Altamas Kabir, J.— Leave granted. 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 of the Penal Code, 1860. Accused Sucha Singh was found to be a juvenile and his case was separated for separate trial under the Juvenile Justice Act, 1986.
2. 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 5000, 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 5000, in default to undergo further rigorous imprisonment for three years. He was also convicted under Section 25 of the Arms Act, 1959 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 1 and 2, Raju and Mangli, have challenged their conviction under Section 302 read with Section 34 IPC. 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 of the 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.
4. Mr Malhotra 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 31-3-1994, 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.
5. According to the 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.
6. An attempt was made to save Ishwar by taking him to hospital, but he died on the way. Thereafter, the body of the victim was sent for post-mortem examination which was conducted by Dr. (Mrs) K.K Nawal (PW 8), Senior Medical Officer, General Hospital, Hissar along with Dr. Pawan Jain, on 1-4-1994, 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.
7. 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 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.
8. Mr Malhotra submitted that the altercation as well as the subsequent incident was the result of an earlier incident which had taken place on 31-3-1994, in connection with the “bana” ceremony being conducted in connection with the marriage of the son of one Parwati. At the said ceremony, the womenfolk 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 the marriage festivities which ultimately led to the altercation and stabbing of the deceased by Accused 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.
9. As far as Appellant 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 marksheet, 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 Hari Ram v. State of Rajasthan (2009) 13 SCC 211, (2009) 6 Scale 695, Appellant 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, therefore, contended that Appellant 1 would have to be dealt with under the provisions of the said Act in keeping with the decision in the aforesaid case.
10*. 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 Appellant 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 Appellant 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 deceased with the womenfolk at the marriage ceremony of the son of Parwati which triggered the incident.
11. It was submitted that the subsequent incident culminating in Ishwar's death was not an isolated incident but a fallout 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 Appellant 2, who along with Appellant 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 Appellant 2 did not warrant any interference and the appeal as far as he was concerned, was liable to be dismissed.
12. 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 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 womenfolk, who were participating in the festivities, were teased by the deceased in an inebriated state. The resultant fallout 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.
13. 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 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 eyewitness 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.
14. The learned counsel appearing for the appellants has placed strong reliance upon the judgment of this Court in V. Sreedharan v. State of Kerala 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 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.
15. 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.
16. 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 and they are convicted instead under Section 304 Part I read with Section 34 IPC. Appellant 2 is sentenced to two years' rigorous imprisonment and a fine of Rs 500. In default of payment of such fine, Appellant 2 shall undergo rigorous imprisonment for a further period of 15 days. Appellant 2 shall be entitled to set-off in respect of the period of imprisonment already undergone in terms of Section 428 CrPC.
17. As far as Appellant 1 is concerned, let his case be referred to the Juvenile Justice Board concerned 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 for transmission of the records to the Juvenile Justice Board concerned, as far as Appellant 1 is concerned.
18. The appeal is disposed of accordingly.