- (1.) BHAGWAN Din, J. This criminal ap peal has been directed against the order dated 29-1-1985 passed by the Sessions Judge, Ghazipur in Sessions Trial No. 76 of 1981, convicting the appellants under Sec tion 304, I. P. C. and sentencing him to un dergo R. I. for a period of 7years.
(2.) ON 15-10-1980, Sheochand carry ing a number of injuries on his person was admitted by Bhaglu at 1. 10 a. m. , Dr. K. K. Srivastava, PW 6 examined the injuries of the injured and prepared the injury report Ext. Ka-7. ON the call given by Sri Brindavan Bihari Lal, ASDM, Ghazipur (as then he was) reached the hospital, recorded the dying declaration, Ext. Ka-18 in presence of doctor, who certified that the injured was in fit state of mind to give his statement. It cannot be said that the police of the police station, Kotwali was not in formed of the admission of the injured, Sheochand in the hospital and also of the fact that dying declaration had been recorded by the ASDM, Ghazipur. The police, however, did not come into motion until a formal report was lodged by Smt. Samraziaon25-10-1980. In the written report, Smt. Samarazia named Mannu (the appellant) and Dhannu and Gurcharan (not appel lants) as the assailants of her husband Sheochand. A case vide crime No. 658 of 1980 was registered at the police station at 6. 35 a. m. Sheochand (injured) died on the same day at about 10. 15 a. m. The case, therefore, was converted under Section 304, I. P. C. The Investigating Officer, Sri Ram Naresh investigated the case and sub mitted charge-sheet against the appel lants, Mannu and two others, namely, Dhannu and Gurcharan. The trial Court tried the appellant and two others on the charge under Section 304/34, I. P. C.
(3.) THE trial Court was of the view that the accused Dhannu and Gurcharan were innocent and they have not committed the alleged offence per se they have not been named by the deceased in his dying decla ration, to have caused injuries. Hence, convicted the appellant Mannu alone under Section 304, I. P. C. simplifier and sentenced him as above. The learned counsel appearing for the appellant submits that the injury No. 6 alone may be attributed to be the ultimate cause of death of deceased, Sheochand. Dr. K. K. Srivastava, PW6 has stated in the Court that injury No. 6 was an incised wound in the size 4cm. x 2cm. x cavity deep on abdomen 5 cm. below the umbilicus, small intestine was protruding out. He kept this injury under observation and treated till 25-10-1980, the date of death of the injured.;