Judgment Jora Singh, J. 1 Narender alias Langra resident of village Rohna, Distric Sonepat was tried by the Court of Session for committing the murder of Jagbir alias Jaggu on 22.10.2001 in the area of village Rohna. Vide judgment and order of sentence dated 10.4.2003 passed by Additional Sessions Judge, Sonepat, in Sessions Case No. 161 of 18.12.2002 arising out of FIR No. 213 of 26.2.2001 under Section 302 IPC at Police Station Kharkoda. Narender @ Langra was convicted under Section 302 IPC and was sentenced to undergo imprisonment for life and to pay Rs. 10,000/- as fine. In default of payment of fine he was further directed to undergo R.I. for a period of three years. 2 Prosecution story, in brief, is that Suresh Kumar was owning a shop situated near main Bazar, Kharkoda. His younger brother Jagir alias Jaggu was unmarried and used to take liquor. On 22.10.2001, Jagbir had gone to his fields and remained in the fields. On 23.10.2001, Suresh Kumar in the morning had gone to his fields then dead body of Jagbir alias Juggu was found lying in the drain behind the room of the tubewell in the fields of Dharam Pal. They had no enmity in the village. 3 His nephew Rejesh was summoned to the spot and was deputed to guard the dead body. Suresh Kumar had gone to lodge report but near Bus Stand Rohna, police party headed by Baljit Singh, Head Constable had met Suresh Kumar. Statement Ex. PJ of Suresh Kumar was recorded. After making endorsement at 8:50 a.m. on 23.10.2001 statement Ex. PJ was sent to the police station, on the basis of which, entry was made in the roznamcha. 4 After recording statement Ex. PJ on 23.10.2001, Head constable, Baljit Singh had gone to spot where dead body of Jagbir Singh alais Jaggu was lying. Inquest report Ex. PH was prepared. Dead body was sent to hospital for post mortem examination. After post mortem examination, dead body was handed over to the relatives of the deceased for cremation. 5 Azad Singh, complainant is the real brother of Jagbir Singh alias Jaggu (deceased). Elder brother of Azad Singh namely, Ram Kumar was residing at Bahadurgarh. Jagbir alias Juggu was younger to the complainant. Suresh is the youngest and was running a shop at Kharkoda. Azad and Jagbir alias Jaggu were doing agricultural work. 5 Azad Singh, complainant is the real brother of Jagbir Singh alias Jaggu (deceased). Elder brother of Azad Singh namely, Ram Kumar was residing at Bahadurgarh. Jagbir alias Juggu was younger to the complainant. Suresh is the youngest and was running a shop at Kharkoda. Azad and Jagbir alias Jaggu were doing agricultural work. Jagbir alias Jaggu was unmarried and used to take liquor. On 22.10.2001 in the evening, Narender alias Langra came to the house of the complainant and took away Jagbir. In the evening, Jagbir alias Jaggu had consumed liquor with Rattan, Narender and Mohender sons of Ram Grander Patwari residents of Village Rohna in the cattle shed to Tej Bhan. On 23.10.2001, dead body of Jagbir alias Jaggu was found lying in the water course behind the room of tubewell of Dharam Pal. Land of Dharam Pal was adjoining the land of Azad Singh, complainant. Complainant-party had no enmity in the village. Complainant: was sure that Jagbir alias Jaggu was murdered by Narender alias Langra. 6 On 26.10.2001, police party headeid by Satyabir Singh, ASI in connection with patrol duty was present near Delhi Chowk, Kharkoda Town where Azad Singh along with Satish, Member Panchayat had met the party. Statement of Azad Singh Ex. PC was recorded and he had signed the same in token of its correctness. After making endorsement at 6:50 p.m. on 26.10.2001. Statement was sent to the Police station, on the basis of which formal FIR was recorded. 7 On 26.10.2001, ASI, Satyabir after recording the statement of Azad Singh Ex.PC had gone to the spot. Rough site plan with correct marginal notes was prepared. On 5.11.2001, PW. Om Parkash produced the accused before him along with the application Ex.PN. During interrogation, accused suffered disclosure statement Ex.PK and in pursuance of the disclosure statement got recovered purse Ex.P2, receipt Ex.Pl and photograph Ex.P3 which were taken into police possession vide recovery memo Ex.PD attested by the witnesses. 8 After completion of the investigation, challan was presented in the Court. 9 Accused was charged under Section 302 to which the accused did not plead guilty and claimed trial. 10 To substantiate its charge, prosecution examined following witness : PW-1, Narender Kumar Patwari had simply prepared scaled site plan Ex.PA. PW-2, Rattan Singh did not support the posecution story and was declared hostile. 9 Accused was charged under Section 302 to which the accused did not plead guilty and claimed trial. 