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CASE NO.: Appeal (crl.)  1107 of 2007

PETITIONER: Subhash

RESPONDENT: State of Haryana

DATE OF JUDGMENT: 21/08/2007

BENCH: S.H. Kapadia & B. Sudershan Reddy

JUDGMENT: J U D G M E N T  

CRIMINAL APPEAL NO. 1107 OF 2007 (Arising out of SLP(Crl.) No.  3992 of 2006)

B.SUDERSHAN REDDY,J.

       Leave granted.  2.   This appeal by special leave is directed against the  judgment of the Punjab & Haryana High Court confirming  the conviction of the appellant under Section 392 read with  Section 397 IPC and the sentence of rigorous imprisonment  for a period of 7 years and under section 302 read with  Section 34 IPC, imprisonment for life and a fine of Rs.  10,000/-, in default of payment of fine to undergo further  two years rigorous imprisonment.  Both the sentences were  directed to run concurrently. The appellant was charged with  the offences for having robbed tractor and caused the death  of Raghbir Singh-deceased.  

3.      The prosecution story, briefly stated, is that on  9.10.1991 Raghbir Singh(deceased)  along with Mane Ram  (PW-8) after collecting ’Barma’ (an instrument for drawing  out water)  from Nand Lal (PW-5) resident of village Kailana  left for their village- Mandi at about 12 noon on a Swaraj  make tractor.  On the way when they reached at village  Pugthala they purchased half bottle of liquor from a liquor  vend. Raghbir Singh (deceased) purchased a nip of liquor  separately and carried it with him.  Subhash (appellant- accused) along with son of Basu Sardar and Jai Kumar met   Raghbir Sing (deceased) and Mane Rame (PW -8) near the  village Chamrara.  Son of Basu Sardar took the nip of liquor  from Raghbir Singh (deceased) and consumed the same.  Thereafter all accused persons went to the house of son of  Basu Sardar and again consumed illicit liquor. After  consuming illicit liquor they came back at the place where  they had met Mane Ram (PW-8) and Raghbir Singh  (deceased). An altercation took place among son of Basu  Sardar, Subash (appellant-accused) and Jai Kumar wherein  the son of Basu Sardar inflicted injury upon the head of   Subhash (appellant-accused) and fled away. Subhash  (appellant-accused) was brought to the village Pugthala in  order to get his wound dressed up from a doctor on the  tractor of Amar Singh being driven by Joginer Singh  (accused).  Thereafter Joginder (accused) took the tractor  towards village Bajana on the bank of canal.  When they  reached near the bridge of canal in the village Kasandi

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Joginder accused stopped the tractor on which the accused  persons started robbing of money from the pocket of  Raghbir  Singh (deceased).  It was about 8.00 P.M. Enraged  by the intervention of Mane Ram (PW-8) all the accused  persons caught hold of Mane Ram and pressed his neck and  threw him into the canal.  Thereafter  accused persons  caught hold of Raghbir Singh (deceased) by his legs and also  threw him into the same canal.  Raghbir Singh (deceased)  tried to catch hold of the grass grown on the bank of the  canal. Jai Kumar (accused) and Joginder Singh (accused)  gave leg blows on the face of Raghbir Singh and again  thrown into the water and he did not come out of the canal.  Mane Ram (PW-8) knew swimming and came out of the  canal after having covered a distance of three acres and  narrated the incident to Jai Singh a resident of village  Kasandi.  Thereafter, Mane  Ram (PW-8) along with Jai  Singh searched for Raghbir Singh (deceased) and the tractor  belonging to Amar Singh (PW- 6)  but they could not find  them. Then Mane Ram (PW-8) and Jai Singh went to village  Mandi.  It was about mid-night.  They narrated the  occurrence to  father of  Raghbir Singh (deceased). They  went to the city police station, Gohana. Police party along  with Mane Ram (PW-8) and Jai Singh reached at the place of  occurrence at about 10.00 A.M on 10.10.1991 and recorded   the statement of Mane Ram (PW-8).  Based  on the  statement of Mane Ram (PW-8) the Police Station  Gohana  issued first information report   and registered a P.S. Case  No.  259  on 10.10.1991 under Section 392 read with  Section 397 and 302 read with Section 34 IPC against the  appellant.    4.       After completion of the investigation, the police filed  charge sheet under Section 392 read with 397 IPC and  under Section 302 read with 34 IPC against all the accused  including the appellant.  The prosecution in all examined 11  witnesses (PW-1 to PW-11) and got marked  various  documents in evidence.   The statement of the accused  appellant under Section 313 Cr.P.C. was recorded in which  he took the stand that he was innocent and falsely  implicated of the charge leveled against him

