Delhi High Court

Sanjay @ Sonesh Dass vs State on 22 September, 2008

Author: P.K.Bhasin

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

%                CRL. APPEAL NO. 732 OF 2001

+                   Date of Decision: 22nd September, 2008

#    SANJAY @ SONESH DASS                          ...Appellant
!                                Through:   Mr.   Anil Soni,
                                 Advocate
                           versus

$    STATE                                     ...Respondent
^                                Through: Ms. Richa Kapoor,
                                 APP


     CORAM:
*    HON'BLE MR. JUSTICE B.N.CHATURVEDI
     HON‟BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see the
   judgment?
2. To be referred to the Reporter or not?(Yes)
3. Whether the judgment should be reported in the digest?(Yes)



                      JUDGMENT

P.K.BHASIN, J:

In this appeal the appellant questions the correctness of

judgment dated 9th January, 2001 and the order on sentence

dated 10th January, 2001 passed by the learned Additional

Sessions Judge whereby he was convicted for having committed the offences of murder, attempt to murder and robbery and was

sentenced to life imprisonment under Section 302 IPC, seven

years rigorous imprisonment under Section 307 IPC and seven

years rigorous imprisonment under Section 394 IPC. Fine was also

imposed on each count with a default stipulation. The substantive

sentences of imprisonment were ordered to run concurrently.

2. The facts of the prosecution case may first be noticed. PW-5

Dwarka Nath Khanna, aged about 73 years, was living with his

wife Smt. Kamla Khanna in house number R-545, Rajinder Nagar,

New Delhi. They had a son (PW-6 Vipin Khanna) who was settled

in London and a daughter who was married. They had employed

one domestic servant Ram @ Vishu. The appellant Sanjay, who

was also working as a domestic servant in the same locality in the

house of PW-4 Smt. Sneh Chopra, was known to Khannas‟ servant

Ram @ Vishu and he used to visit Ram. It appears that Ram had

left the service of Khannas some days before the incident and

then they had employed one maid servant Jayanti, who was

related to the maid servant of Khannas‟ grand daughter who was

also living in the neighbourhood of Khannas. Appellant Sanjay

knew Jayanti. It appears that within few days of her employment

in the house of Khannas Jayanti and appellant Sanjay, both of

whom were new recruits in the locality, decided to make quick

money. They found Khannas to be an easy and convenient prey for

being robbed as they were living alone and chose the night of 17th

March, 1999 for accomplishing their mission. One Mahesh also

joined them in their mission. Appellant and that Mahesh were to

do the actual job of robbery in the house of Khannas and their

maid servant Jayanti was to facilitate their hindrance free entry

into the house of Khannas. As per the case of the prosecution

these persons did accomplish their mission on the night of 17th

March, 1999 and committed robbery in the house of Khannas. Not

only that, while committing robbery Smt. Kamla Khanna was

gagged and strangulated resulting in her death and her husband

Dwarka Nath Khanna was also brutally beaten.

3. It was further case of the prosecution that Khannas‟ maid

Jayanti in order to ward off the possibility of police straightaway

suspecting her involvement also in the incident acted smart after

the incident. She immediately went crying to the house of the

grand-daughter of the old couple (PW-8 Suparna Malhotra) who

was also living in Rajinder Nagar and informed her that somebody

had killed her grand-mother(naani). PW-8 then rushed to the

house of her grand-parents and saw that her grand-mother was

lying on the floor and a blood stained knife near her was also

noticed on the floor. Her grand-father (PW-5) was found in injured

condition with blood all over his face and was breathing. House-

hold articles were lying scattered. Suparna Malhotra telephoned

the police and also informed her uncle PW-10 Ravi Ahuja about

the incident. He came there and took Dwarka Nath Khanna to

Ganga Ram Hospital. PCR Van which had also reached the spot

took Smt. Kamla Khanna to RML Hospital where she was declared

as brought dead. Local police on being informed of the incident

swung into action. The case was initially entrusted to PW-24 Sub-

Inspector Rameshwar Parsad. He went to Ganga Ram Hospital

where the injured Dwarka Nath Khanna was found admitted but

was not fit to make any statement. At the time of his medical

examination injuries were noticed on his person which were

opined to be grievous in nature.

