JUDGMENT Mr. Jitendra Chauhan, J.:- This appeal is directed against judgment and order dated 12/13.9.2000, whereby the learned Additional Sessions Judge, Sirsa (hereinafter referred to as the ‘trial Court’) convicted the appellant for the offence under Section 304, Part-II of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.10,000/- or in default of payment of fine, to undergo further rigorous imprisonment for six months. 2. Brief facts of the case are that on 30.8.1993, at about 5.00 p.m., Jagdish Lal (since deceased), a young man of 28 years of age, resident of village Ferozabad, boarded the bus bearing registration No. HYN-6351 for going to Rania. Harbans Lal son of Lakshman Ram Kamboj was also with him. Harbans Lal and Subhash Chander, Munshi, with the local fish contractor informed complainant Gobind Ram, father of the deceased, that his son Jagdish Lal engaged in a quarrel over ticket with the Conductor (Paramjit Singh, appellant) of the bus and they had exchanged hot words. The conductor pushed Jagdish Lal out of the bus, which was in motion, as a result of which, Jagdish Lal suffered injuries on his person. Jagdish Lal, was removed to the General Hospital, Rania, from where he was referred to the Medical College and Hospital, Rohtak. He succumbed to his injuries on 31.8.1993 at noon time. The FIR was registered and the matter was investigated. Inquest proceedings were conducted on the dead body of Jagdish Lal. The doctor gave an opinion that death was the direct result of shock caused by the head injury which was sufficient to cause death in the ordinary course of nature. 3. The accused-appellant was challaned and produced before the Court to face trial. He was charge-sheeted for the commission of an offence punishable under Section 304 of the Indian Penal Code, to which the accused-appellant pleaded not guilty and claimed trial. 4. In support of its case, the prosecution examined as many as 13 witnesses, viz., Dr. Narinder Singh as PW1, Dr. He was charge-sheeted for the commission of an offence punishable under Section 304 of the Indian Penal Code, to which the accused-appellant pleaded not guilty and claimed trial. 4. In support of its case, the prosecution examined as many as 13 witnesses, viz., Dr. Narinder Singh as PW1, Dr. B. L. Gupta as PW2, Ramesh Kumar, Clerk, Haryana Roadways, Sirsa as PW3, Dharam Pal, Duty Clerk as PW4, Subhash Chander as PW5, Harbans Lal as PW6, Gobind Ram as PW7, Ganesh Dutt as PW8, Gopal Singh as PW9, SI Jai Kishan as PW10, Dharam Pal, Chief Inspector, Haryana Roadways, Sirsa as PW11, Inderjit Draftsman as PW12 and Rameh Kumar, Ex.ASI as PW13. 5. PW1-Dr.Narinder Singh conducted autopsy on the dead body of Jagdish Lal and had discovered haematoma of the size of 7 cm x 8 cm on removing the scalp. On further dissection, he revealed clotted blood in the brain and the cavity being full of blood. PW1 also stated that the cause of death was head injury and shock. 6. Subhash Chander, PW5, was working as Munshi with the Fish Contractor at Ottu and is a very important witness in this case. He stated that on 30.8.1993, at 5.30 p.m., he was present on the main road of village Ottu and has specifically testified that accused-appellant Paramjit Singh had pushed a person called Jagdish Lal out of the bus, who suffered injury on his head. PW5 further stated that Jagdish Lal was removed to the Hospital by him with the help of Harbans Lal PW. 7. Harbans Lal, PW6, has stated that the bus had started from Sirsa and both of them (he and the deceased Jagdish Lal) had purchased ticket for Ottu. He further stated that they learnt at Ottu that they had purchased an extra ticket from the Conductor and he insisted on returning it to him. PW6 further stated that the driver of the bus put the vehicle into motion, but deceased Jagdish Lal insisted on boarding the moving bus and he followed the bus by running behind it. He further stated that there was a sharp turn after crossing the bridge of Ghaghar river and as the bus had negotiated the turn, the accused-appellant, Paramjit Singh pushed Jagdish Lal, the deceased, out of the moving bus, as a result of which, he suffered fatal injuries on his head. He further stated that there was a sharp turn after crossing the bridge of Ghaghar river and as the bus had negotiated the turn, the accused-appellant, Paramjit Singh pushed Jagdish Lal, the deceased, out of the moving bus, as a result of which, he suffered fatal injuries on his head. This witness also stated that Jagdish Lal was removed to the Civil Hospital, Rania with the help of Subhash Chander PW. 8. The complainant, Gobind Ram, PW7, is the father of the deceased. He stated that he was informed at his residence on 30.8.1993, at about 6.00 p.m., by some person that his son Jagdish Lal had been pushed out of the bus by the Conductor near Ottu Head. 9. PW8 Ganesh Dutt ASI Incharge PP MCH Rohtak. On receipt of rukka, he conducted inquest proceedings on the dead body of Jagdish and prepared inquest report Ex.PB. 10. PW9-Gopal Singh was the driver in command of bus bearing registration No. HYN-6351 on 30.8.1993. He testified that the accused-appellant was indeed conducting the bus on that day. 11. PW13-ASI Ramesh Kumar had investigated the matter. 