Holding

The death was homicidal by smothering; Jagdish's conviction under Section 302 IPC stands, but there was no evidence of common intention by the other accused, so their convictions under Section 302 read with Section 34 are set aside.

Summary

The deceased Santro, after a forced second marriage (Karewa) arranged by the village Panchayat, was found dead in her in-laws' house. Medical evidence established that she died from asphyxia due to smothering, not from epilepsy or electrocution as the defence claimed. The trial court and High Court convicted all four accused—Jagdish (husband), Raghbir Singh (former husband), Bija (father‑in‑law) and Sona Devi (mother‑in‑law)—under Section 302 IPC read with Section 34, alleging a common intention to kill. On appeal, the Supreme Court upheld Jagdish's conviction, finding a direct, immediate grievance on his part, but held that there was no proof of a common intention among the other three accused and set aside their convictions. The appeal was therefore partly allowed.

Issues considered

The cause of death of the deceased – whether it was homicidal by smothering or due to epilepsy/electrocution.
Whether the prosecution proved a common intention under Section 34 IPC among all the accused.
Whether conviction under Section 302 read with Section 34 IPC is sustainable for the father‑in‑law, mother‑in‑law and former husband.
The reliability of the sister's testimony and its impact on the prosecution case.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 302, s. 304B, s. 34, s. 498A

Subjects

murdercommon intentionSection 34 IPCsmotheringforced marriagePanchayatacquittalconvictionhomicideasphyxia

Judgment

[2008] 1 S.C.R. 477

BIJA & ORS. A
II.
STATE OF HARYANA
(Crl. A. No. 344 of 2007)
JANUARY 10, 2008
B
[C.K. THAKKER AND D.K. JAIN, JJ.]

Penal Code, 1860 - ss. 302 rlw s. 34 - Murder -
Prosecution case that marital discqrd· between wife and first
husband - On intervention and pressure by Panchayat, c
second marriage of wife with first husband's brother by karewa
marriage though in-laws and former husband not in favour -
Second husband also unhappy with wife - Few months
thereafter, death of wife in matrimonial home -:- Conviction of
in-laws, former husband and second husband uls 302 rlw s. 0
34 by courts below - Correctness of - Held: Death was
homicidal in nature and was caused by asphyxia due to
smothering - Second husband had direct, immediate and
proximate grievance - Hence, his conviction u/s. 302 upheld
- However, insufficient evidence as to common intention on E
part of in-laws and former husband to kill deceased, hence,
their conviction by aid of s. 34 set aside.
According to the prosecution case, S-wife was
unhappy at her matrimonial home. It is alleged that RS-
h usba n d was not happy with S due to several F
circumstances and as such became indifferent to S and
abandoned her. Thereafter, on intervention of Panchayat,
J, brother of RS was compelled to marry S by Karewa
marriage by exchange of garlands though her first
husband and his parents were not in favour of the second G
marriage. J was also unhappy with S. Few months later,
S died. It is alleged tha~ J-husband of S, RS-former
husband of S and father-in-law and mother-in-law,
accused nos 1 and 4 caused death of S by closing her
mouth and nose and by smothering. Accused were H
477
478 SUPREME COURT REPORTS (2008] 1 S.C.R.

