SAHEBZADE Vs. STATE OF U P

JUDGEMENT

(1.) THIS appeal is directed against a judgment and order dated 11-3-1978, passed by V Additional District and Sessions Judge, Allahabad, in Sessions Trial No. A-476 of 1976, by which Sahebzade son of Akbar Ali, resident of village Manjhanpur was convicted and sentenced to ten years' rigorous imprisonment under Section 304 IPC and to six months' rigorous imprisonment under Section 323 IPC read with Section 34 IPC. The other appellant Chand Babu son of Bassan who is also a resident of village Manjhanpur was convicted and sentenced to 10 years' rigorous imprisonment under Section 304 IPC read with Section 34 IPC and to six months' rigorous imprisonment under Section 323 IPC. The sentences were ordered to run concurrently.

(2.) AKHTAR Husain complainant and the appellants are close neighbours. Both are residents of village Manjhanpur. Sibtain AKHTAR son of AKHTAR Husain was teaching some boys of his mohalla which was not liked by the appellants. Two days before the occurrence when Sibtain AKHTAR was in the grove of Mohd. Sadiq, both the appellants had asked him not to teach those boys and had threatened him with dire consequences. According to the prosecution when on 9-5-1975 at about 4.30 p. m. Sibtain AKHTAR was passing through the lane running in between the houses of Mashooq Ali and Ghulam Husain and was returning to his home from the houses or Dr. Ali Amzad, the two appellants detained him and asked him to give up the tuitions. Sibtain AKHTAR asserted that he would not give up the tuitions. Thereupon Chand Babu started giving him fist blows and Sahebzade gave him a knife blow on the left side of his chest. This incident was witnessed by Zaheer Hasan PW 2 and his son Bashir Hasan PW 3. These witnesses brought Sibtain AKHTAR to his house where he narrated the incident to his father who scribed a report Ext. ka 1 and brought him to the police station.

(3.) TO establish the charge against the appellants the prosecution relies (1) on the ocular testimony of Zaheer Hasan PW 2 and Bashir Hasan PW 3 alleged to be the eye-witnesses of the occurrence resulting in the death of Sibtain Akhtar, (2), the dying declaration recorded by the Investigating Officer under Section 161 CrPC and (3) the dying declaration alleged to have been made by deceased Sibtain Akhtar to his father Akhtar Husain, who lodged a report at police station Manjhanpur about an hour after the occurrence. The learned Additional Sessions Judge rejected the testimony of the two prosecution witnesses Zaheer Hasan PW 2 and Bashir Hasan PW 3 holding that both these witnesses were not present at the time of the occurrence. The learned Additional Sessions Judge also rejected the statement of the deceased alleged to have been recorded by the Investigating Officer in Swaroop Rani Medical Hospital, Allahabad. However, the Additional Sessions Judge relied on the statement made by the deceased to his father and held that as the deceased had named the appellants as assailants and there is nothing to taint this dying declaration, the same can be the basis for conviction.