JUDGMENT 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. 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. 4. At the trial the accused pleaded not guilty to the charges and claimed to be tried. The prosecution in support of its case examined 9 witnesses and the accused did not lead any evidence in defence. The learned Addl. Sessions Judge after analysing the prosecution evidence held that Mst. Kalia died on 18th June, 1973 at about 11 p.m. due to gunshot injury inflicted by accused Mangiya-Learned Sessions Judge thus found the accused guilty of offence under Section 302 IPC and awarded the sentence of imprisonment for life. 5. It was contended by Mr. Gupta, learned counsel for the accused-appellant that there was no motive of the crime and the occurrence took place at the spur of the moment without any premeditation. It was contended that it was proved from the statement of Dr. B. K. Chakravarti that the accused had sustained nearly 27 injuries which go unexplained from the side of the prosecution. It is thus contended that from the above injuries it is clearly proved that the accused was given merciless beating by the complainant party and in the exercise of right of private defence the accused fired a gun shot. In the alternative it is contended that at the most it was a case of exceeding the right of private defence and the offence committed by the accused falls under section 304 part I I.P.C. 6. In the alternative it is contended that at the most it was a case of exceeding the right of private defence and the offence committed by the accused falls under section 304 part I I.P.C. 6. On the other hand, learned Public Prosecutor supported the judgement of the learned Additional Sessions Judge and contended that the injuries found on the body of the accused were of superficial nature and the same did not give any right of private defence to the accused. It was also submitted by the learned Public Prosecutor that it was a clear case of deliberate intentional murder and the offence committed by the accused clearly fell under section 302 I.P.C. 7. We have given our careful consideration to the arguments advanced by the learned counsel for the accused-appellant and the learned Public Prosecutor and have also perused the record. It is proved from the evidence of PW. 2 Motia, PW. 4 Mst. Kheri, and PW 8 Harbans, who are eye witnesses of the occurrence that Mst. Kalia died on account of gun shot injury inflicted by accused Mangiya. PW 2 Motia s/o deceased Mst. Kalia has admitted in cross-examination that there was no enmity between him and accused Mangiya. He also admitted that the accused had no quarrel with his mother also. He also admitted that Mangiya accused had not taken excess drink but had taken only one or two pegs of liquor. On a question being put to him in cross-examination he denied to have given any beating to the accused. Similarly other witnesses of prosecution have totally denied the suggestion of inflicting any injury whatsoever on the body of the accused. On the contrary it is proved from Ex. PI and the statement of Dr. B. K. Chakravarty PW 1 that the accused had nearly 27 bruises, contusions and lacerated wounds. One of the injury out of these was a contusion and lacerated wound 1" x 3", ⅓ x ⅓" scalp deep on the frontal region of the scalp. The above injuries on the body of the accused go totally unexplained from the side of the prosecution. One of the injury out of these was a contusion and lacerated wound 1" x 3", ⅓ x ⅓" scalp deep on the frontal region of the scalp. The above injuries on the body of the accused go totally unexplained from the side of the prosecution. It is no doubt true that neither from these injuries nor from other evidence placed on record it has been proved that there was any danger of grievous hurt of life to the accused so as to give him any right of exercise of private defence in the facts and circumstances of this case. How ever, from the above injuries it is definite that simple hurt was caused to the accused and though he had no justification to use a gun, but his act amounts to exceeding right of private defence. Learned Public Prosecutor submitted that there was no obligation on the prosecution to explain the injuries looking to their Superficial nature but in our view, the genesis and the manner in which the accused fired the gun.shot coupled with the injuries found on his body goes to show that the act committed by him amounts to exceeding his right of private defence in the facts and circumstances of this case. As already indicated above there was no motive for the crime nor there was any enmity between the accused and Mst. Kalia or her son Motia. The act was committed at the spur of the moment and admittedly according to the prosecution after some quarrel having taken place between the accused and Motia shortly before the incident. The case, therefore, falls under Part 1 of Section 304 i.P.C. and not under Section 302 I.P.C. The accused was arrested on 19th June, 1973 and was released on bail somewhere after 18th April, 1980, when an order for releasing the accused on bail was passed by this court. The accused, in these circumstances, has already remained in jail for about 7 years. Thus, taking m view the entire facts and circumstances of the case we consider it proper that the sentence of the period during which the accused had already remained in jail, would meet the ends of justice. 8. In the result, we partly allow the appeal. The accused, in these circumstances, has already remained in jail for about 7 years. Thus, taking m view the entire facts and circumstances of the case we consider it proper that the sentence of the period during which the accused had already remained in jail, would meet the ends of justice. 8. In the result, we partly allow the appeal. The conviction of the accused under section 302 I,P.C. is set aside and instead he is convicted under Section 304 Part I I.P.C. and sentence him to the period already under-gone by him. The accused is already on bail as such he need not surrender to his bail. His bail bonds .are hereby discharged. *******