A charged under sections 498 A, 304 B read with s. 34 and
section 302 read with s. 34. Sister of S who was married ....
to the brother of RS, deposed that S was suffering from
epilepsy and died due to that. Trial Court held that the
case of dowry demand was not made out and acquitted
B the accused under section 498 A, 304 B read with s. 34
IPC. However, on being satisfied that the accused killed
S in furtherance of common intention, convicted the
accused under section 302 read with section 304 IPC.
High Court upheld the order. Accused filed appeal before
c this Court. Accused nos. 1, 2 and 4, RS and parents-in-
law were enlarged on bail except J.
Appellants-accused contended that the courts below
erred in convicting them; that when no case was proved
by the prosecution against them for offences punishable
D under sections 3048 and 498A read with section 34 IPC,
they ought to have been granted benefit of doubt and
could not have been convicted under section 302 read
with section 34 IPC; that there was sufficient evidence on
record in the form of substantive evidence of DW1 -real
E sister of S; that the deceased was suffering from Epilepsy
and the said ailment was responsible for her death; that
finding of dead body from the house of the accused does
not necessarily connect the appellants with the offence;
and that there was no evidence to invoke section 34 IPC.
F Respondent-State contended that the order of
conviction by the trial Court and upheld by the High Court
was correct; that from the evidence of prosecution
witnesses it was clearly established that there was motive
on the part of the accused to kill deceased S; that during
G the night time of May 1 and 2, 1998, she was all alone in
the house at the ground floor and all the accused persons
were on the roof; that taking advantage of the situation,
all the accused killed the deceased by pressing her nose
and mouth; that the death due to asphyxia by smothering
H was clearly established by medical evidence on record;
BIJA & ORS. v. STATE OF HARYANA 479

't 4 that the conduct of the appellants also went a long way in A
proving mens rea and the case against them; that though
there was no electric connectiqn, electric wire was put
near the dead body of deceased S to give an impression
to police that death was caused due to electrocution; that
OW 1, sister of deceased S, was married to real brother of B
RS and J and son of accused no 1 and 4 and was staying
with her husband and as such was expected to support
~-
the defence and courts below rightly discarded her
evidence; and that since all the appellants had common
intention to kill deceased S, the Courts below were right
in ordering conviction of all of them under Section 302
c
read with Section 34, IPC,
Partly allowing the appeal, the Court
HELD: 1.1 From the evidence of prosecution
witnesses and the findings recorded by both the Courts D
)( in the light of evidence of PW9-Doctor, it was proved
J ~ beyond reasonable doubt that the cause of death of S
was asphyxia due to smothering. An impression was
sought to be created by the accused that cause of death
was electrocution but from the evidence of PW10- E
Inspector, the possibility was ruled out. It was also
established from medical evidence that the death was not
due to ailment of Epilepsy as put forward by the defence
case. Therefore, both the Courts were right in coming to
,.. the conclusion that death of S was homicidal in nature F
f- and the cause of death was Asphyxia due to smothering.
[Para 13J [487-G; 488-A, BJ
1.2.The Courts below were right in not relying upon
the deposition of DW1-sister of deceased S and in
observing that she was under pressure as she was G
staying at matrimonial home and with a view to protect
1~ her, she deposed in favour of her in-laws as she wanted
to save them. It could not be said that by drawing such
inference, the trial Court or the High Court had committed
any error. [Para 14J [488-C, DJ H.
.
480 SUPREME COURT REPORTS (2008] 1 S.C.R.

A 1.3 There was motive on the part of the accused in
doing away with S. ·Though both the Courts had not
believed the case of demand of dowry and cruelty towards
deceased S for non-payment of sufficient dowry by the
parents of deceased S in view of the circumstance that
B another sister of S married to one of the brothers of RS
. had not stated anything as to demand of dowry by the
accused persons and she was living at the matrJmonial
home peacefully. It has come on record that S was not
good-looking lady. Moreover, though her marriage was
c performed with RS along with her sister, for about 10
years, sh'ecould not conceive and could not bear a child.
RS was totally indifferent and.abandoned her. PW2-father
of deceased S, made complaint to Panchayat and finally,
the Panchayat practically forced the family members of
o the accused to accept S and keep her in their family. It
was because of the compulsion and pressure of
Panchayat that accused had to agree to marriage between
J and S. Thus, there was every reason for the accus~d to
be unhappy with deceased S. J, who was the present
E husband, had grievance against S. He had to marry S who
was neither beautiful nor able to bear child. The marriage
was subsisting. After S married J, he was unhappy as she
could not conceive. Presumably because of that, he was
also indifferent towards her. On the intervening night of
F 1st and 2nd May, 1998, S was alone in her room on the
ground floor and J was on the roof along with other family
members and the dead body of deceased S was found in
the morning of May 2, 1998 from the house of the accused.
Direct, immediate and proximate grievance at the relevant
time was for accused J. Hence, his conviction and
G sentence for an offence punishable under Section 302 IPC
by the trial Court and confirmed by High Court cannot be
said to be contrary to law or otherwise unlawful, and is
confirmed. [Paras 15, 16 and 17] [488-E, F, G; 489-A, B, C,
D, E, F, G]
H
BIJA1 & ORS. v. STATE OF HARYANA 481

