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2009 Supreme(SC) 1266
2009(5) Supreme 482
SUPREME COURT OF INDIA
S.B. Sinha and Deepak Verma, JJ.
Jai Kumar — Appellant
versus
State of Haryana — Respondent
Criminal Appeal No. 1285 of 2009
(Arising out of SLP (Crl.) No. 8930 of 2008)
Decided on : 21-07-2009
For the Appellant :D.P. Singh, Sanjay Jain, Advocates.
For the Respondent(s):Manjit Singh, AAG, Kamal Mohan Gupta, Gaurav T. (for T.V. George), Advocates.
Headnote:Indian Penal Code, 1860 – Sections 392, 397 and 302/34 – Conviction of appellant along with co accused for causing death of deceased by throwing him in a canal and for robbing his money – Appeals thereagainst – Dismissed by High Court – Only S filed appeal before Apex Court and his conviction under Section 302 read with Section 34 of IPC was converted into under Section 304, Part 2 thereof – Appellant claimed parity with his co-accused S for obtaining the benefit of a judgment of this Court in Subhash v.State of Haryana – Overt acts on the part of the appellant, however, together with J 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 was not in dispute – He, therefore, upon receiving injuries, unlike PW8 could not have swum to the shore to save his life – Hence held that case of appellant was not in pari materia with that of S and he had rightly been convicted under Section 302 of IPC – Appeal dismissed. (Paras 7 to 9)
Facts of the Case :
Appellant along with co accused was convicted herein in the instant case for causing death of deceased by throwing him in a canal and for robbing his money. Appeals thereagainst were Dismissed by High Court. Only S one of coaccused filed appeal before Apex Court and his his conviction under Section 302 read with Section 34 of IPC was converted into under Section 304, Part 2 thereof. Appellant in present appeal has claimed parity with his co-accused S for obtaining the benefit of a judgment of this Court in Subhash v.State of Haryana.
Findings of the Court :
Overt acts on the part of the appellant, however, together with J 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 was not in dispute. He, therefore, upon receiving injuries, unlike PW8 could not have swum to the shore to save his life. Hence held that case of appellant was not in pari materia with that of S and he had rightly been convicted under Section 302 of IPC.
Result : Appeal dismissed.
JUDGMENT
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 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 :
“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 aft