4. Since there was no eye witness of the incident the police

had to wait till the injured Dwarka Nath was declared fit for

statement so that it could be known how the incident occurred

and who were the culprits. However, on the basis of the MLCs of

the deceased and the injured D.N. Khanna obtained by the

Investigating officer from the two hospitals a case under Sections

302/307 IPC was got registered on 17.3.99 itself vide FIR no.

89/99 (Ex. PW-2/B) and the dead body of the deceased Smt.

Kamla Khanna was got subjected to post mortem examination by

PW- 3 Dr. Anil Kumar on 18.3.99. The following external and

internal injuries were noticed by the autopsy surgeon on the dead

body of the deceased:

(A) External injuries

1. Contusion with swelling 6 x 5 cm over middle of forehead.

2. Contusion abrasion 3 x 2 cm over left side face present over the left naso labial fold.

3. Contusion over 3.5 x 2 cm area over the upper part of left ear.

4. Contusion abrasion 1 x .5 cm over left upper lip.

5. Abrasion 4.5 x 2 cm over left side neck starting from left angle of jaw downwards.

6. Abrasion 1 x .5 cm over left side lower jaw.

7. Abrasion .5 x .3 cm over left side lower jaw below injury No. 6.

8. Abrasion .8 x .3 cm over left side neck below and outer to injury No. 7.

9. Superficial incised wound 1.5 x .6 cm over leftside neck below the middle of lower jaw.

10. Superficial incised wound 1.5 x .6 cm over the inner angle with trailing, the wound being 4 cm outer to the mid line and 5 cm above the middle of left clavicle.

11. Superficial incised wound 1.5 x .4 cm over left side of lower jaw 1 cm in front of left ear.

12. Scratch abrasion 1.3 cm over left side neck 4 cm below left ear.

13. Stitched incised wound 9 cm long in a zig zag pattern over palmer aspect of right hand(Defence wound)

14. Contusion 2 x 1 cm over outer aspect of left knee.

15. Scratch abrasion 9.5 cm over left side abdomen.

16. Scratch abrasion 4.5 cm long .3 cm above injury No. 15.

17. Scratch abrasion .5 cm long outer and back to injury No. 16.

18. Contusion 2.5 x 1.5 cm over outer lower aspect of left arm.

(B) Internal injuries

On internal examination of the body hyoid bone were found fractured over the junction of right corner with the body of hyoid bone.

The autopsy surgeon opined that the death of the deceased

lady was caused due to asphyxia as a result of strangulation

(manual) as well as smothering which was a homicidal act.

Injuries no. 9, 10, 11 & 13 were opined to have been caused by

some sharp edged weapon and also that the same could be

caused with the knife (Ex. P-8) which the police had seized from

the spot and which was shown to this autopsy surgeon for his

opinion. Injuries no. 12, 15, 16 & 17 were opined to have been

caused by some pointed object. Injuries no. 2 to 8 were opined to

have been caused by blunt force impact and were sufficient to

cause death in the ordinary course of nature via pressure over

mouth, nostrils and neck.

5. On 19th March, 1999 Dwarka Nath Khanna could make his

statement, although he was discharged from the hospital on

21.3.99, and then the horrifying tale of robbery and the murder of

his life partner was narrated by him to the police. According to

Dwarka Nath Khanna on 17.3.99 at about 8.45 p.m. he and his

wife(the deceased) had retired to their bedroom after having

dinner. Their maid servant Jayanti was still in the house at that

time. He lied down on the bed while his wife Kamla Khanna was

watching television. Suddenly two boys, out of whom one boy who

was known to him as he used to come to meet their earlier

servant Ram was having a knife in his hand, entered their bed-

room and pounced upon them and started beating them. They

shouted for help but no one came to their rescue . Their maid

Jayanti was present in the house at the time of incident but she

also did not come to save them. Dwarka Nath further claimed

that the boy who was holding the knife and was known to him

made his wife fall down and gagged her mouth with the „chunni‟

and also strangulated her and he himself was given so severe

beatings that he became unconscious. In his statement to the

police the injured D.N. Khanna also stated that his wife used to

wear a gold chain, two gold karras, gold ring, ear-rings and a

watch. He gave the descriptive features of the two assailants and

also claimed that he could identify them on being produced before

him.