,, [C.K. THAKKER, J.]

1.4 There was no evidence that accused Nos. 1 and A
4- parents of the accused No.3-J and accused No.2-RS,
former husband of the deceased had common intention
to kill deceased S and they were parties in killing the
deceased. In view of the fact that accused Nos. 1, 2 and 4
could not be said to be directly connected with the.death B
of S, in absence of clear evidence to that effect, the Courts
below could not have convicted them by invoking Section
~
34 IPC. So-called extra judicial confession by accused
No.4-mother in law before GS and AS was not proved.
Thus, the conviction and sentence of accused Nos. 1-
father-in-law, accused No.4-mother-in-law and accused
c
No.2-former husband of deceased S by the aid of Section
34, IPC is set aside and they are to be acquitted. [Paras 16
and 17] [489-C, E, F; 490-8, C]
CRIMINALAPPELLATEJURISDICTION: CriminalAppeal D
No. 344 of 2007.
~
f ~ From the final Judgment and Order dated 6. 7 .2006 of the
High Court of Punjab and Haryana at Chandigarh in Crl. A. No.
435-DB/2003.
E
R.S. Dhull and Debasis Misra for the Appellants.
Naresh Bakshi and T.V. George for the Respondent.
The Judgment of the Court was delivered by
_...
C.K. THAKKER, J. 1. The present appeal is directed F
f. against the judgment and order of conviction and sentence
recorded by the Additional Sessions Judge-I, Kaithal dated May
17, 2001 in Sessions Trial No. 52of1999 and confirmed by the
High Court of Punjab & Haryana on July 6, 2006 in Criminal
Appeal No. 435-DB of 2003. By the aforesaid orders, all the G
appellants were convicted for an offence punishable under
Section 302 read with Section 34 of the Indian Penal Code (IPC)
and ordered to undergo rigorous imprisonment for life and to
pay fine of Rs.2000/- by each of them. Default sentence was
also ordered. H.
482 SUPREME COURT REPORTS [2008] 1 S.C.R.

A 2. The case of the prosecution was that Smt. Santro
(deceased) was the daughter of PW2-Lakhmi Chand. Lakhmi
Chand was having another daughter named Shero. Both the
sisters (daughters of Lakhmi Chand) were married to two sons
of Bija-accused No.1. Whereas deceased Santro married to
B accused No.2-Raghbir Singh, Shero (sister of deceased
Santro) married to Subhash Singh, another son of Bija-accused
No.1 and brother of Raghbir Singh-accused No.2. According to
the prosecution, though the marriage of both the sisters was
solemnized in 1988, deceased Santro was unhappy at her
c matrimonial home. It was alleged that accused Raghbir Singh-
husband of Santro was not happy with his wife. Santro was not
beautiful, she had not brought sufficient dowry with her and also
that she could not conceive and bear a child in spite of the fact
that substantial period of about 7-8 years after marriage had
elapsed. In view of the above facts, accused Raghbir singh
0
became almost indifferent to Santro and nearly abandoned her.
The Panchayat was informed and several meetings were held
and ultimately, due to intervention of the Panchayat, after about
ten years of the marriage and 5-6 months prior to the incident
which took place in May, 1998, Santro again got married to
E Jagdish-accused No.3 (younger brother of Raghbir Singh) who
was bachelor at the relevant time, by exchanging garlands
(Jaimala). It was the case of the prosecution that the accused
were not in favour of the second marriage of Santro with Jagdish,
but they had to agree and the marriage was performed due to
F intervention and pressure by the Panchayat. That was said to
be the motive on the part of the accused for causing death of
deceased Santro.
3. According to the prosecution version, in the night
G intervening May 1st & 2nd, 1998, Santro died in the house of her
in-laws. The allegation was that, all the four accused, namely,
Jagdish-husband of Santro, Raghbir Singh-former husband of
Santro, Bija and Sona Devi - father-in-law and mother-in-law
respectively of Santro caused her death by closing her mouth
and nose and by smothering her.
H
BIJA & ORS. v. STATE OF HARYANA 483
[C.K. THAKKER, J.)
't
' 4. According to PW2-Lakhmi Chand (father of deceased
Santro), he was at his agricultural field in the night of May 1,
A