10 To substantiate its charge, prosecution examined following witness : PW-1, Narender Kumar Patwari had simply prepared scaled site plan Ex.PA. PW-2, Rattan Singh did not support the posecution story and was declared hostile. PW-3, Azad Singh brother of the deceased stated that on 22.10.2001, Narender came to his house and his brother Jagbir alias Jaggu was taken away . On 23.10.2001, dead body of his brother Jagbir Singh alias Jaggu Was found in the drain of tubewell situated in the fields of Dharampal. Report was lodged with the police. On 5.11.2001, accused was interrogated and as per the disclosure statement, got recovered receipt Ex, PI, Purse Ex. P2 and phbtogaraph Ex.P3 from the speci-fied place. PW-4, Rajesh stated that on 23.10.2001, his uncle Suresh informed that dead body of Jagbir alias Jaggu was lying in the drain. He had gone to the spot and had identified the dead body. PW-5, Dr. A.S. Ahlawat on 23.10.2001 had" conducted post mortem examination on the dead body of Jagbir alias Jaggu and found following injuries : 1. There are diffused swelling on the anterior surface of neck with ill-defined margins. There were crescentic abrasions over anterior lateral surface of the neck on both sides (one abrasion on left side and three abrasions on right side of neck). The abrasions were about one cm. in length and 0.2. cms in width. On dissection the superficial veins of anterior aspect of neck were deeply engorged with blood. Muscles were swollen and contused. There was fracture of hyoid bone. Traceha was healthy. PW-6, Naresh stated that on 22.10.2001 at about 8:00 p.m, he had seen Jagbir alias Jaggu in the company of Narender. PW-7, ASI, Baljit Singh while serving as Head Constable had recorded the statement of Suresh Kumar Ex.PJ on 23.10.2001 and after making endorsement had sent the statement to the police station on the basis of which entry was made in the Daily Diary Register. Ex.P J/2 is the copy of DDR. PW-8, Lekh Raj inspector stated that on 5.11.2001, Om Parkash had produced accused Narender before the police. He was formally arrested and was interrogated. Accused suffered disclosure statement Ex.PK and in pursuance of the disclosure statement got recovered receipt Ex. P-l, purse Ex.P-2 and photograph Ex.P-3 from the specified place. Ex.P J/2 is the copy of DDR. PW-8, Lekh Raj inspector stated that on 5.11.2001, Om Parkash had produced accused Narender before the police. He was formally arrested and was interrogated. Accused suffered disclosure statement Ex.PK and in pursuance of the disclosure statement got recovered receipt Ex. P-l, purse Ex.P-2 and photograph Ex.P-3 from the specified place. PW-9, Suresh brother of the deceased stated that on 22.10.2001, Narender came to their house and his brother Jagbir alias Jaggu was taken away. On 23.10.2001, he had seen the dead body of his brother while lying in the water house Jagbir alias Jaggu had taken liquor with Narender and Rattan Singh while present in the cattle shed of Tej Bhan. PW-10, Constable Joginder Singh had delivered special report to the llaqa Magis PW-11, SI, Satbir Singh is the recovery witness of receipt, purse and photograph recovered in pursuance to the disclosure statement Ex. PK, PW-12, Pawan Kumar, Constable tendered his affidavit Ex. PL. PW-13, ASI, Satbir Singh on 26.10.2001 had recorded the statement of Azad Ex. PC and after making endorsement had sent the same to the concerned police station, on the basis of which formal FIR was recorded. Then after inspecting the place of occurrence had prepared rough site plan Ex. PM. PW-14, Om Parkash stated that on 5.11.2001, Narender came to his house and made extra judicial confession before him that on 22.10.2001, he along with Jagbir alias Jaggu had taken liquor. Thereafter an altercation took place between him and Jagbir. He further told that he took Jagbir to the fields and strangulated him. PW-15, Head Constable, Khilla Ram stated that on receipt of ruqa Ex.PC, he had recorded formal FIR Ex. PC/2. Case propety was deposited with him. Sealed parcel was handed over to Constable Pawan Kumar who had deposited the same with the office of FSL. 11 After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr. P.C. Accused denied all the allegations of the prosecution and pleaded to be innocent. 12 Defence version of the accused was that he was falsely implicated. 13 Opportunity was given to lead defence but no defence was led. 14 After hearing public prosecutor for the State, counsel for the appellant and from the perusal of the evidence on the file, appellant was convicted and sentenced as stated aforesaid. 12 Defence version of the accused was that he was falsely implicated. 13 Opportunity was given to lead defence but no defence was led. 14 After hearing public prosecutor for the State, counsel for the appellant and from the perusal of the evidence on the file, appellant was convicted and sentenced as stated aforesaid. 