6. On the day of the incident itself the son of the Khannas was

informed in London about the incident and he reached Delhi on

18th March. He informed the police that on checking he had found

cash of about eight or nine thousand rupees which his mother

used to keep with her missing. Besides the cash he had also

informed the police about his mother‟s missing jewellery items

and some other things belonging to him including one Casio

calculator, one wrist watch (GUY LAROCHE with golden dial) and a

briefcase (SUNPURI make) containing some visiting cards and

some other papers.

7. The police had started interrogating the domestic servants

in the locality as well as their employers and came to know that

accused Sanjay was employed by PW-4 Sneh Chopra as a

domestic servant in her house in Rajinder Nagar. That lady had

claimed that one Mahesh used to visit her servant Sanjay. She

further claimed that Sanjay had reported for duty in the morning

on 17.3.99 but had not reported in the evening that day and then

in the early morning of 18th March he came and when she was in

the bathroom he left the house with his bag and baggage and did

not come back thereafter. The police also came to know from Sri

Chand PW-9, who those days was doing the job of white wash in

the house of Khannas that on 17.3.99 one boy who had disclosed

his name as Sanjay had come at about 3.30 p.m. and had

enquired from him about Khannas maid servant Jayanti and when

he had told that boy that he could go inside and find out himself

he left without going inside the house of Khannas requesting him

to tell Jayanti that Sanjay had come. On 25.3.99 the police

arrested the appellant-accused Sanjay on the pointing out of PW-9

Sri Chand from a park. On conducting personal search of the

accused-appellant one gold kara(Ex. P-1) and wrist watch(Ex. P-4)

were recovered. On being interrogated Sanjay made a disclosure

statement (Ex PW-9/D) pursuant to which he got recovered a

SUNPURI brief-case (Ex.P-2). The appellant also disclosed the

involvement of one Mahesh and Jayanti, maid servant in the

house of Khannas in the commission of crime. The police then

arrested Jayanti at the instance of Sanjay on 25.3.99. She also

made a disclosure statement (Ex. PW-9/E) pursuant to which she

led the police to a room on first floor of house no. J-367 from

where she got recovered an amount of Rs. 1000 and one gold ring

(Ex. P-3) on which the initials of „K.K.‟ were engraved. Mahesh,

however, could not be traced.

8. The Test Identification Parade (TIP) of the gold ring got

recovered by the accused Jayanti and the gold kara recovered

from the possession of the appellant Sanjay was got conducted

before the Metropolitan Magistrate (PW-22) and PW-6 Vipin

Khanna, son of the deceased identified the same to be belonging

to his mother Smt. Kamla Khanna. It appears that since the

injured Dwarka Nath had not named accused Sanjay in his

statement to the police but had simply claimed that one of the

two boys involved in the incident was known to him as he used to

visit their domestic servant Ram the investigating agency after

arresting accused Sanjay got arranged a Test Identification Parade

to be conducted by a Magistrate on 01.04.1999 but accused

Sanjay declined to participate in the Test Identification Parade on

the ground that he was known to Khanna family as he often used

to visit their servant Ramu who was his friend. The Magistrate

(PW-25) recorded the refusal statement of accused Sanjay (Ex.

PW-25/B) in the TIP proceedings (Ex. PW-25/C).

9. After the completion of the investigation challan was filed in

the Court against the appellant Sanjay and Jayanti. Charges under

Sections 302/307/394 IPC were framed against the appellant in

which it was stated that at the time of the incident there was

another boy also with him. Jayanti was charged under Section 392

read with Section 109 IPC and also under Section 412 IPC. To

prove its case the prosecution examined 28 witnesses. Appellant

in his statement under Section 313 Cr.P.C. denied all the

allegations levelled against him and pleaded his innocence. He

asserted that he had been falsely implicated by the police and the

actual culprit Mahesh was let off. Jayanti also pleaded innocence

and stated that she was arrested by the police on 17.3.99 itself

and was made to sit in the police station and all the recoveries

were planted upon her.

