1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 95 of 1993. Date of decision: 14.03.2008 ____________________________________________________________ State of H.P. Appellant. Versus- Ravinder Kumar and another Respondents. ___________________________________________________________________ Coram Hon’ble Mr. Justice Surjit Singh, J. Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1?. No For the appellant : Mr. P.K.Sharma, Additional Advocate General . For the respondent: Mr. G. R. Palsra, Advocate. _________________________________________________________ Surjit Singh, J. (oral). This appeal by the State is directed against the judgment dated 19.11.1992 of the Sessions Court whereby respondents Ravinder Kumar and Bir Singh who were charged with and tried for an offence, punishable under Section 302 read with Section 34, I.P.C. have been convicted of offence under Section 304 (second part) of I.P.C. and sentenced to under-go rigorous imprisonment for seven years and to pay a fine of rupees 5000/- each. The State has appealed for converting the conviction from 304 (second part) I.P.C. to 302 I.P.C. and awarding suitable punishment to the respondents. Allegations on which the respondents were put on trial were like this: Deceased Khushi Ram had a brother named Harnam Singh. Respondent Ravinder Kumar and Harnam Singh were on inimical terms. Whether reporters of the Local papers are allowed to see the judgment? 2 On 9th November, 1990 deceased Khushi Ram had gone to the house of a neighbour named Roshan Lal to watch the news which were telecast at 8.15 P.M. His son Rajeev Kumar alias Sonu (PW3) had also gone to the house of said Roshan Lal. It appears that around 8.30 p.m, deceased Khushi Ram after watching the news came out from the room of Roshan Lal into his verandah, while his son PW3 Rajeev remained inside the room to watch Chitrahar programme. PW3 Rajeev Kumar while inside the room, where the Television set was placed, heard the sound of movement of foot steps in the verandah of Roshan Lal’s house. He came out and saw that his father deceased Khushi Ram was being beaten up by respondent Ravinder Kumar while the other respondent Bir Singh was standing at a short distance. Bir Singh respondent asked Ravinder to kill (Mar De) Khushi Ram, upon which Ravinder Kumar took out a dagger and dealt a blow in the abdomen of the deceased as a result of which he fell on the floor of the verandah instantaneously. Respondents thereafter ran away from the spot. Rajeev Kumar raised alarm, upon hearing which Sanjay (PW4) who was also watching the television came out. The wife of the deceased PW6 Vidya Devi also heard the cries of PW3 Rajeev Kumar and she too came out. They both saw the two accused running away in the direction of their houses. Khushi Ram was taken to Kangra Hospital immediately where he was declared brought dead. Matter was reported to the Police. Police conducted the inquest. Dead body was subjected to post mortem examination by PW1 Dr. Gayatri Mahajan who recorded the following observations:- . “The deceased was an average built male, measuring 5’ 7” wearing grey coloured pant, stained with blood at waist, blue stripped underwear, light brown shirt and sleeveless sweater. The left side of the shirt bears a cut mark with surrounding area stained with blood. Rigormortis is present. 3 There is wound 2 cm above the external iliac spine on the left side. The length of the wound was 4 cm breadth 3 cm, margins inverted at the entry and they were well defined. No bruises or ecchymosis around the wound. Aloop of gut seen coming out of the wound. No foreign body was present on the wound. On opening the wound the underlying structure inspected showed sheath and muscles were cut with well defined margins and measured about 8 cm x 5 cm. There was haemotoma in the surrounding muscles. There was huge collection of blood in the peritoneum and retro peritoneum area. There was injury in the spleen at the lower end and suprolateral margins. Injury was well defined 2 cm x 1 cm at lower and 31/2 cm x 2 cm in the supro-lateral part. There was perinephric haemotoma in the left. Mesentry in the left side was torned about 4 cm and vessels injured. There was also injury to the descending colon about 4 cm x 3 cm.” The Doctor opinioned that the injury had been caused by stabbing and the probable time gap between the death and the post mortem was twenty-four to thirty-six hours. Post mortem was conducted at 10.30 a.m. on 10-11-1990 while the incident had taken place at 8.30 p.m. on 9-11- 1990, say about fourteen hours prior to the conduct of the post mortem examination. Trial Court after recording the evidence of the prosecution concluded that there was no evidence of the alleged motive and also there was no evidence of any pre-meditation and only a single blow had been given and thus, it was not a case of murder but culpable homicide not amounting to murder punishable under Section 304 (second part) I.P.C. 4 Learned Additional Advocate General has taken us through the evidence of the prosecution. We find no evidence of any motive or any previous enmity between the deceased and the respondents. A reading of the F.I.R. Exhibit-P4 shows that when PW3 Rajeev Kumar came out on hearing the sound of foot-steps, he saw respondent Ravinder having a scuffle (Hathapai) with his father meaning thereby that the two were fighting. It was in the course of such fight that Ravinder Kumar, on being instigated by Bir Singh, took out the knife and stabbed the deceased in the abdomen. These facts and circumstances suggest that it was not a case of pre-meditated killing but the deceased and respondent Ravinder Kumar happened to have a quarrel and scuffle, probably all of a sudden and in the heat of passion, Ravinder Kumar on being exhorted by his co- accused Bir Singh, gave a knife blow to the deceased. In view of the above said position, we do not think this to be a fit case for converting the conviction of the respondents from 304 (second part), I.P.C.to 302, I.P.C. Consequently the appeal is dismissed. (Surjit Singh) Judge. (Surinder Singh) Judge. March 14, 2008. (bm)