1998. There he received a message that his daughter was killed
by all the four accused persons. He immediately went to his
house from the field and accompanied by PW3-Sher Singh
(Sarpanch of the village) and PW4-Ganga Singh (brother-in- B
law of PW2 Lakhmi Chand and maternal uncle of deceased
Santro) went to the house of the accused and found dead body
I\'
of his daughter Santro lying nearthe door of the room. An electric
wire was hanging over the dead body of his daughter. PW2-
Lakhmi Chand along with Sher Singh, Ganga Sirigh and others, c
then went to the Police Station, Rajound and lodged First
Information Report (FIR) with the police. After usual investigation,
charge sheet was submitted. It appears that initially the case
was registered against the accused for offences punishable
under Sections 498A, 3048 read with Section 34, IPC. But,
D
since the Court was satisfied that prima facie there was sufficient
Ir material to frame charge against the accused for an offence
punishable under Section 302 read with Section 34, IPC, the
" ""'
charge was amended and all the four accused were also charged
for an offence punishable under Section 302 read with Section
34, IPC in addition to offences punishable under Sections 498A E
and 3048 read with Section 34, IPC.
5. Th.e prosecution, in order to prove guilt of the accused,
examined as many as 12 witnesses including PW2-Lakhmi
'f Chand (father of deceased), PW3-Sher Singh (Sarpanch of the F
; village) and PW4-Ganga Singh (maternal uncle of deceased
Santro). It was stated in the FIR that deceased Santro was killed
by all the accused in furtherance of common intention by giving
electric current to her, as electric wire was lying near the dead
body of Santro, but during the course of investigation, it was
G
found that there was no electric connection in the house of the
~~ accused and medical evidence also revealed that death of
deceased Santro was caused due to asphyxia by smothering
and accordingly, the case was considered on that basis.
6. After appreciating the evidence on record, the trial Court H
484 SUPREME COURT REPORTS [2008] 1 S.C.R.

