ORDER :

1. This criminal appeal has been preferred against the impugned judgment and order dated 4.12.2009 passed by the High Court of Himachal Pradesh at Shimla dismissing the Criminal Appeal No. 104 of 2007 and affirming the judgment and order of Fast Track Court, Mandi (H.P.) in Session Trial Nos. 32 of 2004 and 80 of 2005 by which and where under, the Appellant stood convicted under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as the Indian Penal Code) and has been awarded life sentence alongwith a fine of Rs. 10,000/- in default of payment of fine, to further undergo one year imprisonment.

2. Facts and circumstances giving rise to this appeal are as follows:-

(a) As per the prosecution, an altercation took place between the Appellant and his son on 14.6.2004 at about 9.00 P.M. The daughter of the Appellant named Shukari Devi called Devinder Kumar (deceased) and his mother Bhagti Devi (PW-1), who were the next door neighbour. Devinder Kumar (deceased) and Bhagti Devi (PW-1) reached the house of the Appellant and some altercation took place between the Appellant and the deceased. The accused fired at him and after receiving a gun shot injury, he fell down and died. The incident was witnessed by Bhagti Devi (PW-1) and Dina Nath (PW-3), son of accused/ Appellant. After hearing the noise of the gun shot other neighbours also reached the spot. An FIR was lodged at Police Station: Joginder Nagar on 15.6.2005 under Section 302 Indian Penal Code and the Appellant was arrested.

(b) After investigation of the case, a charge-sheet was filed and as the Appellant denied his involvement, the trial commenced. After conclusion of the trial, placing reliance on the evidence of PW-1 and PW-3, the trial court convicted the Appellant and sentenced as referred to hereinabove.

(c) Aggrieved, the Appellant preferred appeal before the High Court which has been dismissed vide impugned judgment and order dated 4.12.2009.

Hence, this appeal.

3. Shri T.V.S. Raghavendra Sreyas, learned Counsel appearing on behalf of Ms. Urmila Sirur, learned Amicus Curiae, has submitted that the prosecution has not led any evidence to show that the offence committed by the Appellant was pre-mediated. Nor it has been established by leading an evidence that after picking an altercation with the deceased, the Appellant gone into the house and brought a gun. In this respect, there is no evidence on record and it is a case wherein the Appellant could be convicted under Section 304 Part-I Indian Penal Code.

4. Per contra, Shri Ajay Marwah, learned Counsel appearing on behalf of the State, has opposed the appeal contending that as the court below has concurrently held that it is a case of simple murder, therefore conviction under Section 302Indian Penal Code to be upheld and it is not a case where the conviction may be converted into Section 304 Part-I Indian Penal Code and sentence may be reduced.

5. We have considered the matter, undoubtedly, it was a case wherein the deceased and his mother Bhagti Devi (PW-1) had been called to intervene and pacify the matter. It is also clear from the evidence on record that an altercation took place between the Appellant and the deceased. There is no iota of evidence to show that there was any prior intention of the Appellant to kill the deceased. As per the medical and ocular evidence, there was only gun shot fired by the Appellant which proved to be fatal for deceased. More so, the prosecution failed to marshal any evidence to show that the gun was in his hand when the deceased entered his house. In such peculiar facts and circumstances of the case, we agree with the submissions advanced by Shri Sreyas, learned Counsel for the Appellant.

6. In these facts and circumstances of the case, we are of the considered view that the appeal deserves to be allowed partly. Hence, the conviction of the Appellant is set aside under Section 302 Indian Penal Code and is convicted under Section 304 Part-I Indian Penal Code and award sentence