15 We have heard learned counsel for the appellant, learned State counsel and have gone through the evidence on the file. 16 Learned counsel for the appellant argued that there is delay in lodging the FIR. Occurrence is dated 22.10.2001. On 23.10.2001, DDR was got recorded. After recovery of the dead body, FIR was got recorded on 26.10.2001. After the DDR, inquest report was prepared. Dead body was sent to hospital for post mortem examination. Recording of FIR second time in view of the statement of Azad is clear cut-misuse of the process of law because DDR dated 23.10.2001 and FIR dated 26.10.2001 are qua the same offence. On 23.10.2001, Azad came to know that murder was by the appellant but he remained silent. Occurrence had taken place in the cattle shed to Tej Bhan, but he was not examined. Deceased had taken liquor with the appellant-Narender, Rattan and Mohender. Mohender was not examined by the prosecution. Rattan when appeared as PW-2 then failed to support the prosecution story. As per story appellant had made extra judicial confession before Om Parkash, PW-14. But Om Parkash is the relative of the deceased. Appellant was named in the statement of Suresh Kumar Ex. PJ dated 23.10.2001 and in the statement of Azad Singh Ex. PC dated 26.10.2001, that means police was after the appellant. Then appellant had no reason to make extra judicial confession before Om Parkash relation of the deceased. Counsel for the appellant lastly argued that before the present occurrence, appellant had no enmity with the deceased. In fact as per story the deceased and the appellant used to take liquor together. On 22.10.2001 deceased and the appellant had taken liquor. They had some altercation. As per report of the doctor, deceased was heavily drunk. Appellant was not medico legally examined. But the appellant also seemed to have taken excess liquor. When both were heavily drunk then appellant was not in a position to know as to what was wrong or right. On 22.10.2001 deceased and the appellant had taken liquor. They had some altercation. As per report of the doctor, deceased was heavily drunk. Appellant was not medico legally examined. But the appellant also seemed to have taken excess liquor. When both were heavily drunk then appellant was not in a position to know as to what was wrong or right. Under the influence of liquor without any motive on account of some minor altercation, appellant seems to have pressed the neck of the deceased and gave a push. Injury on the person of the deceased as per doctor could be by fall. There was no intention or motive to murder. At the most appellant has committed the offences of culpable homicide not amounting to murder and is liable for punishment under Section 304 Part-II IPC and not under Section 302 IPC. 17 Learned counsel for the State argued that the deceased was last seen in the Company of the appellant. Appellant and the deceased had taken liquor in the cattle shed of Tej Bhan but Tej Bhan is not an eye witness and neither was he present when deceased and appellant were having liquor together. Hence, non-examintion of Tej Bhan is not fatal. Rattan and Mohender had also taken liquor with the appellant and the deceased. Out of fear to be implicated in this case, Rattan Singh did not support the prosecution. Second witness Mohender was not examined because he was won over by the appellant. Appellant had made extra judicial confession before Om Prakash. According to the doctor, death was due to throttling and this fact finds support from the statement of Om Parkash. Death is homicide. After extra judicial confession, appellant while in custody suffered disclosure statement got recovered purse, receipt and photograph. When there was no dispute amongst the parties, then no question of false implication arise. 18 On 22.10.2001, Jagbir alias Jaggu deceased was present in his house. In the evening, appellant had gone to the house of the deceased who was unmarried and used to take liquor. Deceased was taken away by the appellant and this fact is clear from the statement of Suresh Kumar and Azad who are the brothers of the deceased. Both have categorically stated that on 22.10.2001 in the evening deceased was seen in the company of the appellant. Deceased was taken away by the appellant and this fact is clear from the statement of Suresh Kumar and Azad who are the brothers of the deceased. Both have categorically stated that on 22.10.2001 in the evening deceased was seen in the company of the appellant. Naresh Kumar(PW-6) is from the village of the appellant and the deceased and stated that deceased was seen in the company of the appellant on 22.10.2001. 