JUDGMENT

Raju, J.- Special leave granted.

2. The State of Uttar Pradesh has come up in appeal against the judgment dated 13.2.98 of the Division Bench of the Allahabad High Court in Criminal Appeal No. 1299 of 1991 altering the conviction of the respondent from one under Sections 307 and 302, IPC, into one under Sections 302 and 304 Part-II substituting, as a consequence thereof, the sentence of five years R.I. and life imprisonment under Sections 307 and 302, IPC, respectively with five years R.I. and ten years R.I.

2. The case of the prosecution is that the respondent, a Carpenter by profession, at about 4 a.m. in the morning of 14.9.1988 entered the Jhopri (hut) of one Hori Lal, PW-2, who gave the first information with reference to the occurrence and is said to be the father of the deceased, and started assaulting Km. Phoolmati, the victim, with a rukhani (an implement normally used by the Carpenters). She raised an alarm on which PW-2 and Kalawati, PW-1, the mother of the victim, woke up and tried to intervene, but in the process the respondent gave some blows to them as well and after throwing away the rukhani he ran away from the place. The respondent was identified in the lig