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 court were Pairokars) on the one side and the Mallah community represented by Mewa deceased and P.Ws. Maula etc. on the other. This litigation related to Tal. There was thus hostility between the two groups and consequently between the accused and Mewa. On the evening of September 19, l964 when Mewa was going to purchase ration from a fair-price shop in the village, he met the accused persons and there was exchange of hot words between them in respect of Tal. Bashir accused is then stated to have caught hold of Mewa deceased and Amanullah (appellant) to have beaten him (Mewa deceased) with iron rod, thereby causing him two injuries on the head and one on the hand. After thus assaulting the deceased, both the accused ran away. Mewa was taken to the police station, Ghosi where he lodged the F.I.R. at about 2.30 p.m. Thereafter, he was sent to the hospital. He died at about 3.45 p.m. on September 20, 1964. The case against the two accused persons was originally registered under S. 323, I. P.C. which was later converted into one under S. 304, I.P.C. The trial court, believing the prosecution story, convicted both the accused persons as already noticed.

3. On appeal a learned single Judge of the Allahabad High Court felt that Bashir, who was about 80 years of age, was too old to have caught hold of the deceased by the waist as alleged and in any event it was difficult to believe that such an old man could have managed to escape. On this reasoning Bashir was given benefit of doubt and acquitted. The case of the appellant was, however, considered to be different. In his case the testimony of Maula (P.W. 1) and Shyam Pyar (P.W. 2) and the F.I.R. were considered to be sufficiently convincing to establish his guilt beyond any reasonable doubt. His conviction and sentence were accordingly upheld and his appeal dismissed.

4. Before us Shri S. C. Agarwala, learned counsel for the appellant has contended that Shyam Pyar (P.W. 2) is not the person who was actually present at the spot and had witnessed the occurrence. He was produced before the court wrongly representing him to be the person mentioned in the F.I.R. The witness who was stated in the F.I.R. to have witnessed the occurrence was Ram Pyar who was apparently not willing to support the prosecution case: the prosecution, therefore, adopted the device by producing Shyam Pyar instead. This is the main argument on which the learned counsel has tried to build his challenge to the judgments of the two courts below.

5. Now Ram Pyar and Shyam Pyar are real brothers. It is no doubt true that in the F.I.R. (Ex. Ka-7) Mewa did state that Ram Pyar s/o Sadaphal and Maula s/o Paul residents of Fatehpur Tal Narza, police station Ghosi were witnesses to the occurrence. The point now urged before us is stated to have been raised