IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 322-DB of 2001 Dated of Decision:- September 02, 2009 Ishwar Singh ....APPELLANT VERSUS State of Haryana ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present:- Sh. Ashit Malik, Advocate and Sh. Ashish Aggarwal-II, Advocate for the appellant. Sh. S.S.Randhawa, Addl. Advocate General Haryana. ------ MEHTAB S.GILL, J. This is an appeal against the judgment/order dated 23.5.2001/24.5.2001 of the Addl. Sessions Judge, Kaithal, whereby he convicted Ishwar Singh son of Ran Singh under Section 302 IPC and sentenced him to undergo life imprisonment. He was directed to pay a fine of Rs.1,000/-, in default of payment of fine to further undergo R.I. for six months. The case of the prosecution is unfolded by the statement Ex.PA of Ram Karan, Manager, Mini Bank Cooperative Society, Sirsal, given to Rajesh Kumar, SHO, Police Station Pundri. 2 Criminal Appeal No. 322-DB of 2001 Ram Karan stated, that he was working as Manager in Mini Bank Cooperative Society, Sirsal for the last 4 years. In the Society, one Babu Ram son of Hari Ram, resident of Village Sirsal was also working as Watchman for the last about 16 years. His duty hours were from 5.00 p.m. to 9.00 a.m. Babu Ram used to sleep in the bank during duty hours in the night. On 26.11.98, Babu Ram came for duty at 5.00 p.m. All the officials had left the bank by that time. On 27.11.98 at 9.00 a.m. when Ram Karan came to the bank, he saw Babu Ram lying dead on a cot. His neck was cut by a sharp-edged weapon. A blood stained spade (Kassi) was lying near the dead body. Some unknown person had cut the neck of Babu Ram with the spade. Ram Karan went to Police Station Pundri, to record his statement after leaving Pala Ram peon and Mohinder son of Hari Ram near the dead body. On the basis of this statement, FIR Ex.PA/1 was recorded on 27.11.1998 at 10.30 a.m. and the special report reached the C.J.M., Kaithal on the same day at 2.45 p.m. The prosecution to prove its case brought into the witness box, Dr. R.K.Grover PW1, Hukam Chand PW2, Constable Rajbir Singh PW3, HC Sham Sunder PW4, HC Joginder Singh PW5, HC Lalit Mohan PW6, Constable Rishi Pal Draftsman PW7, Constable Subhash Chand PW8, Prem Chand Hooda PW9, ASI Rajinder Singh PW10, Constable Mohinder PW11, Biru PW12, Pala Ram PW13, Sukhdev PW14, Ram Karan PW15, Sewa Ram PW16, Joginder Singh PW17, Ganga Bhushan PW18, Constable Baljit Singh PW19, Constable Joginder Singh PW20, Constable Har Pal Singh PW21, Mohinder PW22, Inspector Mange Ram PW23 and Inspector Rajesh Kumar PW24. 3 Criminal Appeal No. 322-DB of 2001 Learned counsel for the appellant has argued, that Mohinder PW22 in FIR Ex.PA/1 and Inquest report Ex.PA/2 has said nothing regarding he seeing the deceased with the appellant. Sewa Ram PW16, the other eye witness regarding the last seen evidence stated, that he recognized the voice of the appellant, but nowhere has stated that he saw the deceased with the appellant. It has come in evidence, that the fields of appellant Ishwar Singh are on the same side of that of the deceased. It was natural for him to come from the same side as the appellant. Joginder Singh PW17 before whom the extra judicial confession was made, belongs to Village Makinpura, which was 26 K.Ms. away from the village of the appellant i.e. Village Sirsal. There was no need for the appellant to come to Joginder Singh PW17 and make an extra judicial confession, as Joginder Singh was not previously known to him, nor Joginder Singh was such an important person, who could save him. Hukam Chand PW2, from who the blood stained clothes recovered, did not support the prosecution case. The Fingerprint Report Ex.PJ/1 has not gone in favour of the prosecution. The bottles and glass tumblers, which were sent to the Forensic Science Laboratory, as per the report, the fingerprints did not match with that of the appellant. Learned counsel for the appellant has forcefully argued, that at the most, a case under Section 304 Part II IPC can be made out against the appellant. It was a sudden fight over getting of more liquor. There was no previous enmity between the deceased and the appellant. The murder was not premeditated. In fact it seems that both the deceased and the appellant were friends. They belonged to the same village i.e. Village Sirsal. 