S.H.VORA, J. - (1.)THIS appeal is preferred by the appellant (original accused) under Section 374 of the Code of Criminal Procedure, 1973 (for short, 'the Code') calls in question the judgment of conviction and order of sentence dated 12th May 1993 passed by the Additional Sessions Judge, Ahmedabad Rural at Mirzapur in Sessions Case No.138 of 1992 whereby the learned Additional Sessions Judge found that the appellant herein is guilty of offence punishable under Section 302 of IPC and sentenced the appellant to suffer RI for life.
(2.)THE facts leading to the trial are that on 31st May 1992 at about 4 PM in the evening, the Sarpanch of village Godhavi, namely, Shri Bhimjibhai Hemantsinh - PW No.2 came to know that a dead body of one lady is lying in garnala between village Godhavi- Manipur and so he gave a complaint at Sanand Police Station vide I. C.R.No.132 of 1992 and after registering the offence. During the course of investigation, the Investigating Officer prepared inquest panchnama at Exhibit 22 and the panchnama of the scene of offence Exhibit 23. The Investigating Officer prepared recovery panchnama of the clothes of the deceased as per panchnama at Exhibit 25. The Investigating Agency recovered certain muddamal at the scene of offence and saree worn by the deceased and collected viscera with the help of FSL and stains of human blood and semen, obtained the report of Serological Analyst at Exhibit 32 and Chemical Analysis at Exhibit 33. The Investigating Agency carried out discovery panchnama of the muddamal article (Exhibit 36) which is discovered at the instance of accused, namely, underwear wore by the appellant-accused at the time of commission of the crime, obtained injury certificate caused to the accused, recorded statements of witnesses and lastly arrested the appellant-accused on 7/6/1992 at 11 AM. During the course of investigation, the Investigating Officer has also recovered certain letters from the house of PW No.6 ­ Jaswantsinh Fatehsinh, alleged to have been written by the appellant-accused vide Exhibit 16 and 17. Based on the evidence so gathered, it is the case of the prosecution that the appellant-accused was demanding money of Rs.15,000 from PW No.6 ­ Jaswantsinh Fatehsinh, father of the deceased and was also suspicing about the character of deceased Premilaben and therefore the appellant-accused, after committing the rape on the deceased stragulated by saree wore by the deceased Premilaben and thus committed murder of the deceased. After collecting and forming opinion that the appellant ­ accused has committed offence punishable under Section 302, the Investigating Officer filed the charge-sheet in the court of the learned Judicial Magistrate First Class, Sanand. Since the said Court lacks the jurisdiction to try the offence punishable under Section 302 of IPC, committed the case to the Sessions Court, Ahmedabad Rural under Section 209 of the Code and accordingly the Sessions Court registered the said case as Sessions Case No.138 of 1992.
The Sessions Court framed the charge at Exhibit 4, which reads as under:-

"I, Mrs L.R. Abichandani, Additional Sessions Judge, Ahmedabad (Rural) hold you ­ the accused that you had demanded money from the father of your wife through your wife under the pretext of purchasing rickshaw and you also harboured doubt regarding character of your wife. On account of this, on 31-5-1992, during night hours, you have taken her to a deserted place on the outskirts of village Godhavi and during the course of sexual intercourse strangulated her by tightening a noose made of the saree worn by her and thereby killed her. Thus, you committed the offence of culpable homicide. By doing so, you have committed the offence as per Section 302 of IPC. Hence, I do hereby order that this Court shall conduct trial against you for the aforesaid offences."

(3.)THE appellant accused pleaded not guilty and claimed the trial.