JUDGMENT :

Harsh Kumar, J.

1. This appeal has been filed against the judgement and order dated 23.8.1986 passed by Vth Additional Sessions Judge, Azamgarh in Sessions Trial No.15 of 1984 convicting the appellant for the offences under Section 304 (I) and Section 323 I.P.C. and sentencing with rigorous imprisonment for five years under Section 304 (I) and rigorous imprisonment for a period of three months under Section 323 I.P.C.

2. Heard Sri Ravindra Kumar Mishra, learned counsel for the appellant and Sri L.D. Rajbhar, learned AGA for the State.

3. The brief facts relating to the appeal are that on 11.04.1981 at 6:20 P.M. a FIR was lodged by Vijayi son of Raja Mallah stating that at 4:00 P.M, he was processing his crop a fruit of BAIL (Sriphal) fell on the heep of his wheat which was taken by him and he started eating it, then Ramawati and Tarva respectively sister and wife of Prabhu, started abusing the first informant in the meantime and Prabhu appeared there with lathi and started abusing; that the parents of first informant were at their door and asked Prabhu and members of his family to desist from abusing and Ram Surat, Loutu and Pakhandi who had arrived also asked them, not to a