N.K.Mehrotra, J. - (1.) THIS is an appeal under Section 374 of the Code of Criminal Procedure against the judgment and order dated 21.4.1992 passed by the IIIrd Additional Sessions Judge, Faizabad in S.T. No. 118 of 1989, State v. Ram Kishun alias Janardan Tiwari, convicting and sentencing the accused under Section 304, I.P.C. to undergo seven years R.I.
(2.) HEARD the learned counsel for the appellant and Sri C.P.M. Tripathi, the learned Additional Government Advocate. The prosecution case in brief is that on 18.6.1985 at about 5.30 p.m. accused Ram Kishun Tiwari was digging out earth from the old house belonging to the informant Onkar Nath Tiwari in order to construct his house. When Manbahal Tiwari objected him from doing so, the accused gave him fist blow in his stomach and pushed him down as a result of which Ram Bahal Tiwari fell down and died on the spot. The occurrence was seen by several witnesses and in self-defence bricks and stones were also pelted on the accused and consequently, he received injuries. The F.I.R. was lodged at about 6.40 p.m. at P.S. Jahangiraganj, the same day i.e., 18.6.1985. The investigation was entrusted to S.I. Jag Narain Pathak who after completing the investigation submitted the charge-sheet against the accused. After committal of the case to the Court of Sessions, the accused was charged for the offence under Section 304, I.P.C. The accused denied the prosecution case but stated that he was digging out earth from his old 'dharohi', then Manbahal and others started beating him and he tried to save himself. He also lodged the F.I.R. Ext. Kha-2 at the police station and was medically examined by the doctor.
(3.) IN support of its case, the prosecution examined Azad Tiwari (P.W. 1), Ram Pher alias Tappe Tiwari (P.W. 2), Sanjay Kumar Tiwari (P.W. 3) and Onkar Nath Tiwari (P.W. 4) as witnesses of fact, and S.I. Jag Narain Pathak (P.W. 5), the INvestigating Officer of this case, Head Constable Shri Ram Tiwari (P.W. 6), Durga Prasad Singh (P.W. 7), Dr. Q. A. Ahmad (P.W. 8) and constable Safiullah (P.W. 9), the formal witnesses. The accused also examined D.W. 1 Dr. M. A. Khan and D.W. 2 constable Jafar Abbas.;