Hon'ble Anil Kumar Agarwal,J.

Heard Sri Mewa Lal Shukla, Amicus curiae for the appellant and the learned A.G.A. for the State of U.P.

This appeal has been preferred by the appellant Raju @ Rajesh against the judgement and order dated 24.1.2004 passed by the learned Additional Sessions Judge/F.T.C.-3 Ghazipur in S.T. No. 100 of 2002 connected with S.T. No. 101 of 2002 whereby the appellant has been convicted for the offence punishable under section 302 I.P.C. and has been sentenced for the life imprisonment with a fine of Rs. 30,000/-, in default of payment of fine the appellant was to further undergo six months R.I. The appellant has been further convicted under section 25 Arms Act and sentenced for 3 years R.I. with a fine of Rs. 10,000/- in default of payment of fine, the appellant was further to undergo three months R.I. all the sentences shall run concurrently.

The facts in brief of this case, as mentioned in the FIR are :

That the first informant Raj Kumar son of Roop Chand( P.W.1) is a resident of Village Onhaich P.S. Sarai Lakhansi district Mau. He was married with the daughter of the deceased Tilakdhari Ram r/o Mardaha district Ghazipur. The deceased Tilakdhari Ram was having no son, the first informant used to come and stay at his Surural Mardaha Bazar for looking after the family affairs of the deceased, at the time of the alleged incident, after taking the dinner, he was lying and sleeping along with the deceased in the Varandah of the house. A lantern was illuminating there. The appellant Raju who has taken his education in his Nanihal, was also residing there in Mardaha Bazar, he had developed illicit relationship with the wife of Indrajeet for which a Panchayat of the villagers was called in which indrajeet was ousted from the caste, in the said incident the deceased Tilakdhari had played major role, which was ill felt by the appellant Raju, due to this enmity he came to the house of the deceased at about 11.30 p.m. on 6.2.2002 and called the deceased by his name, on his calling both the deceased and the first informant awoke, all of sudden the appellant discharged two shots which hit on the chest of the deceased, after sustaining the gun shot injury the deceased fell down on the ground and started writhing in pain. On the sound of hearing the neighbour Bhola and Sanehi came at the place of occurrence by flashing the torch light, the appellant was properly identified in the torch light, after sustaining the gun shot injury, the deceased had died and with the help of the villagers, the deceased was taken to the police station where the first information report was lodged on 7.2.2002 at 00.15 a.m. after lodging the FIR inquest report was prepared at the police station by the Officer-in-Charge of the police Station Mardaha on 7.2.2012 from 2.00 a.m. to 4.00 a.m. and thereafter the dead body was sent to the police line, the same was received at the police line on 7.2.2002 at 12.30 p.m. From the police line, the dead body was sent to mortuary where it was received on 7.2.2002 at 3.55 p.m. The post mortem examination report was done on 7.2.2002 at 4.00 p.m. where the paper were received on 7.2.2002 at 3.30 p.m. The I.O. came to the place of incident, he prepared the spot inspection note, the recovery memo of two torches and one lantern was prepared in the presence of the witnesses. Thereafter, both the torches were returned to Bhola Ram and Ram Sanehi, the same were given in their Supurdgi. The lantern was returned to the first informant Rajesh Kumar in his Supurdgi on 7.2.2002, a bullet was recovered from the place of incident, its recovery memo was prepared on 7.2.2002 in the presence of the witnesses Raj Kumar Ram and Hari Narain Ram.

During investigation the appellant was arrested on 26.2.2002 and at his pointing out one country made pistol kept in a polythene bag was recovered from Sarpatha and he confessed before the police that it was the same country made pistol by which the deceased w