MUSHTAQ Vs. STATE OF U P

JUDGEMENT

(1.) This appeal has been filed by Mustaq and Pratap against the judgment and order dated 22.3.1979 passed by Sri J.P. Sharma, 4th Additional Sessions Judge, Banda. By the impugned order Mustaq has been convicted under section 323 and section 323/34 I.P.C and sentenced to one year's R.I. and a fine of Rs. 1000/- and in default of payment of fine six monthsT further rigorous. Imprisonment while Pratap has been convicted under sections 323/34 I.P.C. and sentenced to six months R.I. and a fine of Rs. 500/- and if default of payment of fine four months further rigorous imprisonment.

(2.) The prosecution case, in brief, is as follows: Mustaq appellant is a neighbour of the complainant Ali Hasan and is also nephew. Both of them have their housel in village Saya P.S Bisenda direct Benda. On 11.5.1976 at about 6.00 P.M. when Ali Hasan returned to his house after doing his work in fields he saw that his daughter Rukhsana aged above 5 years and Suleman aged about 6 years were quarrelling amongst themselves. Both the children were separated and reprimanded by Ali Hasan. After sometime Mushtaq appellant brother of Suleman along with the other appellant Pratap came armed with lath is and started hurling abuses to Ali Hasan. When Ali Hasan tried to stop them from abusing him. Ali Hasan was assaulted with lathi, fists and slaps. On an alarm being raised by Ali Hasan his wife Khaliqun rushed to his rescue but she too was between by fists, legs and lathi On the alarm of both the victims Anisa, their daughter and Rais and Jagdish Prasad of the village also came. On their intervention the mailer was specified and the appellants went towards the village. Smt. Khaliqun wife of Ali Hasan, had received some internal injuries on some vital parts of her body. She became unconscious after receiving the injuries and died after half an hour of the incident.

(3.) A report of the incident is said to have been dictated by Ali Hasan to one Badri Prasad and it was lodged at 9 30 P.M. at P.S. Bisenda, the Police station being seven miles from the place of incident. On the basis of the written report a case under sections 304/323/504 I.P.C. was registered against the accused appellants.