IMPORTANT POINT
The statement of a victim of incident cannot be relied upon for recording conviction it has falsity and material contradictions.

JUDGMENT

A.N. Dikshita J. This appeal has been filed by Mustaq and Pratap against the judgment and order dated 22.3.1979 passed by Sri J.P. Sharma, 4th Additional Sessions Judge, Banda. By the impugned order Mustaq has been convicted under section 323 and section 323/34 I.P.C' and sentenced to one year's R.I. and a fine of Rs. 1000/- and in default of payment of fine six months' further rigorous. Imprisonment while Pratap has been convicted under sections 323/34 I.P.C. and sentenced to six months R.I. and a fine of Rs. 500/- and if default of payment of fine four months' further rigorous imprisonment.

2. The prosecution case, in brief, is as follows: Mustaq appellant is a neighbour of the complainant Ali Hasan and is also nephew. Both of them have their housel in village Saya P.S Bisenda direct Benda. On 11.5.1976 at about 6.00 P.M. when Ali Hasan returned to his house after doing his work in fields he saw that his daughter Rukhsana aged above 5 years and Suleman aged about 6 years were quarrelling amongst themselves. Both the children were separated and reprimanded by Ali Hasan. After sometime Mushtaq appellant brother of Suleman along with the other appellant Pratap came armed with lath is and started hurling abuses to Ali Hasan. When Ali Hasan tried to stop them from abusing him. Ali Hasan was assaulted with lathi, fists and slaps. On an alarm being raised by Ali Hasan his wife Khaliqun rushed to his rescue but she too was between by fists, legs and lathi On the alarm of both the victims Anisa, their daughter and Rais and Jagdish Prasad of the village also came. On their intervention the mailer was specified and the appellants went towards the village. Smt. Khaliqun wife of Ali Hasan, had received some internal injuries on some vital parts of her body. She became unconscious after receiving the injuries and died after half an hour of the incident.

3. A report of the incident is said to have been dictated by Ali Hasan to one Badri Prasad and it was lodged at 9 30 P.M. at P.S. Bisenda, the Police station being seven miles from the place of incident. On the basis of the written report a case under sections 304/323/504 I.P.C. was registered against the accused appellants.

4. The investigation of the case was taken up by Abdul Halim. S I. The inquest report of the de1d body of Smt. Khaliqun could not be prepared at night and it was prepared the next by at 6.03 A.M. Ultimately a charge sheet was Submitted against the appellants under sections 302/34 and 313/34 I P.C.

5. Dr. TN. Singh conducted the postmortem examination on the dead body of Smt. Khaliqun He found the body if an advanced stage of do composition. The body and face were bloated. The Doctor noted the following ante mortem injuries on the dead body:

1. A braded contusion 6 cm 11/2 cm over back of right forearm in the lower third.

2. Contusion 12 cm. X 8 cm. over right iliac fossa.

6. On internal examination the Doctor found the lungs congested. In the abnomen eachymosis was present in an area of 15 cm X 12 cm in the right iliac fosea and lower part of abnomen right side, In the peritoneum eachymosis and haematoma was present on the left side around spleen and left kidney and the abnomen cavity contained about 11/2 liters dark colour thick blood. The spleen was congested all over and there were two lacerations of different sizes. In the opinion of Dr. Singh the death was caused due to shock and haemorrage produced by the repture of the spleen.

7. The injuries of Ali Hasan were examined by Dr. Bhatnagar on 11.5.1976 at 9.30 P.M. One abrasion and two bruises were found on his person. All the injuries were found fresh, simple and caused by some hard blunt object.

8. In support of its Case the prosecution examined complainant Ali Hasan. P.W.I, Km. Anisa, P.W. 2. KM. Bukhsana. P.W. 3, Badri Prasad. P.W. 4, and Abdul Halim, ST., P.W.5.

9. Both the appellants denied the incident and stated that they had been falsely implicated in the case.

10. The trial after reconsidering t