5.      The learned Sessions Judge upon appreciation of  evidence available on record found the appellant guilty of  the offence punishable under Section 392 read with 397 and  302  read with 34 IPC and the same was affirmed by the   High Court.  

6.      Hence this appeal by special leave.  

7.      We have heard Shri D.P. Singh, learned counsel  appearing on behalf of the appellant-accused and Shri  Sandeep Sharma, learned counsel appearing for the State.   

8.      In order to consider as to whether the prosecution  established the charge against the appellant for the offence  punishable under Section 392 read with 397 and 302  read  with 34 IPC beyond reasonable doubt it is just and  necessary to appreciate the evidence available on record.    9.      In the facts and circumstances of the case, it is not  necessary to consider in detail the statements of all the  prosecution witnesses except PW-8. In our view, the  prosecution case entirely rests on the testimony of Mane  Ram ( PW-8) who is an independent  and impartial witness.  He deposed that the accused persons threw him and Raghbir

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Singh (deceased) into the canal after robbing money and the  tractor.  The relevant portion of his testimony is as under:  

"The accused started robbing of money from  the pocket of Raghbir (deceased).  On my  intervention, all the accused caught hold of me  and pressed by neck and threw me in canal.  It  was about 8 P.M.  After throwing me in the  canal, the accused caught hold of Raghbir  deceased by the  legs and also threw him in the  canal.  Raghbir deceased tried to catch hold of  the grass grown on the bank of the canal.   Thereafter, accused Joginder and Jai kumar  gave leg blows on the face of Raghbir deceased.   Thereafter Raghbir was again thrown in the  water and did not come out whereas I kept on  swimming with the flow of water and came out  of the canal after having covered a distance of  about three acres.  After having out of the  water I went to V. Kasandi. I had not seen the  tractor on the bank of the canal."

10.     The learned counsel for the appellant urged before us  that the prosecution fabricated the evidence to falsely  implicate the appellant.  The learned counsel for the  appellant further contended that the presence of PW-8 at  the scene of occurrence is highly doubtful.  This theory  which is now sought to be propounded is contrary to the  very defence set up by the appellant in the sessions case as  is evident from the cross examination of PW-8.  It was  suggested to PW-8 that he along with Raghbir (deceased) in  a drunken condition was present at the Kasandi bridge  (scene of occurrence)  and they were unable to control  themselves and Raghbir laid on the bank of the canal and  accidentally fell into the water and drowned. This suggestion  made to PW-8 that PW-8 along with Raghbir Singh  (deceased) was very much present at the scene of  occurrence completely negatives the submission now made  by the appellant’s counsel.  There is nothing on record to  doubt the presence of PW-8 at the scene of occurrence.   Nothing has been suggested to PW-8 as to why he should  have given false evidence against the appellant.  

11.     We also do not found any merit in the contention of the  learned counsel for the appellant that the no specific overt  act has such been attributed to the appellant and, therefore,  he is entitled to acquittal of the offence alleged against him.  PW-8, in clear and categorical terms in his evidence stated  that Joginder Singh all of a sudden stopped the tractor when  it had reached at the spot in between two canals near the  bridge of canal in village Kasandi. That all the accused  started robbing of money from the pocket of  Raghbir  (deceased) and when he intervened all the accused caught  hold of him and pressed his neck and he was thrown into the  canal.  That after throwing  PW-8 into the canal all the  accused caught hold of Raghbir (deceased) by his legs and  threw him into the canal.  Raghbir (deceased) tried to catch  hold of the grass grown on the bank of the canal but the  accused gave blows on the face of Raghbir (deceased) and  was again thrown into the water. Raghbir (deceased) did not  come out from the water.  

