JAI KUMARversusSTATE OF HARYANA

                       [2009] 10 S.C.R. 1157


                              JAi KUMAR                         A
                                    V.
                       STATE OF HARYANA
                (Criminal Appeal No.1285 of 2009)
                            JULY 21, 2009
                                                                B
           [S.B. SINHA AND DEEPAK VERMA, JJ.]

      PENAL CODE, 1860:

    s. 302 - Accused throwing the victim, who was in an         C
inebriated condition, into canal - Victim trying to come out,
but accused kicked him and again threw him into canal -
Death of victim - HELD: Accused was rightly convicted uls 302
- His case was not identical to the act of other accused who
was convicted uls 304 (part - II).                              o
     The appellant and three others were convicted and
sentenced by the trial Court ulss. 392, 397 and 302134 IPC.
The appeals filed by the accused were dismissed by the
High Court. One of the accused, namely, 'S' filed appeal
before the Supreme Court contending that he was falsely         E
implicated in the case. However, the Court did not accept
his plea. His conviction under Section 392 r/w s.397 was
upheld. The Court found that his conviction uls.302 r/w
s.34 IPC for having caused the death of the deceased was
not justified under the facts of the case and the evidence      F
available on record. However, he was convicted u/s.304
(Part-II) IPC1 •

     In the instant appeal filed by the appellant, it was
contended that his case is identical to the case of accused G
'S', and therefore, he should also be given the benefit of
the jud9ment in Subhash's case.

1.   Subhash V. State of Haryana (2007) 12   sec 63.
                                  1157                          H
     1158      SUPREME COURT REPORTS [2009] 10 S.C.R.


A         Dismissing the appeal, the Court

       HELD: The overt acts on the part of the appellant
  together with co-accused 'J' were totally different. The
  deceased was caught hold of by the appellant and co-
8 accused 'J' and was thrown in the canal. 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 by the
  appellant and co-accused 'JS' and again thrown in the
  canal and, as such, he could not come out. The fact that
C the deceased was in an inebriated condition is not in
  dispute. He, therefore, upon receiving injuries, unlike PWS
  could not have swum to the shore to save his life. The
  case of the appellant is not in pari materia with that of
  accused 'S', and he has rightly been convicted u/s.302
D IPC. [Paras 4, 8 and 9] [1160-B; 1162-B-D]

         Subhash v. State of Haryana (2007) 12 SCC 63,
     distinguished.
                         Case Law Reference:
E
         (2001) 12 sec 63           distinguished         Para 2
         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
     No. 1285 of 2009.
F        . From the Judgment & Order dated 28.2.2006 of the High
      Court of Punjab & Haryana at Chandigarh in Criminal Appeal
    · No. 193-08 of 1997.

         D.P. Singh and Sanjay Jain for the Appellants.
G
          Manjit Singh, AAG, Kamal Mohan Gupta, Gaurav T. (for
     T.V. George) for the Respondents.

         The Judgment of the Court was delivered by

H        S.B. SINHA, J. 1. Leave granted.
    JAi KUMAR v. STATE OF HARYANA [S.B. SINHA, J.] 1159


        2. The appellant is before us claiming parity with his co-      A
    accused Subhash for obtaining the benefit of a judgment of this
    Court in Subhash v. State of Haryana since reported in [(2007)
    12 sec 63).

         3. At the outset, we would like to place on record that this
                                                                        B
    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.
                                                                        c
          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
    lr1formation Report was lodged by one Mane Ram (PW8) who            D
    alleged that he along with the deceased Raghbir Singh had
    gone to village Kai Ilana 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                  E
    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       F
    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           G
    Basu Sarda~ caused an injury on the head of Subhash and fled
    away. Subhash was being taken to village Pugthala for his
    treatment. Accused Joginder ~ingh 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            H
    1160       SUPREME COURT REPORTS [2009] 10 S.C.R.


A 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.
B 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
c 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.
D      5. All the accused including Subhash and the Appellant
  were convicted for commission of offences under Sections 392,
  397 and 302 read with S~tion 34 of the Indian Penal Code.
  Appeals filed before the High Court were dismissed. Subhash
  alone approached this Court. Contention raised on his behalf
E 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
F       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
G
        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."
H       6. The other contention that Mane Ram (PW8) lodged the
JAi KUMAR v. STATE OF HARYANA [S.B. SINHA, J.] 1161


First Information Report after a great delay and, thus, a serious   A
doubt is cast on the case set up by the prosecution was also
negatived. While, however, considering the involvement of
Subhash, vis-a-vis, the Prosecution case, it was held :

    "14. Be that as it may, it is not the case of the appellant
                                                                    8
    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         C
    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         D
    appellant beyond all reasonable doubt for conviction under
    Section 392 read with Section 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            E
    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 F
    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 G
    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."
                                                                  H
    1162       SUPREME COURT REPORTS (2009] 10 S.C.R.


A        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.
B
       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
C that he was in an inebriated condition is not in 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
D 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.

    R.P.                                        Appeal dismissed.