Point of Law : Judgment of convicting the accused under Section 302 of I.P.C. is bad in eye of law. At the most if this Court does not deem it fit granting benefit/Acquittal, it is a case of Section 304 part II of I.P.C.

JUDGMENT :

1. Heard Sri Sunil Kumar, learned counsel for the appellant and Sri N.K. Srivastava, learned A.G.A. for the State.

2. This appeal challenges the judgment and order dated 18.9.2015 passed by the Additional Sessions Judge, Banda in Sessions Trial Nos. 36 of 2011 & 37 of 2011 convicting & sentencing Munna Singh, appellant, for commission of offence under Sections 302 of Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') to undergo rigorous imprisonment for life with fine of Rs.20,000/-, in case of default of payment of fine, further to under go four month imprisonment.

3. Facts as culled out from the First Information Report, are that on 24.11.2010 at about 12.30 p.m., accused-respondent, Munna Singh came near the deceased, son of the complainant, who was sitting at (chabutra) and started quarreling with deceased and after some time, the accused took out his country made pistol (tamancha) and fired. Saida Parveen, daughter-in-law of complainant who was drawing water by hand pump had seen the incident. Md. Nafees Khan and his mother-in-law had also come at the spot on hearing the voice of gun shot and on hearing shouting of Saida Parveen that deceased-Momin was shot by Munna Singh. Munna Singh took out second country made pistol, threatened them and ran away from the place of incident. The son of complainant ran after the accused but due to fear returned back to the scene of incident. It was stated that he called for help but because of fear of Munna Singh, nobody came for rescue.

4. This F.I.R. culminated into recording of statements of the witnesses and charge-sheet was laid against the sole accused. The accused was alleged to have committed murder, hence, he was committed to the Court of Sessions. The accused being summoned, pleaded not guilty and wanted to be tried.

5. The prosecution examined 7 witnesses who are as follows:

6. In support of ocular version following documents were filed:

7. On the witnesses being examined and the prosecution having concluded its evidence, the accused was put to questions under Section 313 Cr.P.C. The accused-respondent also examined Chandra Prakash alias Changu as D.W.1. He has taken defence that as he is the only person belonging and professing the different religion, all the witnesses and complainant have colluded with each other to see that he is convicted so that he may vacate the said area.

8. Submission of Sri Sunil Kumar, learned counsel for the appellant, hinges on the following decisions and learned counsel for the appellant has placed reliance on Mahavir Singh Vs. State of Madhya Pradesh, (2016) 10 SCC 220, Brijpal Singh Vs. State of M.P., 2004 SCC (Cri) 90, Shanker Vs. State of Madhya Pradesh, (2018) 15 SCC 725, Rajesh Alias Sarkari and Another Vs. State of Haryana, (2021) 1 SCC 118, Alim Ullah Vs. State, 2003 (46) ACC 1151 and submitted that this is a case of total improbability as medical evidence is contrary to the deposition of P.W.2, the so called eyewitness, who was not an eye-witness but posed as such and even if she was eye-witness, the genesis of offence as narrated by P.W.1 are contradictory to that narrated by P.W.2.

9. It is submitted by learned counsel for the appellant that the accused who is in jail since 2011 requires to be granted benefit of doubt on the basis of aforesaid judgments and on the basis of gun shot injury which was men