10. The trial Court convicted the appellant Sanjay for the

offences for which he was charged relying upon the evidence of

the injured Shri Dwarka Nath Khanna (PW-5) and the recovery of

the gold kara belonging to the deceased from the possession of

the appellant. However, the trial Court rejected the evidence led

against the co-accused Jayanti regarding her involvement in the

commission of crime as an abettor and gave the benefit of doubt

to her. The appellant Sanjay has challenged his conviction and the

sentences awarded to him by filing this appeal.

11. That the deceased died a homicidal death and PW-5 Dwarka

Nath Khanna received grievous injuries on his forehead was not

disputed by Mr. Anil Soni, learned counsel for the appellant. This

part of the prosecution case is even otherwise fully established

from the medical evidence adduced by the prosecution. The

injuries found on the body of the deceased at the time of post-

mortem examination have already been noticed by us. The injuries

sustained by PW-5 Dwarka Nath Khanna, as have been noticed, in

the MLC (Ex. PW-1/A) prepared by PW-1 Dr. Sanjay Rohatgi of

Ganga Ram Hospital who had examined him are as under:

1. Multiple haematoma on forehead both sides.

2. Both eyes swollen.

3. CLW on right side forehead above eye-

brow size 1 ¼ x ¼ cm.

4. CLW on left temporal area 1 ½ x ¼ cm.

12. As noticed already, the conviction of the appellant is

primarily based on the ocular version of the incident given by PW-

5 Dwarka Nath Khanna before the trial Court. The relevant

portions from his examination chief are being reproduced below:

"I and my wife Kamla Khanna were living in the house no. R-545, New Rajinder Nagar, New Delhi. My son Vipin Khanna resides in London. Accused Jaynti, present in court, was employed by us as domestic help four or five days before the occurrence. She had been referred to us by the Ayah of my daughter‟s daughter Suparna Malhotra.

On 19.3.91 I took meals shortly before 8.00 p.m. I took meals in the bedroom and after taking meals I lay on the double bed in the bedroom. My wife was also lying on the double bed and watching T.V. At about 8.45 p.m. two young boys entered the bedroom. Accused, present in

court(the witness points to accused Sanjay) was one of them. This accused was known to me because he used to visit our servant Ram who was working with us prior to Jayanti. I asked them as to why they had come. They suddenly jumped upon my wife. One of the boys gagged the mouth of my wife with her chunni. They stabbed her also. When I raised alarm, one of the boys stabbed me also. Probably it was the companion of accused Sanjay who stabbed me.

Then I became unconscious. I regained consciousness in the hospital. Later on I came to know that my wife had expired.

On 9th April, 1999 I was passing in front of the police station along with my son. I went inside the police station to make enquiry about the progress of the case. There I saw that accused Sanjay was present there in handcuffs and he was being interrogated by Insp. Ramesh Chand. I identified the accused and told Insp. Ramesh Chand that he was one of the two boys."

Since this witness had deviated from his police version on

some points the public prosecutor had cross-examined him with

the permission of the trial Court. During that cross-examination

PW-5 clarified that the incident had taken place on 17.3.99. He

also claimed that accused Jayanti (since acquitted by the trial

Court) was present in the house at the time of occurrence but she

had not come on hearing the noise.

During his cross-examination on behalf of the accused PW-5

stated that accused Jayanti was still in the kitchen when the two

boys had entered their bedroom. He denied the suggestion that it

was his earlier domestic servant Ram who had committed the

robbery and had assaulted them and further that he had identified

Sanjay at the instance of the police. This witness refuted both

these suggestions as being not correct.