A came to the conclusion that it was clearly established by the
prosecution, particularly from the evidence of PW2-Lakhmi
Chand (fatheir of deceased Santro) and PW4-Ganga Singh
(maternal uncle of deceased Santro) that the deceased was
not happy at the matrimonial home. Several circumstances were
B responsible which made accused unhappy with Santro and her
life miserable. They were, inter alia, narrated by the prosecution
witnesses, as Santro not being very beautiful, she did not bring
sufficient amount of dowry with her and could not give birth to a
child. It has also come in evidence that attitude of accused
c Raghbir Singh-former husband of deceased Santro, was totally
indifferent and he had almost abandoned her. Several
complaints were made to the Panchayat and the Panchayat
insisted that the family of the accused must do something to do
justice to Santro as there was no fault on the part of deceased
Santro for which she was not treated properly. At the intervention
0
of the Panchayat in October, 1997, therefore, the family of the
accused had to agree to marry one of his sons (accused
Jagdish) with deceased Santro by Karewa marriage. It is clear ....
from the prosecution evidence that none of the family members
E of the accused liked the marriage of Santro with Jagdish-younger
brother of Raghbir Singh-former husband of Santro. Once again
Santro could not conceive and accused Jagdish and other family
members of the accused got disturbed. From the prosecution
evidence, it is clear that in the intervening night between May 1
and 2, 1998, all the family members except deceased Santro
F were sleeping on the roof of the house of the accused and Santro
alone was in her room at the ground floor. According to the
prosecution, when the family members of the accused came In
the morning of May 2, 1998, Santro was found dead in her room.
Since no outsider was present in the house and as the accused
G persons were unhappy with Santro and they had motive and
reason to kill Santro, all of them jointly committed tl'le murder of
Santro. Then with a view to mislead the investigating agency,
they had put an electric wire near the dead body of Santro. From
the evidence of PW10-lnspector Guizar Singh, however, It was
H proved that there was no electric connection in the house of the
BIJA & ORS. v. STATE OF HARYANA 485
[C.K. THAKKER, J.]
accused and the possibility of death of Santro by electrocution A
--<" ' was thus ruled out. The case was also put forward by the defence
under Section 313 of the Code of Criminal Procedure, 1973 as
~
also by examining DW1-Shero-real sister of deceased and
wife of Subhash Singh-brother of accused Raghbir Singh and
Jagdish that deceased Santro was suffering from Epilepsy and B
she died due to that ailment. But from the evidence of PW9-Dr.
-.(
... B.B. Kakkar, it was clearly established that the cause of death
was neither electrocution nor Epilepsy but asphyxia due to .
__/ smothering.
7. The trial Court held that both the sisters-Shere and c
Santro got married to two brothers on one and the same day.
Both the sisters were then sent to matrimonial home. It was,
therefore, not possible to believe that there was dowry demand
from one sister i.e. deceased, and not from the other sister i.e.
Shere. Again, no sufficient evidence was led by the prosecution D

., .
4
to prove demand of dowry and death of deceased Santro on
that account. Accordingly, the trial Court acquitted all the accused
for offences punishable under Sections 498A and 304B read
with Section 34, IPC. But the trial Court was satisfied that all the
accused killed Santro in furtherance of common intention and E
accordingly, it convicted them for an offence punishable under
Section 302 read with Section 34, IPC.
8. The High Court again considered the evidence on
record and submissions made by the parties and held that the
y
trial Court did not commit any error of fact or of law in convicting F
.j the accused for an offence punishable under Section 302 read
with Section 34, IPC and dismissed the appeal.
9. On January 12, 2007, notice was issued by this Court
on Special Leave Petition as well as on bail application. On
G
March 12, 2007, leave was granted and hearing of the appeal
~.J.; was expedited. On May 16, 2007, accused Nos. 1, 2 & 4 (parent·
In-laws and former husband of the deceased) were enlarged
· on bail but the bail application of Jagdish (husband of Santro)
was rejected. The matter is now placed before us for final
H
486 SUPREME COURT REPORTS [2008] 1 S.C.R.

