IMPORTANT POINT
Where accused fired gun shot from a close range and aiming at deceased, offence would be u/s 302 IPC and not u/s 304 Part II IPC.

JUDGMENT

Arijit Pasayat, J.-This appeal by the State of Uttar Pradesh questions legality of the judgment rendered by a Division Bench of the Allahabad High Court holding that the respondent Virendra Prasad was guilty of offence punishable under Section 304 Part II of the Indian Penal Code, 1860 (in short the IPC ) and not under Section 302 IPC as was contended by the prosecution. Custodial sentence of the respondent was limited to the period undergone by him in custody i.e. about 8 months. Though the State had filed appeal against the two persons including respondent Virendra who had faced trial, the special leave petition so far as the other accused i.e. Ram Prasad was dismissed by order dated 20.10.1997.

2. Background facts giving rise to the present appeal are essentially as follows:

On getting information that accused Ram Prasad and his two sons (accused Virendra and one Gorakh) were operating gambling den in his house, S.K. Astik (PW-6) organized a raid after obtaining search warrant. The search party consisted of ASI, Gokaran Nath Pandey (hereinafter referred to as the deceased ), ASI R.P. Tripathi (PW-4) and, head constable Anand Shanker Tiwari (PW-5) amongst others. The raid was conducted after lot of meticulous planning, because the accused Ram Prasad was known to be a notorious anti-social. The plan to raid the house was chalked out and the raiding party consisted of policemen and public men. They were divided into three groups. The first party was to stay outside the house, the second party was to be on the ground floor of the house and the third party was to go upstair. It consisted of circle inspector O.P. Agnihotri, PW-6, the deceased, injured PWs 4 and 5 and others. Police officials Ram Pal and Dinanath were deputed to proceed ahead to get the door opened. Members of the third group went behind those two constables. They covered the doors of the accused and gave necessary signal to the raiding party. Thereupon the members of the second and third groups entered into the house of the accused. On reaching the first floor of the house the members of the third group found 11 persons engaged in gambling. Both accused Ram Prasad and Virendra Prasad were making collections. They entered the eastern room where the gambling was going on and produced the search warrant to accused Ram Prasad. All the 11 persons engaging in gambling were required to stand up to facilitate their search by the police officials. When the search was in progress, both the accused persons and Gorakh slipped out of that room and ran towards the western room. Gorakh disappeared and managed to escape. Both the accused persons entered into the western room. Hearing the shouts of PW-6 that the accused were running away, the deceased and the two injured PWs 4 and 5 chased them. Accused Ram Prasad fired his rifle which did not hit anybody. Deceased caught hold of Ram Prasad and dragged him outside the room to the balcony. Accused-respondent Virendra Prasad snatched the rifle from the hands of his father, and started firing on the members of the raiding party. In all he fired seven rounds. Because of gunshots, deceased, PWs 4 and 5 received injuries. PW-6 managed to reach behind the accused Virendra and caught him from behind. He tried to snatch the rifle from his hand. But accused-respondent Virendra Prasad was not prepared to part with it. Then some members of the police party hit him with the batons which they were holding, and managed to take possession of the rifle. PW-6 found a live cartridge in the magazine of that rifle and one live cartridge was found in its chamber. Eight blank cartridges were also found at the scene of offence. The injured persons were immediately sent to the hospital, where deceased breathed his last. Case was registered on the basis of report on 4.11.1972 at 4.30 a.m. In view of the deceased s death the case which was originally registered for offence punishable under Section 307 IPC was converted to Section 302 IPC. Investiga