BABU Vs. STATE OF U.P.

JUDGEMENT

(1.) The appellants have preferred this appeal against the judgment and order dated 28.2.1998 passed by the First Additional Sessions Judge, Lakhimpur Kheri in Sessions Trial No.267/1993 (State v. Babu and Ram Prasad) arising out of Case Crime No.60/1991 under Sections 304,323, 504 I.P.C., P.S. Kotwali, District Lakhimpur Kheri whereby the learned trial court has convicted the appellants under Section 304 Part II read with Section 34 I.P.C. and sentenced them to five years' rigorous imprisonment with a fine of Rs.2,000/- each. In default of payment of fine, six months' simple imprisonment was awarded. Out of the deposited fine, Rs.3000/- was to be paid to Smt. Gopita, widow of the deceased.

(2.) According to the prosecution version, an N.C.R. No.251 was lodged by Shyam Bihari on 19.9.1991 at 8:30 a.m. stating that accused Babu and Ram Prasad have beaten him by 'Lathi' and 'Danda' on the dispute of the way. They have also criminally intimidated him. The N.C.R. was registered under Section 323, 504 I.P.C. Thereafter, the injured was medically examined on 19.9.1991 at 9:30 a.m. wherein the doctor found an abrasion 1.5 c.m. x 0.5 c.m. at left side of scalp. X-ray of skull was advised. The complainant succumbed to his injuries and the case was converted under Section 304 I.P.C. vide G.P. No.35 dated 28.11.1991 and the case was registered at Crime No.60/91 under Sections 304, 504 I.P.C. The investigation was handed over to the Investigating Officer. The postmortem on body of the deceased was conducted on 26.9.1991 wherein one ante mortem injury was found. The cause of death was due to coma as a result of ante mortem head injury.

(3.) The inquest proceedings were conducted on 26.9.1991. The Investigating Officer recorded the statements of witnesses and submitted the charge sheet against the accused appellants.