13. Mr. Anil Soni, learned counsel for the appellant challenged

the testimony of PW-5 Dwarka Nath Khanna on the ground that he

was an interested witness being the husband of the deceased and

so based on his testimony alone the appellant could not have

been convicted without any corroboration since the prosecution

itself had not considered him to be a wholly reliable witness as he

was cross-examined by the Public Prosecutor because of his

having not supported the prosecution case on material aspects. It

was further submitted that this witness had not claimed that

accused Sanjay was having a knife in his hand at the time of the

incident as had been claimed by him before the police and even in

his cross-examination by the Public Prosecutor he did not claim

so and that showed that he was not consistent in his version which

fact renders his testimony unreliable. It was also contended that

PW-5 Dwarka Nath had not claimed before the police that the two

boys who had entered into his bed room had stabbed either him or

his wife and, therefore, his statement in Court to the effect that

the two boys, which included the appellant also, had stabbed him

as well as his wife was clearly an improved statement and that too

in respect of a very material aspect of the prosecution case and so

for this reason also his evidence should not be relied upon. We,

however, do not find any merit in these submissions of the learned

counsel for the appellant. There is no doubt that PW-5, the only

eye-witness of the occurrence, is the husband of the deceased but

that relationship would not make him an interested witness. He

himself was injured in the incident having received grievous

injuries and it is now well settled that the testimony of an injured

witness and that too a seriously injured witness cannot be

discarded lightly. There has to be a strong foundation laid from the

side of the accused for disbelieving an injured witness. No such

foundation was laid in the present case against the testimony of

the injured Dwarka Nath Khanna. The fact that a witness of an

occurrence had sustained serious injuries on his body would show

that he was not only present at the scene of crime but had also

seen the occurrence with his own eyes and is also not expected to

spare the real culprit and implicate an innocent person falsely. In

the present case, nothing could be elicited from PW-5 Dwarka

Nath during his cross-examination which could discredit him. It is

not the case of the appellant that PW-5 Dwarka Nath had any

reason to falsely involve him in the incident of robbery and murder

which took place inside his house at a time when he was in

normal course expected to be present in the house alongwith his

old wife. No contradictions or improvements, whatsoever, with

reference to his statement made before the police during

investigation stage could be brought on record on behalf of the

appellant during his cross-examination. The testimony of this

witness, in our view, is straightforward, trustworthy and inspires

full confidence and has been rightly relied upon by the learned

trial Court.

14. We are also of the view that the testimony of PW-5 cannot

be disbelieved just because he was cross-examined on behalf of

the prosecution. He had claimed in his chief examination that he

and his wife were stabbed by the intruders and in cross-

examination by the Public Prosecutor he had claimed that he was

not in a position to recollect if accused Sanjay was having the

knife in his hand. The witness was not confronted with his police

statement when he was cross-examined by the prosecutor and

also on behalf of the accused and so it cannot be said that any

discrepancy or contradiction had been brought on record or that

this witness had made improvement to his version of the incident

given before the police which could discredit this reliable witness.

The legal position in this regard is to be found in Section 145 of

the Evidence Act which reads as under:

              145. Cross-examination        as    to    previous
              statements in writing

A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which

are to be used for the purpose of contradicting him.

This provision of law makes it clear that if a witness is

sought to be contradicted with reference to any statement which

he might have made on some earlier occasion and which had

been reduced into writing then the witness has to be confronted

with the relevant portions of that statement with reference to

which he is sought to be contradicted. The object is to give a

chance to the witness to explain discrepancy or inconsistency, if

any, in the statement made before the police and the one made

before the Court. That was not done in the present case on behalf

of the accused when PW-5 was being cross-examined on his

behalf. So, his evidence cannot be ignored for this reason also as

is urged by Mr. Soni.

15. In our view the evidence of the grievously injured witness

Dwarka Nath Khanna (PW-5) being wholly reliable can be

accepted without any corroboration. However, the prosecution has

also adduced sufficient corroborative evidence for strengthening

the testimony of PW-5 Dwarka Nath Khanna. As noticed already,

the investigating agency had made a request to the Metropolitan

Magistrate for holding a Test Identification Parade but accused

Sanjay had refused to participate in the TIP. The reason given by

him was that he was known to Khannas as he used to visit their

servant who happened to be his friend. In our view, this reason

given by accused Sanjay was not justified. Even if he was known to

Dwarka Nath Khanna he could have participated in the Test

Identification Parade if he actually was innocent and Dwarka Nath

would not have claimed him to be one of the two culprits falsely

and in case he was really not involved in the incident Dwarka Nath

Khanna would have told the Magistrate that none of the persons

participating in the TIP was involved in the incident which took

place in his house. We are, therefore, of the view that unjustified

refusal of accused Sanjay to participate in the TIP lends due

corroboration to the evidence of PW-5 Dwarka Nath.