19 Evidence shows that deceased along with appellant, Rattan Singh and Mohender had taken liquor while present in the cattle shed of Taj Bhan. Tej Bhan was not present when deceased had taken liquor along with the appellant Narnder, Rattan and Mohender. On 23.10.2001, dead body of Jagir alias Jaggu was found lying in the drain near the room of tubewell of Dharam Pal. As per post mortem report, deceased had taken liquor. Viscera was sent to the laboratory. Ex.PF is the report of FSL. According to the report, ethly alcohal was detected in the stomach and small intestine, and 92 miligram % age of ethyl alcohal was found in the liver, spleen, kidneys, That means the deceased had taken excess of liquor. Appellant when examined under Section 313 Cr.P.C. then did not state a word that he had not taken liquor with the deceased while present in the cattle shed of Tej Bhan. No evidence on the file that residential house of Tej Bhan was adjoining his cattle shed. If there was no cattle shed the Tej Bhan could easily be produced in defence. Om Prakash before whom appellant had made extra judicial confession also stated that deceased had taken liquor with the appellant and there was some altercation. Rattan Singh and Mohender were also present when the appellant and the deceased had taken liquor. Rattan Singh as PW-2 did not support the prosecution story. In case Rattan Singh failed to support the prosecution story then case of the prosecution is not to be brushed aside because Rattan Singh out of fear of implication in the present case with the appellant did not support the prosecution story. Mohender was given up as won over by the appellant. In case Rattan Singh failed to support the prosecution story then case of the prosecution is not to be brushed aside because Rattan Singh out of fear of implication in the present case with the appellant did not support the prosecution story. Mohender was given up as won over by the appellant. In case Rattan Singh failed to support the prosecution story and Mohender was not examined as won over by the appellant then on this short ground, story is not to be ignored because one thing is clear that on 22.10.2001 after the deceased was taken away by the appellant then deceased and the appellant had taken liquor while present at the cattle shed of Tej Bhan. 20 On 23.10.2001 in the morning dead body of Jagbir was noticed while lying in the drain behind the tubewell of Dharam Pal. At 8:50 a.m. report was lodged with the police by Suresh brother of the deceased. At that time, complainant- party was not suspecting that the crime was committed by the appellant. Suresh stated that they had no dispute with anyone in the village. After the statement of Suresh, inquest report was prepared, dead body was sent to hospital for post mortem examination and after post mortem examination, dead body was handed over to the relations of the deceased for cremation. No action was taken against anybody. After, post mortem examination, as per viscera report alcohol was noticed. Injury was also noticed on the person of the deceased then complainant-party suspected that there was some mischief. On 26.10.2001, Azad Singh reported to the police that on 22.10.2001, his brother Jagbir Singh alias Jaggu was taken away by the appellant. Later on they had taken liquor while present in the cattle shed of Tej Bhan. Now he is sure that jagbir alias Jaggu was murdered by Narender. Ex.PJ and Ex. PC are the same except one line that on 26,10.2001, complainant-party was sure that Jagbir alias Jaggu was murdered by the appellant, if the appellant was to be named falsely then on 23.10.2001, Suresh could easily state that Jagbir alias Jaggu was murdered by the appellant but on that day Suresh specifically stated that on dispute with anyone. Suresh simply reported to the police that the dead body of his brother was lying near the tubewell of Dharam Pal. Suresh simply reported to the police that the dead body of his brother was lying near the tubewell of Dharam Pal. 21 On 5.11.2001, appellant had made extra judicial confession before Om Parkash to the effect that he had taken liquor with the deceased. After that they had some altercation. Then they went behind the tubewell where he had throttled Jagbir alias Jaggu in a fit of anger. Om Parkash appeared as PW-14 and supported the prosecution story by saying that appellant came to him and confessed his guilt by saying that he along with Jagbir had consumed liquor. Then they had some altercation. Jagbir was taken towards the fields and was strangulated by him. Om Parkash is the relative of the deceased. If Om Parkash being relative was to make statement falsely then he should have fully supported the prosecution story. Om Parkash supported the prosecution story qua extra judicial confession only. Om Parkash did not state a word that the appellant had also disclosed to him that he had taken liquor with some other persons also and on 5.11.2001, appellant had suffered disclosure statement and in pursuance of the disclosure statement got reserved receipt purse and photograph. As discussed earlier if being relative of the deceased, statement of Om Parkash is not genuine one then Om Parkash should have fully supported the prosecution story. There was no idea to partly support the prosecution story qua extra judical confession only. Statement of Om Parkash rather shows that he is the natural witness. 