12.     The evidence and material available on record further  reveal circumstances to prove the guilt of the appellant: (1)  The first circumstance is the recovery of the dead body of

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Raghbir Singh (deceased) from the place of occurrence. (2)  The sub-Inspector Man Singh (PW-11)  recovered the  Tractor No. HR-06-8501  from the possession of the accused  persons which was the same tractor robbed by the accused.  (3)  The third circumstance is recovery of ’Barma’  by sub- Inspector Man Singh (PW-11)  from the possession of  Joginder Singh (co-accused)  in pursuance of his disclose  statement.

13.     The learned counsel vehemently contended that there  is no proper explanation forthcoming from the prosecution  for the delay in lodging the first information report and the  same casts a serious doubt on the case set up by the  prosecution against the appellant.  We are not impressed by  the submission as the evidence available on record reveals  the sequence of events leading to filing of first information  report.  The distance between the Kasandi bridge and Mandi  is about 10-12 kms. It is in the evidence of PW-8 that after  his coming out of the canal he went to village Kasandi and  met Jai Singh and narrated the whole story to him;  thereafter along with Jai Singh he returned to the scene of  occurrence and searched for Raghbir (deceased) and the  tractor but could not find them. Thereafter along with Jai  Singh he went to Mandi on his tractor and narrated the story  to the father of the deceased about the occurrence  who  reported the matter to the Sarpanch of the village.   Thereafter he along with Jai Singh went to police post Israna  who refused to lodge the report but informed the Gohana  police.  It is true that the distance between  the Kasandi  bridge and the police station Gohana is  5 kms. but  PW-8  and his evidence  had narrated  the sequence of events  which reveals the reasons for the delay, if any, in lodging  the first information report at police station Gohana. There is  nothing unnatural on the part of PW-8 in his first going to  Kasandi village nearby to the scene of occurrence and  informing Jai Singh about the incident and thereafter  returning to Kasandi bridge along with Jai Singh.  Having  found the deceased-Raghbir Singh and the tractor were  missing he along with Jai Singh went to Mandi village to  inform the father of the deceased. One does not expect Pw-8  to straight away first go to the nearest police station and  lodge the first information report even without informing the  near relatives of the deceased.  

14.     Be that as it may, it is not the case of the appellant  that after occurrence of the incident some deliberations took  place in order to falsely implicate the appellant in the case.  No suggestion of any enmity between the appellant and PW- 8 has been made. There is no reason to disbelieve the  sequence of events narrated by PW-8.    In such view of the  matter mere delay in lodging the first information report, in  the facts and circumstances of the case cannot be held to be  fatal to the prosecution case.  

15.     For all the aforesaid reasons we hold that the  prosecution has been able to establish the guilt of the  appellant beyond all reasonable doubt for conviction under  Section 392 read with 397 IPC for having robbed money and  tractor.  The sentence of rigorous imprisonment for a period  of 7 years for each of the offence under Section 392 read  with 397 IPC is accordingly upheld.  

16.     The question that falls for our consideration is whether

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the facts and circumstances and the evidence available on  record justify the conviction of the appellant under Section  302 read with 34 IPC for having caused death of Raghbir  (deceased)? The evidence available on record does not  suggest that there has been any intention of causing the  death of Raghbir (deceased).The case falls under Part II of  Section 304 IPC. The appellant committed the offence of  culpable homicide not amounting to murder.  The appellant  is accordingly convicted under Part II of Section 304 IPC and  sentenced to undergo rigorous imprisonment for 7 years.  The sentences to run concurrently.  

17.     It is brought to our notice that the appellant has  already served the sentence of 7= years rigorous  imprisonment.  Sentence already undergone is sufficient to  meet the ends of justice. He is accordingly directed to be  released forthwith, unless required in connection with any  other case.  18.     The appeal is accordingly allowed in part.