N.M. Kasliwal, J. - (1.) This criminal appeal by accused Mangiya @ Mangi Lal is directed against the judgment of the learned Additional Sessions Judge, Baran, dated 5th November, 1974, convicting the accused under section 302 I.P.C. and sentencing him to imprisonment for life.
(2.) It is not necessary to mention detailed facts of the case as the only contention raised by learned counsel for the accused-appellant is that in the facts and circumstances of this case, the accused could have been convicted only under Section 304 Part I I. P. C. and not under Section 302 I. P. C.
(3.) In order to appreciate the aforesaid argument of the learned counsel for the accused-appellant the prosecution story put in brief is that on 18th June, 1973 after sun-set one Devlal visited the house of PW 2 Motia and invited him for drinks. Motia agreed to the invitation and both Dev Lal and Motia went near the house of accused Mangiya. Mangiya brought the liquor and joined in taking liquor with the other two persons. After taking liquor for sometime exchange of hot words took place between Dev Lal and the accused in connection with raising of a hut. Accused and Dev Lal grappled with each other but were pacified by PW 2 Motia. Dev Lal then left for his house. There-after quarrel look place between accused Mangiya and PW 2 Motia. In the mean time Amra father of accused Mangiya and PW 4 Mst. Kheri W/o Motia also appeared on the scene. Mst. Kheri tried to separate her husband and accused and brought her husband Motia to her house. Prosecution case further is that the accused in the mean time went to bis house and came with a gun Hearing the noise Mst. Kalia (deceased) mother of Motia tried to pacify the accused and pushed him away from her house. At this stage the accused fired a gun shot which hit near right temporal region of Mst. Kalia, which resulted into her instantaneous death. The occurrence was also witnessed by PW 3 Bhogi Lal and PW 8 Harbans, who had come on the spot. Thereafter, Mst. Kheri and Motia over powered the accused and snatched the gun from him. PW 5. Kandhi a neighbour also arrived at the spot hearing the noise of gun-shot and was asked by Motia to lodge a first information report in the police station. PW 5 Kandhi thereafter went to Police Station Bhanwargarh and lodged an F. I. R. Ex. P 6 orally in the morning at 5 a.m. on 19th June, 1973. The Police registered a case under Section 302 I. P. C. and got the autopsy conducted of Mst. Kalia by Dr. Umanand PW 9. Certain injuries on the body of accused were also got clinically examined by PW 1 Dr. B, K. Chakravarti on 20th June, 1973 and he has filed injury report Ex. P 1 after examining the accused. The police after usual investigation filed the challan in the Court of Munsif Magistrate, Baran, who in turn committed the case for trial to the court of Addl. Sessions Judge, Baran.;