22 On 5.11.2001, appellant was produced before the police. Then on interrogation, he suffered disclosure statement and in pursuance of the disclosure statement got recovered receipt Ex. P-1, Purse Ex.P-2 and photograph Ex. P-3 from the specified place. At the time of recovery, there was no independent witness but if no independent witness was joined due to fault of the Investigating Officer then prosecution story is not to be ignored because death was unnatural and cause of death was due to throttling when no question of throttling by the deceased with his own hands and death not suicidal. 23 Last submission of the counsel for the appellant is that there was no motive or intention to commit the crime. An altercation took place between the deceased and the appellant when they had taken liquor. 23 Last submission of the counsel for the appellant is that there was no motive or intention to commit the crime. An altercation took place between the deceased and the appellant when they had taken liquor. So at the most appellant can be held liable for the offence punishable under Section 304 Part-II IPC. 24 After going through the evidence on the file, we are of the opinion that submission of the leaned counsel for the appellant seems to be reasonable one. Deceased was unmarried and used to take liquor. On 22.10.2001, deceased and the appellant had taken liquor in the cattle shed of Tej Bhan. As per post mortem examination, liquor was noticed by the doctor. Ex.PF is the report of the FSL to the effect that ethyle alcohol was noticed and in case of liver, spleen and kidneys, strength of ethyl alcohol was found to be 92 miligram % age. That means the deceased was heavily drunk. No MLR qua the appellant because the appellant was produced before the police on 5.11.2001 but the appellant had also taken liquor. After taking excess liquor, there was possibility of some altercation. Earlier to this occurrence, appellant had no enmity with the deceased. This fact is also corroborated from the statement of Azad and Suresh when they reported to the police that they had no enmity with anyone. After some altercation, deceased and the appellant had gone behind the tubewell of Dharam Pal and in a fit of anger, appellant seems to have throttled the deceased. This fact is clear from the statement Ex. PN of Om Parkash, PW-14. Prosecution cannot back out from the statement of Om Parkash Ex. PN. Om Parkash in Court also stated that appellant had confessed his gulit by saying that he along with Jagbir alias Jaggu had consumed liquor. Thereafter an altercation took place between him and Jagbir alias Jaggu. He took Jagbir alias Jaggu towards the fields and strangulated him. Deceased and the appellant had taken liquor in the cattle shed of Tej Bhan. Dead body of Jagbir alias Jaggu was found from the drain behind the tubewell of Dharam pal. Only one injury was noticed on the person of the deceased. Dr. A.S. Ahlawat on cross-examination admitted that possibility of injury noted on the person of the deceased by fall on the corner of the drain cannot be ruled out. Dead body of Jagbir alias Jaggu was found from the drain behind the tubewell of Dharam pal. Only one injury was noticed on the person of the deceased. Dr. A.S. Ahlawat on cross-examination admitted that possibility of injury noted on the person of the deceased by fall on the corner of the drain cannot be ruled out. Semi- digested food was noticed and the same might have been taken before death. Except the injury noted, there was no other injuries found on the person of the deceased. After examination doctor replied that normally the injury noted is caused by throttling. Deceased was heavily drunk as per report of the FSL. Appellant also seemed to be heavily drunk. When the appellant and the deceased were heavily drunk then possibility of some dispute cannot be ruled out. After that both had gone towards the fields. When a man is heavily drunk then he cannot be expected to know as to what is wrong and right. When the appellant was heavily drunk then there was possibility of injury noted by the doctor was given by push and fall because deceased being heavily drunk was also not in a position to resist. When there was no serious dispute amongst the parties then we are of the opinion that appellant had no motive of intention to murder. Injuries were caused in a fit of anger when appellant and the deceased were heavily drunk. Only conclusion which could be drawn is that appellant had committed an offence of culpable homicide not amounting to murder. Appellant is liable for punishment under Section 304 Part-II IPC instead of under Section 302 IPC. Appellant was 35 years old at the time of commission of crime and had two minor children besides old parents to support. Appellant is a handicapped also. So the ends of justice would be fully met if the appellant is directed to undergo R.I. for a period of seven years under Section 304 Part- II IPC. Fine is ordered to be maintained. In default of payment of fine to further undergo R.I. for a period of one year. 25 For the reasons mentioned above impugned judgment is modified qua conviction and sentence. 26 Appeal is dismissed with modification on the point of conviction and sentence as stated aforesaid.