STATE OF U P Vs. QAMAR

JUDGEMENT

(1.) State of U. P. has preferred this appeal against judgment and order dated 19-1-1982 passed by the then Sessions Judge, Rampur in Sessions Trial No. 224 of 1981. By the impugned order accused respondent has been convicted under Section 304 Part II I. P. C. and sentenced to six months rigorous imprisonment and to pay a fine of Rs.1000/-. In default of payment of fine one year's rigorous imprisonment has been awarded. Government Appeal No. 949 of 1982 has been admitted on the question of sentence only. In Government Appeal No. 1135 of 1982 the prayer is for setting aside the order of acquittal and for sentencing the accused in accordance with law.

(2.) We have heard Sri S. K. Paul, learned A. G. A. for the State, and Sri N. K. Rastogi, learned counsel for the accused-respondent, and perused the record.

(3.) Hafiz Ahmad, P. W. 2, is the father of deceased, Haneef, who was his elder son. The other son is Irshad Ahmad. The informant was living in Gher Kalandar Khan Police Station Ganj district Rampur. Salamat Khan is neighbour of the informant whose son is accused, Qamar, who was living with his father. The above fact is admitted to the accused. On 20-11-1980 during day time there was quarrel amongst the children of deceased and younger brothers of accused, Qamar. This fact is also admitted to accused. At about 7.15 P. M. the informant, Hafiz Ahmad along with the deceased and his other son, Irshad Ahmad was going to offer prayer in mosque which is situated in their Mohalla. Jakkan, P. W. 4, Jameel and Chandan were also present in front of the mosque. According to the prosecution case accused was also present there. The deceased enquired from the accused as to why he had assaulted his children during the day. Suddenly the accused took out a knife and stabbed the deceased in the abdomen. The deceased ran for a short distance and fell down in front of the shop of Ashfaq Khan. The accused ran away with the knife. Hafiz Ahmad, P. W. 2, and Jakkan, P. W. 4 have stated the above fact. They have also stated that in the mosque an electric bulb was emitting light. It has come in evidence that the mosque has no boundary wall, therefore, sufficient light was available on the spot. Sub Inspector, Hansraj Singh, P. W. 6, Investigating Officer of the case, on reaching the spot found the bulb in the mosque. He has stated that its light was spreading outside. The informant, Hafiz Ahmad carried his son, Haneef along with the other son to the police station where the first information report was lodged the same day at 7.55 P. M. Haneef was sent to hospital but before he could reach there he died. On 21-11-1980 Dr. S. K. Gupta, P. W. 1, performed the postmortem examination. He found one incised penetrating wound 3 cm x 2 cm x cavity deep over right side of abdomen above level of umbilicus. Omentum was protruding out from the wound. There was cut in peritoneum and in small intestine.