JUDGMENT 1. - The accused-appellant stands convicted and sentenced Under Section 304 Part-II, IPC to five years' rigorous imprisonment and a fine of Rs. 3,000/- in default of payment of fine to further rigorous imprisonment for one year by the judgment dated the 9th August, 1978, of the Additional Sessions Judge, Sri Ganganagar. The appellant was tried for the offence Under Section 302 IPC for committing the murder of Puranchand Sindhi on June 19, 1977, at 1.30 pm, at the residential house of the deceased by pushing him down from the roof of his house. 2. The prosecution case, in brief, was that the deceased, the accused and one Bhagirath all consumed wine. The deceased was the tenant of the accused in the house and was residing in a Chobara on the first floor of the house. After consuming the wine, he went to the roof of the house. According to the prosecution, the accused also came there and pushed the deceased down from the roof of the house to the ground. Puran Chand-deceased became unconscious and was immediately shifted to the hospital. He was at that time alive. He was attended to by Dr. S.S. Baxi. Puran Chand was in deep coma, both pupils were fully dielated and fixed, cornial reflex was absent. There was slight smell of alcohol from mouth. Blood tinged discharge was coming out of mouth. Respiration was jerky and shallow. The doctor ascertained the history of Puran Chand from his wife, who informed him that Puran Chand was taking alcohol on the roof of his house when the landlord came there and pushed him down Puran Chand died at the hospital and the doctor sent a letter to the police station, Kotwali. The first information report of the occurrence was lodged at the police station on June 19, 1977 at 5.30 pm by Govind Ram, brother of the deceased, A case Under Section 304 IPC was registered against the accused and investigation started The post-mortem examination of the dead body of the deceased was conducted by Dr. S.S. Baxi, the same day, at 6.50 pm According to him, the cause of death was coma and asphyxia due to head injury, which could have been the result of a fell or push from a roof of the house. S.S. Baxi, the same day, at 6.50 pm According to him, the cause of death was coma and asphyxia due to head injury, which could have been the result of a fell or push from a roof of the house. The doctor had noted the following injuries on the body of Puran Chand: (1) Heamatoma 12"x4"area on the whole of Rt. side of scalp-Blunt (2) Linear Abrasion 1" vertical just above the left laterial mollous Simple - Blunt" 3. After registering the case, Shri Tekchand, SHO, police station, Kotwali, deputed Veer Verdan, AST, to go the hospital where he held the inquest of the deceased. Shri Tekchand himself proceeded to the spot, inspected the site, prepared the inspection memo and took other proceedings. The accused was arrested. He was examined by the doctor, who found that he too had consumed liquor. 4. After investigation, the police filed a charge-sheet against the accused in the Court of Chief Judicial Magistrate, Shri Ganganagar, who committed him for trial to the Court of Sessions Judge Under Section 302 IPC. As aforesaid, the Sessions Judge framed the charge for the offence Under Section 302 IPC and recorded his plea to which the accused pleaded not guilty and claimed to be tried. 5. The prosecution examined as many as nine witnesses in support of its case. Thereafter, the statement of the accused was recorded Under Section 313 Cr.PC, in which he denied the prosecution allegations and stated that he had been falsely implicated. The deceased had consumed large quantity of liquor. He could not control himself add, therefore, himself fell down on the ground from the roof of his house. No witness in defence was examined by the accused. 6. The Additional Sessions Judge, by his judgment dated the 9th August, 1978, acquitted the accused for the offence Under Section 302 IPC but convicted him Under Section 304 Part-II IPC and sentenced to five years' rigorous imprisonment and a fine of Rs. 3,000/-, in default of payment of fine to one year's further imprisonment. Out of the fine to be realised, a sum of Rs. 2,500/- was directed to be paid to Smt. Kalawati wife of the deceased. 7. Aggrieved by the aforesaid judgment of the Additional Sessions Judge, the appellant has filed the present appeal in this Court. 8. I have heard Mr. M.L. Garg, counsel for the accused-appellant and Mr. S.K. Mathur. Out of the fine to be realised, a sum of Rs. 2,500/- was directed to be paid to Smt. Kalawati wife of the deceased. 7. Aggrieved by the aforesaid judgment of the Additional Sessions Judge, the appellant has filed the present appeal in this Court. 8. I have heard Mr. M.L. Garg, counsel for the accused-appellant and Mr. S.K. Mathur. Public Prosecutor, for the State. 