JUDGMENT

Arijit Pasayat, J.-This appeal by the State of Uttar Pradesh questions legality of the judgment rendered by a Division Bench of the Allahabad High Court holding that the respondent Virendra Prasad was guilty of offence punishable under Section 304 Part II of the Indian Penal Code, 1860 (in short the IPC ) and not under Section 302 IPC as was contended by the prosecution. Custodial sentence of the respondent was limited to the period undergone by him in custody i.e. about 8 months. Though the State had filed appeal against the two persons including respondent Virendra who had faced trial, the special leave petition so far as the other accused i.e. Ram Prasad was dismissed by order dated 20.10.1997.

2. Background facts giving rise to the present appeal are essentially as follows:

On getting information that accused Ram Prasad and his two sons (accused Virendra and one Gorakh) were operating gambling den in his house, S.K. Astik (PW-6) organized a raid after obtaining search warrant. The search party consisted of ASI, Gokaran Nath Pandey (hereinafter referred to as the deceased ), ASI R.P. Tripathi (PW-4) and, head constable Anand Shanker Tiwari (PW-5) amongst others. The raid