12. When examined under Section 313 of the Code of Criminal Procedure, the accused-appellant alleged that Jagdish Lal, the deceased, was not in his bus nor he pushed him out of the bus. He has further alleged that PW Harbans Lal was not in the bus and that he has been falsely implicated in this case and some unknown vehicle had hit the deceased. 13. The accused did not lead any defence evidence. 14. The learned trial court convicted and sentenced the accused-appellant as referred in para 1 of this judgment. 15. The present appeal was admitted on 22.09.2000. 16. Learned counsel for the appellant has submitted that the presence of eye witness Subhash Chander, PW1, at the scene of occurrence is highly doubtful. He has further argued that it is highly improbable that Subhash Chander, PW5, could witness occurrence which took place inside the bus while sitting in his office situated at a distance of 1 ½ Killa. 17. Learned counsel has further submitted that Harbans Lal, PW6, has stated in his cross-examination that he did not state before the police that Subhash, PW1, told him that the conductor pushed Jagdish out of the bus. Learned counsel has further stated that it was an improvement made in the statement and same deserves to be rejected. 17. Learned counsel has further submitted that Harbans Lal, PW6, has stated in his cross-examination that he did not state before the police that Subhash, PW1, told him that the conductor pushed Jagdish out of the bus. Learned counsel has further stated that it was an improvement made in the statement and same deserves to be rejected. Learned counsel has further submitted that the statement of this witness was duly confronted and also got proved from the Investigating Officer, Ramesh Kumar, PW13. According to him, there were 30-35 passengers in the bus at that time and the place of occurrence where Jagdish Lal fell is about 1½ killa away from the place where he alighted from the bus. Learned counsel has referred to the statement of Ramesh Kumar, PW13, who has categorically stated in his cross-examination that the office of fisheries Contractor is at a distance of 100 yards from the main road. The main road is not visible while sitting in the office or verandah of fish contractor. Thus, learned counsel argued that the presence of Subhash Chander, PW5, is wholly doubtful at the scene of occurrence. Learned counsel has further submitted that the eye witnesses account is totally false, fabricated and concocted. As per the statement of Subhash Chander, PW5, an eye witness to the occurrence, Gobind Ram, PW7, father of the deceased came to the hospital in his presence. However, in cross-examination he admitted that he did not state before the police that Gobind Ram, father of deceased, Jagdish Lal, came to the hospital in his presence. Learned counsel submits that Gobind Ram arrived at the hospital on 30.8.1993 at about 7.00 P.M. and was fully apprised of the occurrence in detail regarding the pushing of the deceased from the moving bus. 18. Learned counsel has further submitted that there is an inordinate and unexplained delay of 41 hours in recording the first version of the prosecution. 19. Learned counsel has further submitted that from the time of occurrence till the inquest proceedings were completed, the case was of road accident, however, after a delay of 41 hours, statements of Subhash Chander and Gobind Ram were recorded on 1.9.1993 and the version that the appellant pushed deceased Jagdish Lal from the moving bus was introduced. 20. 19. Learned counsel has further submitted that from the time of occurrence till the inquest proceedings were completed, the case was of road accident, however, after a delay of 41 hours, statements of Subhash Chander and Gobind Ram were recorded on 1.9.1993 and the version that the appellant pushed deceased Jagdish Lal from the moving bus was introduced. 20. Learned counsel has further argued that the conduct of the eye witnesses Subhash Chander, PW5, and Harbans Lal, PW6, is wholly suspicious. Both these witnesses have admitted that they neither informed the parents of the deceased, Jagdish, nor visited to his house though the house is located at a distance of 10-15 kms. from the house of the eye witnesses. 21. Learned counsel has lastly argued that IO Ramesh Kumar has not given any explanation for not recording the statement of prosecution witnesses till 1.9.1993. In the alternative, the counsel submits that he be given the benefit of provisions of Section 361 Cr.P.C. 22. On the other hand, learned counsel for the state has submitted that the case of prosecution stands proved beyond reasonable doubt. Prosecution witnesses Subhash Chander and Harbans Lal were not known to the appellant earlier, therefore, there was no reason for them to falsely implicate the appellant. 23. I have heard learned counsel for the parties and perused the record with their able assistance. 