A hearing.
10. We have heard learned counsel for the parties.
11. The learned counsel for appellants contended that both
the Courts committed grave error in convicting the appellants. It
B was submitted that when no case was proved by the prosecution
against them for offences punishable under Sections 3048 and
498A read with Section 34, IPC, they ought to have been granted
benefit of doubt and could not have been convicted under
Section 302 read with Section 34, IPC. Once it was held that it
c could not be said that death of Santro was caused due to
demand of dowry, there was no other reason to kill her. It was
also submitted that there was sufficient evidence on record in
the form of substantive evidence of DW1-Shero (real sister of
Santro) that the deceased was suffering from Epilepsy and the
said ailment was responsible for her death and the appellants
0
cannot be convicted for any offence. It was urged that finding of
dead body from the house of the accused does not necessarily
connect the appellants with the crime in question. Finally, it was
submitted that there was no evidence to invoke Section 34, IPC
E as there was no common intention on the part of the accused in
committing the crime and both the Courts were in error in
invoking the said provision. On all these grounds, it was
submitted that both the orders are liable to be set aside.
12. The learned Government Pleader, on the other hand,
F supported the order of conviction recorded by the trial Court
and confirmed by the High Court. According to him, the case
was of circumstantial evidence and the chain of circumstances
was full, complete and unbroken. From the evidence of
prosecution witnesses, PW2-Lakhmi Chand, PW3-Sher Singh
G and PW4-Ganga Singh, it was clearly established that there
was motive on the part of the accused to kill deceased Santro.
It has come on record that Santro was not beautiful, she did not
bring sufficient dowry and finally she could not bear a child. It
has also come on record that a complaint was made to village
Panchayat and several meetings were held. The Panchayat
H
BIJA & ORS. v. STATE OF HARYANA 487
[C.K. THAKKER, J.)

,, .4 intervened and finally the deceased Santro had to be A
,
accommodated in the family and accused Jagdish was
compelled to marry her by a karewa marriage exchanging
garlands. But the said act was not approved by any of the
accused persons and had to agree to the marriage due to
'•
intervention by the Panchayat which was the root cause of B
trouble. This is also clear from the fact that during the night time
of May 1 & 2, 1998, she was all alone in the house at the ground
~
floor and all the accused persons were on the roof. According
to the teamed Government Advocate, taking advantage of the
situation, all the accused killed the deceased by pressing her c
nose and mouth. The death due to asphyxia by smothering was
clearly established by medical evidence on record. The counsel
also submitted that the conduct of the appellants also went a
long way in proving mens rea and the case against them. Though
there was no electric connection, electric wire was put near the
D
dead body of deceased Santro to give an impression to police
that death was caused due to electrocution. It was because of
Ji the investigating officer's efforts that the falsehood had come
to light and it was established that there was no electric
connection and death was not due to electrocution but due to
asphyxia by smothering. Regarding evidence of Shere-sister E
of deceased, it was submitted that though she was sister of
deceased Santro, she was married to real brother of Raghbir
Singh and Jagdish and son of Bija and Sona Devi. Shero was
staying with her husband. Obviously, in the circumstances, she
was expected to support the defence. Her evidence was, hence, F
"" rightly discarded by both the Courts. Since all the appellants
• had common intention to kill deceased Santro, the Courts below
were right in ordering conviction of all of them under Section
302 read with Section 34, IPC and no interference is called for.
The appeal, therefore, deserves to be dismissed. G
;., 13. Having heard learned counsel for the parties, in our
.~
opinion, the appeal deserves to be partly allowed. From the
evidence of prosecution witnesses and the findings recorded
by both the Courts in the light of evidence of PW9-Dr. Kakkar, it
H
488 SUPREME GOURT REPORTS [2008) 1 S.C.R.

