S.K.GUPTA, J. - (1.)THIS appeal is directed against the judgment and order dated 12 -07 -1999 propounded by learned Sessions Judge, Udhampur, whereby he held that it appears doubtful that the accused caused the death of the deceased, and giving benefit of doubt acquitted accused, Ali Mohd, of the offence under section 304, Part - I, RPC with which he stood charged.
(2.)THE sheet anchor of the prosecution case stemming out of the record, depicted in narration, is that on 21 -01 -1993, deceased Alaf Din, alongwith his sons Mohd. Hussain and Shera and other participants, accompanied the Barat and the Barat party proceeded towards village Jassar Kote where the marriage of sister of Noor Illahi was being solemnized. After the reception of the Barat, 'Nikah was performed and thereafter feast started at about 6.15 p.m. on the roof of the house. Meal was served to the Baratis when deceased Alaf Din after having finished his meals inside the room at about 8.00 p.m. came out to wash his hands but found two boys standing in the door way. Since little space was left to pass through the door, the deceased got pushed and an altercation ensued with the boys. Accused, Ali Mohd, when saw deceased, Alaf Din, having a wordy duel with the boys intervened and started scolding the deceased in stating that the deceased was responsible for bringing the Barat late than the fixed time. The accused caught hold of deceased, Alaf Din, from his throat and kicked him on his testicles, as a result of which, deceased Alaf Din became unconscious and soon after was found dead. A report about the occurrence came to be lodged by Mohd Hussain with Police Post, Tikri, which led to the registration of an FIR with the Police Station, Udhampur on 22 -01 -1993 for offence under section 302 RPC. After conducting autopsy of the dead body of the deceased, recording of the statement of witnesses under section 161 Cr.PC and on the conclusion of the investigation, challan against the accused to stand trial under section 302 RPC came to be presented before the trial court. The trial court, after the frame of the charge, based on the material gathered during investigation, for offence under section 304, Part -I, RPC, recorded evidence and after hearing the arguments, acquitted the accused in giving him benefit of doubt vide order and judgment impugned in this appeal.
(3.)MR . P.C. Sharma, Government advocate appearing for the State, vehemently urged that the trial court has not appreciated the evidence in its proper perspective and there was overwhelming direct evidence of the eye witnesses connecting the accused with the commission of the offence. His further submission is that trial court seems to have impressed by the non -mention of the congestion of the lungs of the deceased in the autopsy report and held that the cause of death has not been proved cogently and completely by the prosecution to be unnatural and renders the evidence of the eye witnesses also doubtful, which, in view of the unimpeachable evidence of the eye witnesses, is against all canons of criminal jurisprudence.
Mr. J.S. Kotwal, learned senior advocate appearing for the accused -respondent, on the other hand, argued that the witnesses examined by the prosecution are related to the deceased and their evidence being interested cannot be formed the basis of conviction unless corroborated by independent testimony with the ocular witnesses. Mr. Kotwal further submitted that ocular evidence was not in accord with the medical testimony and renders the entire prosecution case redolent with doubts and suspicion and is, thus, not sufficient to held the accused guilty.