LexBIJA & ORS versus STATE OF HARYANA
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[2008] 1 S.C.R. 477 BIJA & ORS. II. STATE OF HARYANA (Crl. A. No. 344 of 2007) JANUARY 10, 2008 [C.K. THAKKER AND D.K. JAIN, JJ.] A B 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 c in ordering conviction of all
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