G.M. LODHA, J.— Appellant Ladu has filed this appeal against his conviction under Section 302 I.P.C. by the Sessions Judge, Ajmer for committing murder of Mangi Lal. Appellant Ladu was charged as under:—

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igyk %& fd fnukad 15 fnlEcj 1976 dks fnu ds yxHkx 1-30 cts yhMh dk okfM;k ou Jhuxj esa vkius ekaxhyky dh gR;k djus ds vfHkkki ls mls dqYgkM+h ls xEHkhj o lk/kkj.k pksVsa igqapkbZ tks pksVsa ,d O;fDr dks gR;k djus ds fy, lk/kkj.kr;k i;kZIr Fkh vkSj mu pksVksa ls mldh e`R;q gks xbZA bl izdkj vkius Hkkjrh; n.M lafgrk dh /kkjk 302 ds vUrxZr n.Muh; vijk/k fd;k tks fdl bl lsku U;k;ky; ds izlaKku esa gSA

nwljk %& fd fnukad 15-12-76 dks fnu ds yxHkx 1-30 cts yhMh dk okfM;k ou Jhuxj esa vkius LosPNk iwoZd gtkjh ds dqYgkM+h ls pksVsa igqapkbZ vkSj bl rjg vkius Hkk-na-la- dh /kkjk 324 ds vUrxZr n.Muh; vijk/k fd;k tks fd lsku U;k;ky; ds izlaKku esa gSA vkSj eSa ,rn~}kjk funsZk nsrk gwW fd vkidks mä U;k;ky; }kjk vkjksi ds fy;s ifjf{kr fd;k tkosA ,lMh- lsku tt- 14-2-77**

The Sessions Judge while convicting the accused u/s 302 I.P.C. sentenced him to life imprisonment and acquitted him of the offence u/s 324 I.P.C.

2. In this appeal, learned counsel for the appellant has not contested the commission of the offence by the appellant, but he has argued that the offence can fall at the most u/s 304(2) I.P.C. He, therefore, pressed the appeal to this limited extent that he prayed that the court need not go in details about the facts so far as the causing of death of the deceased is concerned, because apart from the prosecution evidence, Mangi Lal in his statement has admitted that he caused injurises by axe to Ladu although his plea is that this was done on account of provocation caused to him because accused was committing rape on his wife and did not desist from doing so inspite of repeated warning.

3. We have even then gone through the entire record of the case and perused the relevant evidence.

4. The prosecution allegation in short, is that on 15.12.76, deceased Mangi Lal was on his field for guarding the field. At that time accused Ladus wife entered the field and started picking up cow-dung. Mangi Lal asked him not to do so. On this Ladu accused, who was grazing cattle nearby felt annoyed and told Mangi Lal not to talk to his wife and saying so in anger gave a blow of axe on the head of Mangi Lal and another blow was given on his hand, when Mangi Lal tried to put on his hand to save his head. Hajari tried to intervene, but his finger was also injured. Mishri Lal came there from nearby and by that time Mangi Lal fell down. Mishri Lal tried to snatch the axe from Ladu, but Ladu threatened him. Mangi Lal died on the spot. Mishri Lal and Hajari then gave information of this incident to Mangi Lals brothers son Mana, who rushed to the Police Station, Srinagar and lodged the first information report at 3.30 which was registered by the S.H.O. and is Ex. P. 3 on the record. The resultant registration of the case and the commencement of the investigation ultimately resulted in the filing of challan against accused, who was then put to trial under Section 302 and 304 IPC as per the charge sheet extracted above. The prosecution in support of its case examined 10 witnesses and produced 17 articles.

5. According to Dr. Virendra, P.W. 1, deceased Mangi Lal received the following injuries:

"1. Incised injury on the right fore-arm on the lateral side with cutting of both bones completely.

2. Incised injury 1/2 x 1/4" x1/2" on the lateral side of the right thigh.

3. Lacerated injury \\" x 1" x \" on the lateral side of the left knee joint.

4. Incised wound in the frontal region 2-1/2" x1/2" x 1-1/2" with the cutting of bone and involvement of duramatter and brain substance.

5. Incised wound 4-1/2 "x2"x1-1/3" with cutting of the bone and involvement of the duramatter and brain substance from

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