9. The prosecution case against the accused rests on the evidence of PW 2 Ganesh and PW 3 Smt. Kalawati. The Additional Sessions Judge has not acted upon the evidence of Ganesh, who was the son of the deceased and a boy aged 8 years on the date of the incident The learned Additional Sessions Judge was right in not acting upon the evidence of Ganesh. From the preliminary questions, which were put to him, it transpired that he did not understand the sanctity of truth, he was not capable of understanding the questions and was not in a position to give proper answers. The learned Additional Sessions Judge was right in saying that it was most hazardous to act upon the evidence of such a witness. The case of the prosecution, therefore, stands on the testimony of Smt. Kalawati. She has stated that the deceased, the accused and one Chaudhary took alcohol on the day of the incident. Her husband Puran Chand - deceased came to the room where she was cooking food. He was followed by the accused Rikhi Ram. Rikhi Ram told the deceased to vacate the house. The accused took the deceased out of the room and lifted him and dropped him on the ground from the roof of the house She gave him water and called Govind Ram through her son. The deceased became unconscious. He was removed to the hospital and there he breathed his last. Her statement in the Court is slightly different from the version from in the first information report where the case was that the deceased was drinking wine on the roof itself when the accused came there and pushed him down from the roof on the ground. Dr. S.S. Baxi has stated that the earliest version given by Smt. Kalawati to him was that the deceased was taking wine on the roof when the accused came there and pushed him down from the roof on the ground. Dr. S.S. Baxi has stated that the earliest version given by Smt. Kalawati to him was that the deceased was taking wine on the roof when the accused came there and pushed him down from the roof on the ground. This slight variation in the story, however, does not affect the credibility of the witness The learned Additional Sessions Judge has accepted her testimony and I am in agreement with the learned Additional Sessions Judge that there is nothing in the evidence of Smt. Kalawati to hold her un-reliable. The discrepancy pointed out is not sufficient to throw away her evidence. Her evidence finds support from Govind Ram PW 4. Prem PW 5 and Magraj PW 6, who have stated that soon after the occurrence Smt. Kalawati had told them that the deceased was pushed down from the roof by the accused. Her testimony further finds corroboration from the evidence of the doctor, who has incorporated this version in his letter addressed to the police on June 19, 1977. The evidence of Smt. Kalawati establishes that the deceased was pushed down from the roof to the ground by the accused, which resulted in injuries on his head leading to his death in the hospital. 10. The conviction of the appellant for the offence Under Section 304 Part-II IPC has rightly been recorded by the learned Additional Sessions Judge and I do not find any reason to disturb the same. As regards the question of sentence, the counsel for the accused has contended that the accused has already under-gone sentence of over 14 months. He was arrested on June 19, 1977 and was directed to be released on bail on August 21, 1978. The circumstances appearing in the case show that the offence was not premeditated. The deceased and the accused both had taken wine. They were under the influence of liquor. Both were intoxicated. The accused was un-armed when, according to the prosecution, he went to the roof of the house where deceased was taking wine. The offence relates to the incident which took place in June 1977. It is over 9 years and it would not be in the interest of justice to send him back to jail after such a long time. The ends of justice will be fully met if he is sentenced to the imprisonment already under-gone by him, 11. The offence relates to the incident which took place in June 1977. It is over 9 years and it would not be in the interest of justice to send him back to jail after such a long time. The ends of justice will be fully met if he is sentenced to the imprisonment already under-gone by him, 11. In the result, the appeal of the accused-appellant is partly allowed. His conviction for the offence Under Section 304 Part-II IPC is maintained. The sentence of five years awarded to him is reduced to the one already under-gone. The sentence of fine of Rs. 3,000/-, in default of payment of fine to one month's further rigorous imprisonment is maintained. Out of the fine of Rs. 3,000/- to be realised from him, a sum of Rs. 2,500/- shall be paid to Smt. Kalawati, as directed by the Additional Sessions Judge. The counsel for the appellant prays for two moths' time to deposit the amount of fine. Two months' time is allowed to deposit the fine as prayed.Appeal partly allowed. *******