Judgment

DUA, J.: - This is an appeal by special leave. The appellant and Bashir ex-zamindars were tried in the court of the Second Temporary Sessions Judge, Azamgarh on a charge under Ss. 304/34, I.P.C. for the offence of culpable homicide not amounting to murder by causing the death of one Mewa a member of the Mallah community on September 19, 1964 at about 11 p.m. in village Fatehpur Tal Narza, police station Ghosi. They were both convicted by the trial court. The appellant was convicted under S. 304, I.P.C and sentenced to rigorous imprisonment for five years whereas Bashir was convicted under Ss. 304/34, I.P.C. and sentenced to rigorous imprisonment for two years. The trial court believed the testimony of Maula (P.W. 1), Shyam Pyar (P.W. 2), Jamuna (P.W. 6) and Smt. Ram Rajia (P.W. 7): it also considered the first information report lodged by the deceased Mewa himself to amount to a dying declaration and, therefore, in the nature of substantive evidence.

2. According to the prosecution story, after the abolition of Zamindari in the State of U. P some litigation started between the ex-Zamindars in village Fatehpur Tal Narza (of which group the two accused persons in the trial cou