The court determined that the appellant's actions constituted culpable homicide under Section 304 Part II due to lack of intent, modifying the conviction from murder under Section 302.

JUDGMENT :

Pradeep Kumar Srivastava, J.

1. We have already heard, Mr. Jitendra Shankar Singh, learned counsel for the appellant as well as Mr. Shiv Shankar Kumar, learned Addl. P.P. appearing for the State.

2. This instant criminal appeal is preferred against the judgment of conviction dated 22.11.2003 and sentence passed on 24.11.2003 by learned Additional Sessions Judge-V, Palamau in S.T. Case No.135 of 2003, whereby and whereunder the appellant has been convicted for the offence under Section 302 of the INDIAN PENAL CODE and sentenced to undergo imprisonment for life.

3. Factual matrix giving rise to this appeal as depicted in the fardbeyan of informant namely Arun Prasad (P.W.5) is that informant is the eldest among three brothers, next brother Kanhaiya Lal aged about 44 years and youngest brother is Raj Kumar Gupta aged about 32 years. There is dispute regarding partition of family property between the parties. It is alleged that informant is running a General Merchant Shop in the name and style ‘Arun Kirana Bhandar’ situated at a distance of 100 yards from his house at Redma Ranchi Road. It is further alleged that on 07.05.2002 at about 07:00 am, informant went to open his shop, meanwhile his younger brother Kanhaiya Lal’s son namely Vinay Kumar Gupta came to the shop and protested against the opening of the shop by the informant. The informant went to his house and informed to his younger brother Raj Kumar about the said resistance caused by Vivek Kumar Gupta in the opening of the shop and returned to the shop along with him and started opening the shop but his brother Kanhaiya Lal who was suffering from kidney ailment, came with sword towards the shop but he was apprehended by the local persons present near the shop. Upon this Kanhaiya’s elder son Vivek Gupta @ Vicky (appellant) came to the shop and started abusing and threatening to the informant and his younger brother. Upon some scuffle, Vicky also went away but within interval of 10 minutes returned with a pistol and fired a shot in air which hit no one. Thereafter, Vicky started loading second cartridge in the pistol then younger brother of the informant namely Raj Kumar caught hold of him but Vivek Gupta fired a shot causing injury on head from the close range as a result of which Raj Kumar Gupta fell down on the spot and the accused Vicky managed to flee away. The injured was brought to Sadar Hospital, Daltonganj where he was declared dead by the attending Medical Officer.

On the basis of above information, F.I.R. was registered as Sadar (T) P.S. Case No.121 of 2002 dated 07.05.2002 for the offences under Section 302 /34 of the I.P.C. and Section 27 of the ARMS ACT against all the three accused persons namely Kanhaiya Lal, Vicky Kumar Gupta and Vinay Kumar Gupta.

4. After completion of investigation, the accusation was found true against present appellant only and other co-accused persons were not sent up for trial. Accordingly, charge-sheet was submitted against the sole appellant of this case for the offences under Section 302 of the I.P.C. and Sections 25(1)(b)A, 26 and 27 of the ARMS ACT . After cognizance, the case was committed to the Court of Sessions. After hearing the prosecution and defence, the charge under Section 302 of the I.P.C. was framed against the appellant and no charge for the any of the Sections of ARMS ACT were framed. The accused denied from the charges and pleaded not guilty and claimed to be tried.

5. In the course of trial, altogether twelve witnesses were examined by the prosecution namely P.W.1 Dr. Kundan Prasad, P.W.2 Jay Prakash Tiwari, P.W.3 Ajay Prasad, P