M. S. A. Siddiqui, J.

( 1 ) THIS appeal is directed against the judgment and order dated 4. 5. 1998 passed by the Additional Sessions Judge in S. C. No. 25/91 convicting the appellant under section 304 Indian Penal Code and sentencing him to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 3000. 00.

( 2 ) SHORN of verbiage, the prosecution case is that Om Prakash (Public Witness -1) was residing in a servant quarter of Kothi No. 16, which was allotted to the appellant s father. On 31. 5. 1990, at about 9. 45 PM, the deceased Sher Singh accompanied by Bishambhar Singh (Public Witness -2) entered the said Kothi through the main gate and at that time they were drunk. Incensed by this, the appellant started beating the deceased Sher Singh. It is the prosecution case that the appellant gave a fist blow on the temple as a result whereof the deceased fell down on the manhole sewer and sustained the fatal injury. Immediately after the alleged incident, the appellant called the police to the spot. Thereupon one Assistant Sub-Inspector of Police Station Parliament Street came to the spot and arrested Bishambhar Singh (Public Witness -2 ). On the next morning i. e. on 1. 6. 1990, Sher Singh was removed to the hospital by Murari and Jagroop, where he was medically examined by Dr. R. K. Mehta (Public Witness -13) vide injury memo Ex. PW-13/a. On examination, Dr. R. K. Mehta (Public Witness -13) REFERRED TO Sher Singh to Surgical Emergency department of the hospital. On 6. 6. 1990, Sher Singh succumbed to the head injury. On 2. 6. 1990, SI Mohanlal (Public Witness -14) inspected the spot and recorded the statement of 0m Prakash (Public Witness -1) and sent it to the police station for registration of FIR. On 6. 6. 1990, SI Mohanlal (Public Witness -14), after receiving message about the death of Sher Singh, proceeded to the hospital and held inquest proceeding and sent the dead body for post-mortem examination. On 7. 6. 1990. Dr. L. T. Ramani (Public Witness -11) conducted autopsy over the dead body and opined that the death was due to coma resulting from the head injury vide post-mortem report Ex. PW-11/a. On completion of the investigation, the appellant was charge-sheeted for the offence punishable under section 304 IPC.

( 3 ) THE defence put forth by the appellant was a denial of the prosecution allegation. On an assessment of the evidence, the learned Additional Sessions Judge accepted the prosecution case and convicted the appellant as already indicated.

( 4 ) LEARNED counsel for the appellant vehemently argued that 0m Prakash (Public Witness -1) and Bishambhar Singh (Public Witness -2) are interested witnesses, that they did not witness the alleged incident and the learned Additional Sessions Judge committed serious error in relying upon their untrustworthy testimony to base the conviction. He further contended that as per the DD entry Ex. PW-12/b onp Assistant Sub-Inspector of the Police Station Parliament Street, on receiving a telephonic message from the appellant, came to the spot and found the deceased Sher Singh lying on the cot but none of the said witnesses informed him about the alleged incident. The Assistant Sub-Inspector did not even make any attempt to remove the injured to the hospital. He also submitted that the said DD entry further shows that the Assistant Sub-Inspector arrested Bishambhar Singh (Public Witness -2) and took him to the police station. According to the learned counsel, none of the said witnesses lodged a report at the police station about the alleged incident. On the contrary, on 2. 6. 1990, when S. I. Mohanlal (Public Witness -14) came to the spot, he recorded the statement of 0m Prakash (Public Witness -1), on the basis of which the FIR was registered at the police station. Thus, there was sufficient opportunity to embellish the facts and the FIR was Filed after due deliberation, the aforesaid circumstances, according to the learned counsel for the appellant, are sufficient to demol

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