Sanjay Kishan Kaul JUDGMENT
L. Nageswara Rao, J.
1. The Respondent was convicted Under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and sentenced to undergo life imprisonment by the Trial Court. The High Court converted the conviction to an offence Under Section 304 Part I, Indian Penal Code and sentenced the Respondent to 10 years rigorous imprisonment. Aggrieved thereby, the State of Uttar Pradesh is in appeal before us.
2. PW-1, Bahadur lodged an FIR on 22.03.2000 in which it was stated that a Panchayat was held at the residence of one Kanhai, at noon on 22.03.2000. There was a dispute between his nephew Nokhey and the Respondent. During the course of the Panchayat, Rakesh, son of the complainant arrived at 3.30 p.m. from his agricultural field. The Respondent saw Rakesh and stated that he will kill him prior to the settlement of the dispute before the Panchayat as Rakesh had an evil eye on his wife and was visiting his house. Santosh, the younger brother of the Respondent also arrived at the spot and exhorted the Respondent to kill Rakesh. When Rakesh tried to run to save himself, the Respondent took out a pistol and fired at Rakesh. Rakesh succumbed to the fire arm injury. The inquest was conducted on the next day i.e. 23.03.2000 and the dead body of the deceased Rakesh was sent for post-mortem examination. As per the post mortem certificate (Ex.Ka. 11), the following injuries were found on the deceased:
Gunshot wound of entry on right side back level of T/10 and T/11, 2 cm lateral to spine size 2 x 2 cm x chest cavity. Blackening, tattooing present, margins inverted. Direction backward to forward.
On the internal examination Doctor recovered 33 small metallic pallets and wadding pieces from the chest cavity lower part. The 10th and 12th thoracic vertebra found fractured on right side. 10th and 12th ribs were found fractured on right side. Bluera was lacerated. Right lung was lacerated. 1.2 lt. blood was found in chest cavity. Right chamber of the heart was full and left empty. The stomach was empty. Small intestine contained gases. Large intestine contained faucal matter and gases. Spleen, kidney were pale. 50 ml. Urine was present in bladder. In the opinion of the Doctor deceased had died due to shock and hemorrhage as a result of ante mortem injuries. He had prepared the post mortem report in his own hand writing at the time of post mortem examination which is Ex.Ka. 11 on the record.
3. A charge Under Section 302 Indian Penal Code was framed against the Respondent and Santosh was charged Under Section 302 read with 34 Indian Penal Code. After a detailed consideration of the material on record including the oral testimonies of PW-1 and PW-2 who were the eye witnesses, the Trial Court held that the Respondent had fired at the deceased from his pistol as he had a doubt that the deceased was visiting his house with an evil eye on his wife. While the Trial Court acquitted Santosh, the Respondent was convicted Under Section 302 Indian Penal Code and sentenced to undergo life imprisonment and pay a fine of Rs. 5,000/-.
4. In the appeal fil........