4 Criminal Appeal No. 322-DB of 2001 Mohinder PW22 has stated in his testimony that deceased was a hot headed person. Learned counsel for the State has argued, that both Sewa Ram PW16 and Mohinder PW22 have categorically stated, that they saw the deceased with the appellant. Mohinder PW22 stated, that he saw both of them near the liquor vend. The extra judicial confession made before Joginder Singh PW17 inspires confidence. No case under Section 304 Part II IPC is made out. It was a premeditated murder. We have heard the learned counsel for the parties and perused the record with their assistance. Sewa Ram PW16 in his testimony before the Court has stated, that his fields are situated near the Village. He used to go to protect his crop from cows and other stray animals. On 26.11.98, he had gone to the fields at night and at about 10.30 p.m. when he passed near the Mini Bank, a person passed near him, but he could not recognize him, he asked him as to who he was, he recognized his voice, it was the voice of appellant Ishwar Singh. On the next day i.e. on 27.11.98 he told the police regarding meeting the appellant in the night and recognizing his voice. In cross- examination, he has stated, that appellant crossed him from in front, when he was about 100 yards from the Mini Bank. He has categorically stated, that it was appellant Ishwar Singh. Similarly Mohinder PW22 has stated that, on 26.11.98 at about 7.30 p.m., he had gone to Jai Bhagwan for taking liquor. Jai Bhagwan was running an unauthorized liquor shop. He purchased half a bottle and then started having liquor there. Thereafter he saw deceased Babu Ram and 5 Criminal Appeal No. 322-DB of 2001 appellant Ishwar Singh coming to the illegal liquor shop. They purchased one liquor bottle and left the place. When they reached near “Mohalla Jhinwars”, he saw appellant Ishwar Singh and Babu Ram taking liquor in a steel tumbler. He left the place and next day he heard, that his brother had been murdered in the night. Both these witnesses Sewa Ram PW16 and Mohinder PW22 have stood the test of cross-examination. They are trustworthy and inspire confidence. They belong to the same village as of the appellant and it was natural for them to be in the village at night time. Appellant made an extra judicial confession before Joginder Singh PW17, where he asked Joginder Singh PW17 to save him. He called Joginder Singh “Tau” (elder brother of father). Appellant Ishwar Singh told Joginder singh PW17, that he had taken liquor with the deceased on 26.11.98. When the liquor had been finished, he asked the deceased to get more liquor, as he wanted to have more. Deceased then started abusing the appellant under the influence of liquor. Thereafter a fight ensued, where he (Ishwar Singh) gave 2/3 Kassi blows to the deceased. This witness has further stated, that on the night of 29.11.98, appellant Ishwar Singh stayed with him and on the next day, he produced him before Inspector Mange Ram of Police Station, Pundri. This extra judicial confession has been made before Joginder Singh PW17 by the appellant, to a person to whom he respected as his father’s elder brother. From the last seen evidence as brought forward by Sewa Ram PW16 and Mohinder PW22 coupled with the extra judicial confession made before Joginder Singh PW17, we have no hesitation in concluding, that 6 Criminal Appeal No. 322-DB of 2001 appellant killed Babu Ram. He gave 2/3 Kassi blows to Babu Ram, which proved fatal. It is a case of sudden fight, where Babu Ram as stated by Joginder Singh PW17, started abusing the appellant on a trivial matter, as appellant wanted to have more liquor. There is no previous enmity between both the deceased and the appellant. They both were friends. They have taken liquor together. They belong to the same village i.e. Village Sirsal. Mohinder PW22 has stated, that deceased was a hot headed person. The case of the appellant falls within the ambits of Section 304 Part II IPC culpable homicide not amounting to murder and not under Section 302 IPC. Sentence of appellant is reduced from life imprisonment to seven years R.I. Fine shall remain intact. With the above observations and discussion, appeal of the appellant is dismissed. (MEHTAB S.GILL) JUDGE (JITENDRA CHAUHAN) September 02, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO