(1.) Heard Sri Pankaj Kumar Asthana, learned Amicus Curiae for the appellant, learned A.G.A. for the State and perused the record.
(2.) The present appeal is filed challenging the judgement dtd. 18/2/1983 passed by the Special and Additional Sessions Judge, Ghazipur in Sessions Trial No. 143 of 1982 (State Vs. Kanta and others), whereby the Appellant - Kanta has been convicted under Sec. 304 of the IPC and has been sentenced for three years rigorous imprisonment under Sec. 304 (II) of the IPC.
(3.) As per the prosecution case, on 27/10/1981, at about 11:00 a.m., complainant - Chandrajeet lodged a First Information Report at Police Station Qasimabad, District Ghazipur being Case Crime No. 161 under Sec. 304 of the IPC against Kanta Yadav (Appellant), Rama Shankar Yadav and Sudarshan. The prosecution case as per the First Information Report is to the effect that the complainant was resident of Village Bhatpura under Police Station Qasimabad. On 26/10/1981, at about 12 noon, there was heated argument between the complainant and his nephew Sudarshan with regard to selling of agricultural land jointly belonging to the complainant and his nephew Sudarshan. The nephew of the complainant was selling the agricultural land and the complainant was asking him not to sell the land and there was heated argument between them and even abusive language was used. In the meantime, the Appellant - Kanta Yadav and Rama Shankar Yadav who are sympathisers of Sudarshan came and started abusing the complainant in favour of Sudarshan and when the complainant asked them not to use abusive language then the mother of Laxmi Shankar came to defuse the situation. Sudarshan caught the mother of Laxmi Shankar and Rama Shankar caught the complainant. Thereafter, Appellant - Kanta Yadav took 'Faruhi' in his hand to assault the complainant, however, Laxmi Shankar came in between to save the complainant and as such 'Faruhi' hit Lakshmi Shankar on his head. Laxmi Shankar on being hit on the head fell down and was taken to Dr. Shreekant who gave him first aid and thereafter Laxmi Shankar was talking normally and as such the complainant thought that he was out of danger and did not take him to hospital. At about 11:00 p.m. Laxmi Shankar died on account of injury. As the death occurred in the late night as such the police could not be informed and the First Information Report was lodged on 27/10/1981.