STATE OF H P Vs. ASHWANI KUMAR

JUDGEMENT

(1.) HEARD and gone through the record. Respondents were sent up for trial, for offences punishable under Sections 304 (II), 328 read with Section 34 of the Indian Penal Code.

(2.) PROSECUTION case was that the respondents had a Liquor Vend at Delhi Gate, Nahan. On 22.7.1988, three persons named Joginder Singh, Basarth Khan and Rup Kumar, all deceased, purchased a bottle of licit liquor from the vend of the respondents and after consuming that liquor they died. On the next following day, i.e. 23.7.1988, all the three deceased were taken to the hospital. Condition of two of them, namely Basarath Khan and Joginder Singh, was serious and probably they were unable to speak. The third one, namely Rup Kumar, however, made a statement that he and other two deceased had purchased a bottle of liquor from the vend of the respondents and consumed the same by the side of a tank near Kali Sathan Temple and after consuming that liquor they could not get up. The aforesaid statement of Rup Kumar was reduced into writing. The same is Ex.PW-7/E. On the basis of this statement, which was recorded by a Police officer namely PW-21 Tulsi Dass, case was formally registered against the respondents.

(3.) IT is true that in his statement Ex.PW-7/E Rup Kumar got recorded that a bottle of liquor was purchased from the liquor vend of the respondents by him and the other two deceased and that all three of them consumed that liquor near Kali Sathan temple on the side of the pond and after consuming that liquor they could not stand up, but the testimony of widows of three deceased, including Rup Kumar, who made the so called dying declaration Ex.PW-7/E, belie the contents of dying declaration. Firstly, in the dying declaration it is recorded that after consuming liquor, the three deceased could not get up from the spot, where the liquor was consumed but their widows namely PW-1 Smt. Shakina Begam (w/o Basarth Khan), PW-2 Smt. Kaushyala Devi (w/o Joginder Singh) and PW-3 Smt. Kamla Devi (w/o Rup Kumar) have stated that they reached home between 7.30 P.M. to 8.00 P.M. Further these witnesses have stated with one voice that all the three deceased were habitual drunkards and the capacity to drunk of each of them was so much that each could consume up to 1 1/2 bottle daily. Not only this all of them have stated that the deceased were habitual of consuming illicit liquor as also raw spirit. Widow of Rup Kumar, PW-3 Smt. Kamla Devi, (who made so called dying declaration Ex.PW-7/E) went to the extent of saying that when the deceased Rup Kumar was being taken to the hospital he made the statement that he had consumed spirit.