NANKAI AND OTHERS Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri Rahul Pandey, learned counsel for the appellants, Sri Harsh Narain Singh, learned counsel for the opposite party and Sri Mayank Mishra (B.H.), learned counsel appearing for the State.

(2.) This criminal appeal has been preferred under Section 374 (2) of Cr.P.C. by the appellants, namely, Nankai, Smt. Chaubi and Smt. Uma Devi against the judgment and order of conviction and sentence dated 21.10.2008 passed by the learned Additional Sessions Judge, Court No.2, Fatehpur in Sessions Trial No. 800 of 2006, arising out of Case Crime No. 160 of 2006, under Sections 304 (Part II) and 504 of I.P.C., Police Station Khaga, District Fatehpur whereby appellant no.1 Nankai was convicted and sentenced under Section 304 (Part II) of I.P.C. for ten years rigorous imprisonment along with a fine of Rs.10,000/-. In case of default of payment of fine, he shall further undergo six months additional imprisonment, and appellant nos.2 & 3, namely, Smt. Chaubi & Smt. Uma Devi were convicted and sentenced under Section 304 (Part II) of I.P.C. for five years rigorous imprisonment each and a fine of Rs.5,000/- each. In case of default of payment of fine, they shall further undergo three months additional imprisonment each. However, all the appellants were acquitted under Section 504 I.P.C.

(3.) In nutshell, the prosecution case is that F.I.R. (NCR) was lodged on 17.6.2006 at 8:30 A.M. by Ramu @ Ram Nath for the dispute over the land to the effect that when appellant Nankai was placing bricks over the land beside the hand-pamp, situated in front of the house of the complainant, the complainant stopped from placing bricks stating that the same would face problem in filling up the water from the hand-pamp whereupon the appellant Nankai excited and used filthy language upon the complainant. Accused Nankai further stated that since it is my own land hence he would place the bricks. When complainant opposed to do the same, the accused Nankai called other accused persons, namely, Smt. Chaubi, Smt. Uma Devi and Maikoo and they assaulted upon the complainant. The complainant received injuries on head. NCR (FIR) under Sections 323 & 504 I.P.C. was registered at Police Station Khaga, District Fatehpur. Later on complainant (Ramu @ Ram Nath) died. Hence Section 304 I.P.C. was substitute in place of Section 323 I.P.C.