16. The other corroborative piece of evidence is the recovery of

one gold kara (Ex. P-1) and one wrist watch (Ex. P-4)-make GUY

LAROCHE from the possession of accused Sanjay at the time of

his arrest and one brief case (Ex. P-2)- make SUNPURI which this

accused had got recovered pursuant to his disclosure statement

made after his arrest. All these articles were identified by the son

of the deceased, PW-6 Vipin Khanna. He claimed the Kara (Ex. P-

1) to be belonging to his mother and the wrist watch (Ex. P-4) and

the brief case (Ex. P-2) to be belonging to him. He also claimed

during his evidence that these articles were found missing when

he had checked up on being asked by the police if anything was

missing from the house of his parents. PW-6 had identified the

kara Ex. P-1 during the test identification parade conducted by

PW-22 Shri Harish Dudani, Metropolitan Magistrate. He had also

identified one ring which had allegedly been got recovered by the

acquitted accused Jayanti. However, the learned Trial Court did not

consider the evidence in respect of the recovery of that ring to be

reliable and so, as noticed already, benefit of doubt was given to

Jayanti. As far as the recovery of the gold kara and the wrist watch

from accused Sanjay is concerned the submission of the learned

counsel for the appellant was that the three witnesses who had

deposed about the said recovery were police officials and the only

public witness examined by the prosecution did not support the

prosecution case in respect of the said recovery and, therefore, the

evidence of recovery given by the police witnesses alone should

not have been accepted by the trial Court. There is no doubt that

the only public witness examined by the prosecution, namely, PW-

9 Sri Chand to establish the said recovery did not support the

prosecution during the trial but the recovery of these two

incriminating articles is fully established through the evidence of

PW-28 Insp. Ramesh Chander who had arrested the accused

Sanjay and PW-24 S.I. Rameshwar Prasad, the initial Investigating

Officer and PW-15 Head constable Babu Ram who was also a

member of the police team at that time. There is no reason to

reject their testimonies. They had no axe to grind against accused

Sanjay. PW-9 Sri Chand had admitted his signatures on the

seizure memo (Ex. PW-9/A) whereby the kara(Ex. P-1) and wrist

watch(Ex. P-4) recovered from the possession of Sanjay at the

time of his arrest were seized by the police. He had also admitted

his signature on seizure memo (Ex PW-9/C) whereby the brief

case (Ex. P-2) recovered at his instance pursuant to his disclosure

statement by the police was seized. In these circumstances it is

clear that he was not accepting the recovery of these articles to

help accused Sanjay.

17. We are , therefore, of the view that the learned trial Court

has rightly come to the conclusion that appellant Sanjay was

involved in the incident of robbery cum murder alongwith one

other boy.

18. It had also been argued by learned counsel for the appellant

that the appellant had been charged under Section 302 IPC

simpliciter and has been convicted accordingly which was,

however, not correct since the injured eye-witness Dwarka Nath

Khanna had not categorically claimed that it was the appellant

who alone had stabbed and strangulated his wife and so the

appellant‟s conviction under Section 302 IPC needs to be set

aside. Learned Additional Public Prosecutor, on the other hand,

had submitted in this regard that the appellant‟s conviction can

even now be converted into one under Section 302 IPC read with

Section 34 IPC even in the absence of Section 34 IPC having been

invoked against him by the trial Court while framing the charge

against him since in the charge framed it had been clearly stated

that at the time of the incident one other boy was also present

with him and robbery had been committed by both of them and

even during evidence also Dwarka Nath Khanna had claimed the

participation of two persons in the incident. It was also contended

that all these facts clearly show that the appellant was fully aware

of the prosecution case that the incident had taken place in

furtherance of the common intention of two persons including

himself. In support of this submission learned APP placed reliance

upon two decisions of the Hon‟ble Supreme Court which are

reported as AIR 2006 SC 191, "Gurpreet Singh v. State of Punjab"

and AIR 2001 SC 3853, "Ramji Singh & Anr. v. State of Bihar".