24. The case of the prosecution is that the deceased alongwith Subhash Chander, PW5, and Harbans Lal, PW6, were travelling by bus No. HYN-6351 of which the appellant, Paramjit Singh was the conductor. They were returning from Sirsa to their village Firozabad. Harbans Lal bought the ticket for himself whereas Jagdish Lal deceased bought two tickets for both of them. On realizing that they had purchased three tickets instead of two, they wanted to return one ticket to the conductor which the appellant did not accept. On the insistence of Jagdish Lal, the appellant gave a push to him from the moving bus which was witnessed by Harbans Lal, PW6, a co-passenger. The occurrence was witnessed by Subhash Chander, PW5, Munshi with the office of fish contractor who was sitting in his office situated on the main road at Ottu. 25. The Investigating Officer, Ramesh Kumar, PW13, has also supported the case of the prosecution, however, he has stated that it was not believable that Subhash Chander, PW5, could witness the occurrence. 26. 25. The Investigating Officer, Ramesh Kumar, PW13, has also supported the case of the prosecution, however, he has stated that it was not believable that Subhash Chander, PW5, could witness the occurrence. 26. However, there is nothing on record to discard the assertion of Harbans Lal, PW6, as he was a co-passenger and he witnessed the occurrence. Though no explanation has come as to why he kept silent about the occurrence upto 1.9.1993. The presence of Harbans Lal, PW6, in the bus is natural and probable. Copy of MLR Ex.PL proves that Harbans Lal PW6 brought Jagdish Lal to the Civil Hospital on 30.8.1993 at 4.00 P.M. As the appellant was not previously known to Harbans Lal, PW6, it cannot be said that he was interested in getting the appellant falsely roped in the instant case. 27. Admittedly, the case of the prosecution is that a quarrel ensued between the appellant and the deceased, Jagdish Lal, on account of return of an extra ticket purchased by him. Keeping this factual aspect in view, the appellant was justified in not accepting the same and upon the insistence of the deceased for return of the amount, resulted into an altercation. In such a situation, it is quite possible that the deceased received a push from the appellant. However, the appellant also did not have any personal enmity against the deceased. However, in the face of the statement of co-passenger, Harbans Lal, PW6, the case of the prosecution is proved to the extent that the appellant gave a push to deceased Jagdish on account of which Jagdish Lal fell down from the moving bus and suffered head injury as a result of which he succumbed to his injuries. 28. Therefore I see no illegality or perversity in the judgment and order passed by the learned trial Court. Accordingly, the present appeal is dismissed. The conviction of appellant Parmajit Singh is maintained. 29. However, the question that warrants consideration in the instant case is if it is a proper case wherein the appellant could be released on probation? 30. From the facts on record it is made out that the occurrence took place on account of return of extra ticket inadvertently purchased by deceased Jagdish Lal. 29. However, the question that warrants consideration in the instant case is if it is a proper case wherein the appellant could be released on probation? 30. From the facts on record it is made out that the occurrence took place on account of return of extra ticket inadvertently purchased by deceased Jagdish Lal. To that extent, the deceased was not justified in purchasing the extra ticket without verifying from the co-passenger, which ultimately led to an altercation as a result of which Jagdish Lal lost his life. 31. The appellant remained in custody for 11 days and suffered agony of protracted trial for more than 16 years. He is not a previous convict and has not misused the concession of bail. He is a Haryana Government servant. In his statement recorded on 13.9.2000, the appellant has stated that he has five children, wife and old aged parents to support. 32. Keeping in view peculiar facts and circumstances of the case and reformative trend of modern penology, the present case eminently is a fit case in which the appellant deserves to be released on probation. 33. Keeping in view the facts and circumstances, nature of the offence, character and antecedents of the accused-appellant, he is ordered to be released on probation of good conduct under section 4 of the Probation of Offenders Act, on the following conditions:- (1) He shall execute a bond for good behaviour with two solvent sureties in a sum of Rs.25,000/- and the bond shall be executed before the trial Court within one month from today. (2) The said bond shall be in force for a period of two years. (3) He shall be subject to the supervision of the Probation Officer and subject to the conditions laid down in the Probation of Offenders Act. 34. As appellant has been released on probation this may not affect his service career in view of section 12 of the Probation of Offenders Act. 35. With the above modification in the sentence, this appeal is dismissed on merits. -----------0.K.B.0------------