MURARI THAKUR AND ANR. versus STATE OF BIHAR

Citation: [2006] SUPP. 10 S.C.R. 988 · Decided: 14-12-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed
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Judgment (excerpt)

A 
MURARJ THAKUR AND ANR. 
v. 
ST A TE OF BI HAR 
DECEMBER 14, 2006 
B 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
Penal Code, 1860: 
s.302134-Common intention-Three accused participating in murder 
C of a boy-One holding legs of victim, the other sitting on his back and 
holding his hands, the third pressing his neck and cutting his throat-
Complicity of the first two-Held, accused had committed murder after 
overpowering the victim-s.34 is clearly applicable-Plea for benefit of 
Juvenile Justice Act having not been raised in courts below, cannot be 
D allowed to be taken up at such a late stage in Supreme Court-There was 
no fatal delay in lodging Fl R-Juvenile Justice (Care and Protection of 
Children) Act, 2000. 
The two appellants along with another were prosecuted for an offence 
punishable u/s 302/34 IPC. The prosecution case was that appellant no. I 
E caught hold of the legs of the victim, the son of the first informant, while 
appellant no. 2 held his hands and sat on his back and the third accused after 
pressing his neck cut his throat. The incident was witnessed by PW 4, the 
uncle of the deceased and on his alarm PW-6, PW-2, PW-3, PW-7 and a 
number of other persons reached the place of occurrence and they saw that 
F 
the victim had died at the spot. The trial court convicted the appellants under 
s. 302/34 IPC; and the High Court upheld the conviction. 
G 
H 
In the appeal filed by the appellants it was contended that they were 
entitled to the benefit of the Juvenile Justice (Care and Protection of Children) 
Act, 2000; and that there was delay in filing the appeal. 
Dismissing the appeal, the Court 
HELD: I. The plea regarding benefit of Juvenile Justice (Care and 
Protection of Children) Act, 2000, having not been taken before the Courts 
below, cannot be raised before the Supreme Court. Even otherwise also, the 
988 
.. 
..• 
MURARI THAKUR v. STATE OF BIHAR [MARKANDEY KATJU, J.] 989 
question of age of the accused appellants is a question of fact on which evidence, A 
cross-examinatiof!, etc. is required and, therefore, it cannot be allowed to be 
taken up at this late stage. (990-H; 991-A-B] 
2. As regards the contention that there was delay in filing the FIR, 
the occurrence took place on 26.8.1998 at 4 p.m. The first informant, the 
father of the deceased (PW8) was out. He returned home at 8 p.m. and B 
then went to lodge the FIR. The Investigating Officer (PWl 1) has stated in 
his evidence that it was rainy season; there was flood in the area; he reached 
the place of the occurrence on the night of26.8.1998/27.8.1998 at about 1.30 
a.m. and recorded the Fard-e-bayan of the informant In these circumstances, 
there was no such fatal delay in lodging the FIR. (991-C-D) 
C 
3. The High Court and the Trial Court rightly held that the accused 
had committed murder of the deceased after overpowering him in 
furtherance of their common intention. No doubt it was another accused, 
who is not before the Court, who cut the neck of the deceased, but the appellants 
also participated in the murder. One of them had caught the legs of the D 
deceased and the other sat on his back at the time of commission of the murder. 
Hence Sectfon 34 IPC is clearly applicable in this case. (994-E-F] 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.985 of 
2005. 
From the final Judgment and Order dated 12.1.2005 of the High Court 
of Patna, Bihar in Criminal Appeal No. 266 of2001. 
S.C. Maheshwari, Sandhya Goswami, Jabar Singh, M.P.S. Tomar and 
Vipul Maheshwari for the Appellants. 
Gopal Singh and Nishakant Pandey for the Respondent. 
The Judgment of the Court was delivered by 
E 
F 
MARKANDEY KAT JU, J. This appeal has been filed against the 
judgment and order dated 12.1.2005 of the Patna High Court in Criminal G 
Appeal No. 266 of 2001. By that judgment the conviction of the appellants 
by the trial court under Section 302/34 IPC was upheld. 
Heard .learned counsel for the parties and perused the record. 
The case of the prosecution, in short, is that on 26.8.1998 at about 3 H 
990 
SUPREME COURT REPORTS (2006] SUPP. 10 S.C.R. 
A p.m., Dhaneshwar Mishra (PW4), elder brother of the first informant 
Bhuneshwar Mishra was going for grazing his buffalo when he saw his 
deceased nephew Bal Krishna Mishra with the appellants going across the 
river in Parti land. When Dhaneshwar Mishra enquired from them where they 
were going, they all replied that they were on a stroll and they went towards 
east of the river. Dhaneshwa
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