19. We are in agreement with the submission of the learned

counsel for the appellant that conviction of the appellant under

Section 302 IPC simpliciter is not proper since from the evidence

of the only eye witness of the occurrence, namely, PW-5 Dwarka

Nath Khanna it is clear that he had not claimed that accused

Sanjay only had assaulted him and his wife. His testimony was

that one of the two intruders had gagged the deceased and that

"they stabbed her also" and further that one of the boys who was

probably the companion of accused Sanjay who had stabbed him.

In view of this testimony of the injured witness it cannot be said

that accused Sanjay alone was responsible for the death of the

deceased and so his conviction under Section 302 IPC simpliciter

cannot be sustained. However, appellant Sanjay cannot be

acquitted of the charge of murder since from the evidence of the

injured eye-witness it has clearly been established that the

deceased had died because of the injuries caused to her by the

two intruders including the appellant in furtherance of their

common intention and so conviction of the appellant Sanjay for

the offence of murder can be sustained with the aid of section 34

IPC. We are conscious of the fact that the trial Court had not

invoked Section 34 IPC while framing charge of murder against

the appellant but, in our view, for that reason the appellant cannot

secure his acquittal. In the charge framed against him it was

clearly stated that he had committed robbery with one other boy.

In the evidence of the injured eye-witness also it was clearly

deposed by him that the appellant and one other boy who had

entered into his bedroom had assaulted him and his wife. When

the appellant‟s statement under Section 313 Cr.P.C. was recorded

by the trial Court it was put to him at that time that he and his

associate had entered the bedroom of Dwarka Nath Khanna (PW-

5) and when he had asked them as to why they had come both of

them had jumped upon the deceased. It is thus clear that the

appellant faced the trial with full knowledge that the prosecution

case was that the incident of robbery and murder was committed

by him and his associate together and was a pre-planned affair. In

the two decisions of the Supreme Court cited by the learned

Additional Public Prosecutor on the point of conversion of the

conviction of the accused from Section 302 IPC simpliciter to one

under Section 302 read with Section 34 IPC in the absence of a

charge to that effect it has been clearly laid down that such a

course is permissible. We may make a special reference to para

nos. 13 and 14 of the judgment in "Gurpreet Singh (supra) which

are as under:

13. Further, it has been reiterated by this Court in the case of Ramji Singh and Anr. v. State of Bihar, AIR 2001 SC 3853wherein also charge was framed under Section 302 simpliciter but conviction was under Section 302 read with Section 34 IPC and it was laid down that conviction under Section 302 read with Section 34 IPC was warranted as the accused person shared the common intention to cause death of the victim and no prejudice was caused to them because of non-framing of charge under Section 302 read with Section 34 IPC.

14. In the present case, it cannot be said that the accused persons were prejudiced merely because charge was framed under Section 302 IPC simpliciter and no charge was framed under Section 302 read with Section 34 IPC. From the evidence of two eyewitnesses, namely, PWs 2 and 3 it would appear that the accused persons shared the common intention to cause death of the victim. They were cross-examined at length from all possible angles and from the suggestions that were put forth to the eyewitnesses, we are fully satisfied that the accused persons were not in any manner prejudiced in their defence. That apart, in their examination under Section 313 of the Code, the appellants were specifically told that they along with other accused persons armed with kirpan came to the place of occurrence and assaulted the deceased whereafter they fled away which shows that appellants shared the common intention to cause death of the deceased.

We, therefore, alter the conviction of the appellant to

Section 302 IPC simpliciter to one under Section 302 read with

Section 34 IPC.

20. It is evident from the evidence of the injured eye-witness

that the appellant and his associate had gone to the house of the

Khannas with the intention of killing them and committing

robbery. Although Dwarka Nath Khanna was also severely beaten

up at that time but he survived. He had deposed that at the time

of the incident he had become unconscious and it appears that

the appellant and his associate must have thought that he had

also died otherwise they would have ensured his death also as in

that event there would have remained no eye-witness of the