JUDGMENT :

VIVEK JAIN, J.

1. This appeal under section 374(2) of the Code of Criminal Procedure (for brevity “Cr.P.C.”) has been filed by the appellant against the judgment of conviction and order of sentence dated 09.01.2013 passed by the First Additional Sessions Judge, Chhatarpur in Sessions Trial No.189/2011, whereby appellant has been convicted for offence punishable under section 302 of Indian Penal Code (IPC) and sentenced to undergo Life Imprisonment and fine of Rs.2,000/- under Section 25(1-B)(a) of the Arms Act and sentenced to undergo R.I for one year and fine of Rs.1,000/- and under Section 27 of Arms Act and sentenced to undergo Rigorous Imprisonment for 3 years and fine of Rs.1,000/- with default stipulations.

2. The prosecution case in brief is that a Dehati nalish (Ex.P/1) was lodged on 20.03.2011 at 9:20 PM by Kamlesh (Pw-1). In the said Dehati nalish it was mentioned that on 20.03.2011 at about 9:00 PM, the complainant Kamlesh along with his younger brother Ramnarayaran and nephew Vinod were sitting on roof of their house and at that time the present appellant Surajpal fired one gun shot which hit Ramnarayan (deceased) in upper part of waiste (right side of lower chest) and the deceased Ramnarayan collapsed on the roof after giving a cry of distress ('guhar' in local dialect). The other persons present on the roof also gave cries of distress and then the present appellant fired 1-2 more gun shots and climbed down. The present appellant had climbed up the Neem tree to fire gun shots and when the complainant and other persons give calls of distress, then he climbed down the Neem tree and fled away. Co-accused persons Raghuwar, Gulal, Mangal, Angad, Mulayam Singh, Devraj, Haricharan and Asharam were standing on the ground below (these co-accused persons have been acquitted by the trial Court). When the co-accused persons saw the complainant party, then they started abusing the persons of complainant party and fired gun shots which fortunately did not hit any other person and then the co-accused persons fled away. First Information Report (Ex.P/35) was lodged at 22:30 hours in the night on 20.03.2011 itself. The deceased was taken firstly to Primary Health Centre, Gaurihar from where he was referred to District Hospital, Chhatarpur but he was declared brought dead at District Hospital, Chhatarpur. The merg intimation (Ex.P/34) was registered at Chhatarpur on the basis of intimation received from District Hospital, Chhatarpur on 21.03.2011 at 03:45 in the morning.

3. The medical examination of the deceased was carried out at PHC (Gaurihar) at 9:45 PM on 20.03.2011 and in the medical examination report (Ex.P/38), it has been recorded that there is a entry wound of gun shot injury measuring 2.2 x 2 cm on right side of chest. The margins of entry wounds are inverted with oozing of blood. The patient was found to be in very serious condition.

4. As per merg Intimation Report (Exhibit P-34), the deceased expired at 2:30 AM on 21.03.2011 and postmortem examination was conducted on 21.03.2011. The postmortem report is (Ex.P/40). As per the findings of postmortem report a gun shot entry wound was found between ninth and tenth ribs at posterior line. The entry wound had blackening around at measuring 6 cm. The margins of the entry wound were inverted. The other injury was a swelling in left side of chest beneath collar bone measuring 1x1 cm. Upon opening the said swelling one metal piece was found which was taken out and handed over to Police. The cause of death was stated to be gun shot injury.

5. On the basis of statements recorded and material collected during the course of investigation by the police, the charge-sheet was filed before the Magistrate against the present appellant and other co-accused persons under Sections 147, 148, 149, 307 and 302 of IPC and Section 25/27 of Arms Act. The case was committed to sessions and the Sessions Court framed charges against the present appellant under Section 148, 302 and 506-II of I