IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No.: 486 of 1996 Judgment reserved on: 19.4.2010 Date of decision: 31.5.2010 State of Himachal Pradesh …Appellant Versus Jeet Ram and another. …Accused/Respondents _________________________________________________________________ Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice Sanjay Karol, J. Whether approved for reporting? For the appellant: Mr. Vivek Singh Thakur, Addl. Advocate General. For the respondents: Mr. Nimish Gupta, vice Mr. Rajnish Maniktala, Advocate. Per Deepak Gupta, J 1. This appeal by the State is directed against the judgment dated 29.1.1996 delivered by the learned Additional Sessions Judge, Mandi, in Session Trial No.9 of 1995, whereby he acquitted the accused of having committed the murder of deceased Khub Ram, but was convicted of having committed an offence punishable under Section 304(II) IPC. There is no appeal by the accused and he has already undergone the sentence passed upon him. 2. At the outset it may be noted that the accused are son and the widow of deceased Khub Ram. The prosecution version is that Khub Ram use to ill-treat his wife Padma Devi and on 14.9.1994 he had an altercation with his 2 wife and then her son Jeet Ram accused snatched the drat from Khub Ram and gave a blow on his head, which resulted in the death of deceased Khub Ram. 3. The prosecution story is that PW-10 Padam Nabh made a statement under Section 154 Cr.P.C. to the effect that on 10.9.1994 he had come to his village. On the night of 14th September, 1994, his uncle Khub Ram and Chint Ram started cutting wood. In the evening, all these people cooked meat and at about 3.30 p.m. Jeet Ram accused, son of Khub Ram, his mother Padma Devi accused, Dahmeshwar and Chandravati all came to watch television in their house. He and his sister Geeta Devi were also watching T.V. He heard a conversation between Jeet Ram and Padma Devi to the effect that they will teach a lesson to Khub Ram that day. Padam Nabh told Jeet Ram that Khub Ram is his father and he should not talk like that. Then after watching television they went home at about 9.30 p.m. Khub Ram and Chint Ram were drinking liquor. Then they had food and at about 11.00 p.m. Khub Ram also went to his house. Padam Nabh and Chint Ram watched T.V. for sometime. At about 12 mid night accused Padma Devi knocked at the window of the house of Padam Nabh and shouted for Chint Ram. Padam Nabh and Chint Ram got up and switched on the light. They opened the door and Padma Devi was standing outside and told them that her husband Khub Ram was beating her and a fight took place. During this fight Jeet Ram gave a blow of the blunt side of a drat on the head of Khub Ram and Khub Ram was lying unconscious near the stairs. These two persons did not 3 accompany Padma Devi, but instead went to the house of their Uncle Beli Ram. They woke Beli Ram and told him the entire story. Then they went on to call Paras Ram but they saw Padma Devi and Chandravati coming from that side, who told them that Paras Ram was not at home at that time. Chandravati on the asking of Beli Ram said that Padma Devi had an altercation with Khub Ram and Jeet Ram had given a drat blow to Khub Ram. Then Padam Nabh, Beli Ram, Chint Ram and Girdhari Lal etc. reached the spot and saw that Khub Ram was lying next to the stairs. He was covered with blood and taking his last breath. Thereafter they went to report the matter to the police. On the basis of this report, F.I.R. Ext.PW-4/B was recorded. Body of Khub Ram was sent for post mortem and after investigation, challan was filed against the accused. 4. There is no manner of doubt that Khub Ram was killed. PW-10 while appearing in the witness box repeated what he has stated in his statement Ext.PW-4/A. His statement does not appear to be plausible. Why would Jeet Ram and his mother talk in front of lot of people that they are going to kill Khub Ram. If this talk had taken place then Padam Nabh and his sister Geeta Devi would have warned Jeet Ram. Another reason to doubt the credibility of this witness is that after Padma Devi called him and Chint Ram, they did not go to the house of Khub Ram, who was living next door and was his uncle, but went to the house of Beli Ram and from there also they went to the house of Paras Ram but met Chandravati and Padma Devi on the way. 4 Thereafter, they gathered other villagers and then went to the house of Khub Ram. This is unnatural conduct. 5. Admittedly, Khub Ram and Chint Ram had consumed lot of liquor. In fact, PW-10 admitted that Jeet Ram was sent by Khub Ram to bring bottle of liquor. He also admitted that Khub Ram did not say anything to Jeet Ram in his presence. This witness in his statement to the police Ext.PW-4/A had stated that Padma Devi told him that Khub Ram was giving beatings to her and Jeet Ram snatched a drat from the hands of Khub Ram and gave a blow of the same on his head. He admitted in the cross-examination that before making statement to the police, he had not told this fact to any person. This makes his statement totally unreliable. If Padma Devi had come to his house and told him this fact, he would have definitely told the same to his uncle Beli Ram and thereafter to Girdhari Lal and other villagers. Therefore, this makes the statement of this witness highly unreliable. When asked why he did not visit the house of Khub Ram, the witness stated that Chint Ram told him that Khub Ram may be alive or dead and they should not go to the house of Khub Ram. This is highly unnatural behaviour for a close relative. He also admitted that Khub Ram had a television in his house, therefore, the question of Padma Devi and Jeet Ram accused coming to the house of this witness to watch T.V. does not arise. They may have come to sit with relatives but could not have come to watch the television. They went home at about 9.00 p.m and Khub Ram left for his house at 10.00 p.m. At mid night Padma Devi accused came and told them that Khub 5 Ram was quarrelling and by mistake he had been given a drat blow by Jeet Ram. Then she requested him and Chint Ram to go to the spot, but they went to the house of Beli Ram and then went to call Paras Ram. According to him on enquiry by Beli Ram, Padama Devi told him that Khub Ram was abusing her and the injury was caused by her son. 6. Beli Ram was examined as PW-15. According to him at about 12.00 mid night Chint Ram and Padam Nabh came to his house and told him the entire story. He asked them to call Paras Ram and in the meantime Padma Devi and Chandravati met them. They all returned to his house. According to him Chandravati told him that Khub Ram came home in a drunken state and an altercation took place between him and Padma Devi since Khub Ram threatened to set the house on fire. In the meanwhile, Jeet Ram snatched the drat being carried by Khub Ram and gave a blow on the head of Khub Ram. His version is totally different to that of Chint Ram, who had stated that it was accused Padma Devi who had made an extra judicial confession in front of Beli Ram. 7. Even if the prosecution version is taken to be true, it is apparent that Khub Ram was totally drunk and had an altercation with his wife and threatened to kill her. In these circumstances the son caught hold of drat and gave a blow to his father. This is not a case of premeditated homicide. There is no eye witness to the account and, therefore, even if the statements of prosecution witnesses are to be accepted then Khub Ram was either setting fire to his house or having 6 altercation with his wife. The son only acted to protect his mother. He gave only one blow and it is clear that his intention was not to kill his father. 8. Therefore, there is no merit in this appeal and the accused cannot be convicted for having committed an offence punishable under Section 302 IPC. 9. In view of the above discussion, the learned trial Court was fully justified in acquitting the accused for the offence under Section 302 IPC. It rightly held the accused guilty of having committed an offence under Section 304(II) IPC. We find no error in the judgment of the learned trial Court. The appeal is accordingly dismissed. The bail bonds furnished by the accused are discharged. ( Deepak Gupta ) Judge May 31, 2010. ( Sanjay Karol) (VT) Judge. 7