Naheed Ara Moonis, J. - (1.) HEARD Sri M.P. Rai, learned Counsel for the Appellant and the learned AGA and have taken through the record.
(2.) THE instant appeal has been preferred against the judgment and order dated 21.012009 passed by the Additional Sessions Judge Hapur District Ghaziabad in Sessions Trial No. 51 of 2007 ( State v. Kammu and Ors.) whereby the Appellant was convicted and sentenced for seven years rigorous imprisonment under Section 304 (Part -II) IPC vide Case Crime No. 671 of 2006 Police Station Hapur Nagar District Ghaziabad. The genesis of the prosecution case in a short conspectus as divulged in the first information report lodged by the complainant Shamshuddin on 27.9.2006 at about 11.20 p.m. is that there was a dispute with regard to division of the house between the complainant and his brothers . On 24.9.2006 on the intervention of some respected relatives , a consensus was arrived at between them whereby the complainant and his brothers agreed to abide.
(3.) ON 27.9.2006 at about 10.00 p.m. Salmoo, Rashid , Sabir and Rashid came at the residence of the complainant hurling abusive and filthy languages stating that they will not abide with the agreement arrived at between them. Yusuf, the son of the complainant forbade them from hurling abuses which caused great wrath and infuriation to the assailants. Kammoo, Sabir and Salmoo caught hold of the son of the complainant . Rashid assaulted with knife on the neck of Yusuf in consequence whereof he sustained fatal injuries. The injured was immediately taken to Khan Nursing Home Hapur Ghaziabad by him with the help of neighbour where his son Yusuf succumbed to injuries. The said incident was witnessed by him and his son Khalid (P.W.4) , Aslam (P.W.2) Imran and Bablu , P.W.3. The complainant got the report written by Dr. Nasir Ahmad . The injured was immediately taken to hospital by his brother at 10.13 p.m. on 27.9.06 where his injuries were examined by Dr. Khan who had proved the injury report Ex. Ka.3 had found one penetrating injury on the neck with sharp margin 3'1/2cm x 1/2 cm x wind pipe deep in front side of middle zone of neck profusely bleeding, injury is associated with shock and severe clot of blood . The knife recovered from the neck was handed over to the police. According to the opinion of the doctor, injury is grievous caused by sharp edged knife of house hold vegetable cutting . The duration of the injury was fresh.;