A was proved beyond reasonable doubt that the cause of death
of Santro was asphyxia due to smothering. An impression was
sought to be created by the accused that cause of death was
electrocution but from the evidence of PW10-lnspector Guizar
Singh, the possibility was ruled out. It was also established from
B medical evidence that the death was not due to ailment of
Epilepsy. Both the Courts, in our opinion, therefore, were right
in coming to the conclusion that death of Santro was homicidal
in nature and the cause of death was Asphyxia due to
smothering.
C 14. The Courts below were right in not relying upon the
deposition of DW1-Shero and in observing that she was under
pressure as she was staying at matrimonial home and with a
view to protect her, she deposed in favour of her in-laws as she
wanted to save them. In our opinion, it could not be said that by
D drawing such inference, the trial Court or the High Court had
committed any error. This is coupled with the fact that a show
was made by the accused persons to mislead the police and
investigating agency by placing electric wire near the dead body
of deceased Santro and also putting forward a ground of death
E as ailment of Epilepsy, ruled out by medical evidence.
15. There 'f'JaS motive on the part of the accused in doing
away with Santro. Though both the Courts had not believed the
case of demand of dowry and cruelty towards deceased Santro
for non-payment of sufficient dowry by the parents of deceased
F Santro in view of the circumstance that another sister Shere
married to one of the brothers of Raghbir Singh had not stated
anything as to demand of dowry by the accused persons and •
she was living at the matrimonial home peacefully, it has come
on record that Santro was not good-looking lady. Moreover,
G Utough her marriage was performed with Raghbir Singh in 1988
along with Shera, for about 10 years i.e. upto 1997, she could
not conceive and could not bear a child. Raghbir Singh was
totally indifferent and abandoned her. So much so that complaints
were made by PW2-Lakhmi Chand (father of deceased Santro)
H to Panchayat and Panchayat had to intervene. In 1997, finally,
BIJA & ORS. v. STATE OF HARYANA 489
[C.K. THAKKER, J.]

~
A the Panchayat practically forced the family members of the A
accused to accept Santro and keep her in their family and it
was because of the compulsion and pressure of Panchayat that
accused had to agree to marriage between Jagdish and Santro.
Thus, there was every reason for the accused to be unhappy
with deceased Santro. This is further clear from the fact that on B
the intervening night of 1st and 2nct May, 1998, she was alone in
her room on the ground floor and the dead body of deceased
~
Santro was found in the morning of May 2, 1998 from the house
of the accused.
16. But, there is no evidence that parents of the accused c
No.3-Jagdish i.e. accused Nos. 1 & 4 and former husband of
the deceased-accused No.2-Raghbir Singh had common
intention to kill deceased Santro and they were parties in killing
the deceased. It is no doubt true that Jagdish, who was the
present husband, had grievance against Santro. He had to marry D
Santro who was neither beautiful nor able to bear child. The
~- marriage was subsisting. After Santro married to Jagdish in
" A 1997, he was unhappy as she could not conceive. Presumably
because of that, he was also indifferent towards her and in the
intervening night of May 1 & 2, 1998, he was not along with her E
in the company of his wife in the room where she was sleeping
but was on the roof along with other family members. But, in
view of the fact that accused Nos. 1, 2 & 4 could not be said to
be directly connected with the death of Santro, in absence of
y clear evidence to that effect, the Courts below could not have F
convicted them by invoking Section 34, IPC. So-called extra
• judicial confession by Smt. Sona Devi, accused No.4 before
Gaje Singh and Amar Singh has not been proved. Direct,
immediate and proximate grievance at the relevant time was
for accused Jagdish. Hence, his conviction for an offence
G
punishable under Section 302, IPC recorded by the trial Court
and confirmed by the High Court cannot be said to be contrary
~
to law or otherwise unlawful. But there was no sufficient evidence
as to common intention on the part of the other accused in
absence of requisite material on record. In our considered
H
490 SUPREME COURT REPORTS [2008] 1 S.C.R.

A opinion, therefore, Section 34, IPC could not have been invoked >. Y
by the Courts below. To that extent, therefore, both the judgments
deserve to be set aside.
17. For the foregoing reasons, the appeal deserves to be
partly allowed as indicated above and is so allowed. The
8 judgment and order of conviction and sentence recorded against
accused No.3-Jagdish (husband of deceased Santro) for an
offence punishable under Section 302, IPC is confirmed. ~
. Conviction and sentence of accused Nos. 1-Bija, father-in-layv,
accused No.4-Sona Devi, mother-in-law and accused No.2-
C Raghbir Singh-former husband of deceased Santro by the aid
of Section 34, IPC is set aside and they are ordered to be
acquitted.
18. Ordered accordingly.
D N.J. Appeal partly allowed.
..

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