S.S.BYAS,J. - (1.)BY the judgment dated September 20,1977 the learned Sessions Judge, Jodhpur convicted the accused Hamira Ram under Section 304 Part I, IPC and sentenced him to rigorous imprisonment for 5 -1/2 years. The accused has come up in appeal to challenge his conviction and sentence.
(2.)BRIEFLY stated, the prosecution case is that accused Hamiraram used to live with his mother Mst. Madu (aged about 50 years) in a Dhani which he had raised in his field situate in Mauja Bhanukalan P.S. Dechu. Mst. Madu became widow nearly 15 years before the occurence took place. The deceased Pepararo Kumbhar aged about 50 years at the relevant time also used to live with his sons in a Dhani which he had raised in his field situate nearly at a distance of one mile from the Dhani of the accused. It is suggested that Peparam developed illicit relations with Mst. Midu Peparam used to visit the Dhani of accused now and then. In the night between 17th and 18th February, 1977, Peparam went secretly to the Dhani of accused but was noticed by the latter. He struck some blows to Peparam with a Lathi. Peparam fell down. There was profuse bleeding from his wounds and he passed away instantaneously on the spot. The deceased's son Lalaram (aged about 16 years) was living with his uncle Gajjaram in village Bhadukalan, where he used to attend a school. At about 6.00 AM on February 18,1977 the accused went to Lalaram and told him that he had killed his (Lalaram's) father by striking the blows with a Lathi to him and that his dead body was lying at his Dhani. Lalaram went to his elder brother Gunaram (PW. 6) and apprised him of the matter. Gunaram took his uncle Dewaram, brother Lalaram and one Malasingh with him and went to the Dhani of the accused. The accused was found there. They asked the accused as to why he had killed Peparam. The accused told them that as Peparam had come to his house in the night, he had killed him. Gunaram (PW. 6) immediately left for Police Station, Shergarh and verbally lodged report Ex. P.7 of the occurrence at about 5.00 PM on the same day. Since the Station House Officer was out of the Headquarters, the case was registered on February 19,1977 on his arrival. The Investigating Officer Vishansingh (PW. 10) who was posted at Police Station, Shergarh sent report Ex. P.7 to the Police Station, Dechu as the offence was committed in the jurisdiction of that Police Station. Thereafter he and the Deputy Superintendent of Police along with a doctor arrived at the spot. The Investigation was taken gup. The autopsy of the victim's dead body was conducted at about 12.30 hours on February 20, 1977 by PW. 13 Dr. Sohansingh, the then Medical Officer Incharge, Primary Health Centre, Balesar. The doctor noticed the following injuries on the victim's dead body:
External: (1) Bruise with abrasion 3 x 1 cm on the right shoulder (2) Bruise 5 -1/2 cm x 1 -1/2 cm just below the right ear (3) Bruise with abrasions 2 cm x 1/2 cm left side of the neck (4) Bruise lx 72 cm behind the left ear (5) Bruise 3 cm x 2 cm on the left eye (6) Bruise with abrasions 9 cm x 2 cm on the central part of the fore -head (7) Lacerated wound with depressed fracture of the occipital boue on the back of the head 5 -1/2 cm x 1 -1/2 cm x 3 cm. Internal: A commuted depressed fracture of the occipital bone. The bone had been broken in eight pieces of different size and shape There pieces had gone deep inside the brain matter injuring the membrains and brain matter with the formation of a large haemotone at the site and oozing of the blood in the cranium and brain tissue. A 5 x 2 x 2 cm deep lacerations of the brain matter of the occipital bone of the brain was found. This internal injury was the result of external injury No. 7.

In the opinion of Dr. Sohansingh, the cause of death was injury to the occipital region of the head which caused intensive lacerations of the brain tissues of the occipital lobe and thereby leading to haemorrhage, shock coma and death. The post mortem examination report issued by him is Ex p.13. The Investigating Officer prepared the inquest report of the dead body and seized and sealed the blood -stained soil from the place of occurrence. He also prepered the site plan. The bloodstained clothes of the victim were also seized and sealed. The accused was arrested on February 19,1977 and in consequence of the information furnished by him, a Lathi was recovered lying concealed in the fences of his Dhani, There were blood -stains on this Lothi. It was seized and sealed. The recovered articles were sent for chemical examination. Human blood was found on the clothes of the accused and the Lathi recovered at the instance of the accused. On the completion of investigation, the police submitted a challan against the accused in the Court of Munsif and Judicial Magistrate, Jodhpur District, Jodhpur, who in his turn committed the case for trial to the Court of Sessions The learned Sessions Judge framed a charge under Section 302 I.P.C. against the accused, to which be pleaded not guilty and faced the trial. In support of its case, the prosecution examined 14 witnesses and filed some documents. In defence, the accused examined one witness. In his statement recorded under Section 313, Cr. PC, the accused claimed absolute innocence and alleged that he had been falsely implicated. His mother Mst. Madu had no illicit relations with the deceased. On the conclusion of trial the learned Sessions Jndge found the prosecution case substantially true. He held that Peparem was done to death by the accused. He was, however, of the opinion that it was under grave and sudden provocation that the accused caused the death of the deceased. The accused was consequently convicted and sentenced as mentioned at the very out set.

(3.)I have heard the learned Counsel for the accused and the learned Public Prostcutor. I have also gone through the case file carefully.