was liable to be dismissed.

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  

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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  

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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  

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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  

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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.

11. As far as the Appellant No.1 is concerned, let  

his  case  be  referred  to  the  concerned  Juvenile  

Justice  Board  in  terms  of  Section  20  of  the  

Juvenile Justice (Care and Protection of Children)  

Act, 2000, to be dealt with under the provisions of  

the  said  Act  in  keeping  with  the  provision  of  

Section 15 thereof and having particular regard to  

the period of detention already undergone by him  

during the course of the investigation and trial.  

The  Registry  is  directed to take immediate steps

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for transmission of the records to the concerned  

Juvenile  Justice  Board,  as  far  as  the  Appellant  

No.1 is concerned.  

12. The Appeal is disposed of accordingly.

________________J. (ALTAMAS KABIR)

________________J. (SWATANTER KUMAR)

New Delhi Dated:: 10.02.2010                  

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