Sukhdev Singh vs State of Punjab

M. Jeyapaul, J.

1 Sukhdev Singh and Mohinder Singh were the accused before the trial Court. Accused Sukhdev Singh alone was convicted for offence u/s 304 Part II of the IPC. He has preferred the present appeal and the other accused Mohinder Singh was acquitted of the charge.

2 The brief case of the prosecution is that on 6.9.2000, at about 2.45 p.m. PW5 Kamal Parkash, brother-in-law of Prabhu Ram was standing alongwith Prabhu Ram on the Chakki Bridge. A bus bearing registration No. HP38-3637 driven by accused-Appellant Sukhdev Singh arrived over there. The passengers in the bus started alighting therefrom and some of the passengers started boarding the said bus. As accused Sukhdev Singh did not move the bus on time, Prabhu Ram who was the owner of yet another bus asked accused Sukhdev Singh to take the bus from that place. Accused Sukhdev Singh retorting that he would take the bus only after it was fully packed with the passengers raised lalkara, got out of the bus and throttled the neck of Prabhu Ram. The second accused Mohinder Singh gave fist blows to Prabhu Ram. Prabhu Ram fell down unconscious. Both the accused boarded the bus and sped away from the scene of occurrence. PW6 Ramesh Kumar, conductor of the bus owned by Prabhu Ram had also witnessed the occurrence.

The FIR was lodged with the police on 7.9.2000 at about 2.30 a.m. The special report reached the Court of Judicial Magistrate on 7.9.2000 at 3.15 p.m. PW1 Dr. Raj Kumar alongwith other team of Doctors conducted the post mortem examination on the dead body of Prabhu Ram at about 2.00 p.m. on 7.9.2000. Having found contusion on the right and left side of the neck of Prabhu Ram, PW1 gave a finding that Prabhu Ram had died due to asphyxia on account of throttling. PW7 ASI Pal Chand having conducted the investigation laid final report as against both the accused.

On the side of the defence DW1 MHC Gurinderpal Singh was examined and the DDR register of Police Station Division No. 2 was marked to show that Constables were posted at Chakki Bridge for naaka duty on the day of occurrence. DW2 Sanjiv Sharma has deposed that he spotted the dead body of Prabhu Ram in his house on 6.9.2000 at about 3.30 p.m. DW3 Tarsem Singh, driver of the bus owned by Prabhu Ram has spoken to the fact that that no occurrence took place as projected by the prosecution, but he attended the cremation ceremony of Prabhu Ram. DW4 Dr. D.V. Pathania has spoken to the fact that except contusion found on the left and right side of the neck of Prabhu Ram, no other injury was found.

The trial Court having relied upon the ocular testimony of PW5 Kamal Parkash and PW6 Ramesh Kumar in the background of medical evidence of Dr. Raj Kumar returned a finding that an offence u/s 304 Part II of the IPC was made out as against the accused-Appellant.

Learned Counsel appearing for the Appellant would submit that there was an inordinate delay in lodging the FIR and despatching the same to the Court of learned Judicial Magistrate. The facts and circumstances of this case would go to show that PW5 was not an eye witness to the occurrence. PW6 also would not have witnessed the occurrence as no occurrence, as such, took place as per the evidence of DW3 Tarsem Singh. The trial Court has not given due importance to the evidence of DW3. It is his last submission that if at all the Court comes to a decision that an offence u/s 304 Part-II IPC is made out, the sentence may be substantially reduced.

PW5 Kamal Parkash and PW6 Ramesh Kumar have categorically deposed before the trial Court that accused-Appellant Sukhdev Singh having not responded to the request of deceased Prabhu Ram to take away the bus from the spot as the time was over, got down from the bus and throttled Prabhu Ram to death. PW1 Dr. Raj Kumar who conducted the post mortem examination has returned a finding that the death was due to asphyxia on account of throttling.

Of course, PW5 being the brother-in-law of deceased Prabhu Ram had not set the law in motion in time; PW6 Ramesh Kumar also has not chosen to give a complaint in time. PW5 Kamal Parkash was the only relative of Prabhu Ram who had to be with Prabhu Ram. PW6 Ramesh Kumar had not chosen to lodge any complaint as PW5 Kamal Parkash was very much present at the scene of occurrence and took charge of injured Prabhu Ram.

Of course, there is some delay in lodging the FIR. It is found that the FIR was registered only on 7.9.2000 at 2.30 a.m. There was about 12 hours delay in lodging the FIR. The investigating official had taken his own time to despatch the special report at 3.15 p.m. on the said day to the Judicial Magistrate.

Every delay in lodging the FIR or despatching the special report would not vitiate the trial. PW6 Ramesh Kumar has categorically stated that PW5 Kamal Parkash also joined him before the occurrence was unfolded. Even assuming for the sake of arguments that PW5 Kamal Parkash was not present at the scene of occurrence, there was no reason for PW6 Ramesh Kumar to come and depose that there was an occurrence in which Sukhdev Singh accused throttled Prabhu Ram and caused his death. Further, PW6 Ramesh Kumar was found to be the conductor of the bus owned by Prabhu Ram. Therefore, there is every reason for PW6 Ramesh Kumar to be present at the scene of occurrence. When ocular testimony is available on record, just because there was some delay in lodging the FIR and despatching the special report to the Court of Judicial Magistrate, the case of the prosecution cannot be thrown overboard. In the face of ocular testimony available on record, the delay in lodging the FIR and despatching the special report to the Court pales into insignificance.

Of course, PW6 would admit that two Constables were found at a distance. It is not as if the accused armed with some weapon attacked the victim and caused day-light murder. Therefore, the Constables who were present at the distance would not have cared about it. Even otherwise, for the inaction on the part of the Police Constables the case of the prosecution cannot be doubted.

DW3 Tarsem Singh was the driver of the bus owned by Prabhu Ram. He admits that Prabhu Ram died and he chose to attend the cremation ceremony, but the strange thing is that he deposed that he did not enquire as to how Prabhu Ram who was his Master passed away on 6.9.2000. Therefore, I do not find any truth in the testimony of DW3 Tarsem Singh who has come to speak on behalf of the accused. Likewise, the evidence of DW2 that he saw the dead body of Prabhu Ram in his house at about 3.30 p.m. on 6.9.2000, does not appear to be believable as the ocular witnesses have spoken to the fact that Prabhu Ram was rushed to the hospital immediately after the occurrence.

The prosecution has established that an offence u/s 304 Part II was made out as against Sukhdev Singh. The trial Court has rightly recorded conviction as against accused-Appellant Sukhdev Singh.

Learned Counsel appearing for the Appellant would submit that the trial Court has awarded a sentence of 10 years which was not proportionate to the nature of offence allegedly committed by Appellant Sukhdev Singh. He pleads for reduction in the matter of sentence awarded by the trial Court.

I find that there is some substance in the submission made by the learned Counsel for the Appellant as regards the sentence imposed by the trial Court.

In view of the above facts and circumstances, confirming the judgment of conviction recorded by the trial Court, the sentence imposed on Appellant Sukhdev Singh is reduced to 5 years R.I., but the fine imposed on Appellant Sukhdev Singh by the trial Court is maintained.

With the above modification in the sentence, the appeal fails and stands dismissed.

The Appellant is on bail. His bail bond stands cancelled. He shall surrender before the Chief Judicial Magistrate, concerned, within 15 days from the date of this Judgment. In default thereof, he shall issue non-bailable warrant and send the Appellant to prison to undergo the unexpired portion of his sentence.