NIYAZ AHMAD Vs. STATE OF U P

JUDGEMENT

(1.) THE appellant has been convicted for an offence under section 304, Part II, IPC by the learned II Additional Sessions Judge, Bahraich, by his order dated 2-4-1981 and sentenced to undergo R. O. for a period of two years. He was tried along with two other ladies whl. have since been acquitted. According to the prosecution version Daulat deceased was the real brother of Munawwar Ali PW 1 who was the informant in this case. Smt. Bismillah is the wife of the deceased Daulat. THE wife of the complainant Munawwar Ali, the wife of Daulat deceased and the wife of the appellant Niaz Ahmad are admittedly real sisters. It was on 10-4-1979 at about sun set that an exchange of abuses was going on between Smt. Saira and Smt. Hajra both since acquitted on the one hand and Smt. Bismillah wife of the deceased Daulat, on the other. THE deceased went to mediate into the affair but Smt. Hajra caught hold of his testicles while Smt. Saira caught the deceased by his waist.THE deceased cried at which his brother Munawwar Ali besides Sidhari and Akbar Ali witnesses arrived on the spot. Meanwhile Niaz Ahmad the appellant also came out of his house and struck a Pati blow on the head of the deceased who became unconscious. First information report of the occurrence was lodged at 10.30 A. M. the next morning as the police station was about 8 miles away and during night no arrangement for bullock-cart or for crossing the river lying in between, could be made. Investigations were taken up by Sub-Inspector Ram Bodh Dubey in whose absence the FIR was lodged Later Daulat died of his injuries and the case which was originally registered under section 308 IPC was converted into one under section 304, IPC. Post-mortem examination was conducted on the dead body and after completing the investigations a charge-sheet was submitted.

(2.) THE evidence adduced by the prosecution consisted of the statements of Munawwar Ali PW 1 and Smt. Bismillah PW 3 as eye-witnesses of the occurence. Sidhari PW 2 was also examined as an eye-witness but he only supported the prosecution version partly and was rather declared hostile. Other evidence was of a formal nature. THE investigating officer and Dr. M. Shamim were also examined.

(3.) IN this appeal it has been contended that the evidence fell short of establishing the guilt and that no case under section 304 IPC was made out. Benefit of the Children Act was also claimed. I have heard the learned counsel for the appellant as also for the State and have gone through the record.