- (1.) THE appellant has been convicted under Section 302, I. P. C. and has been sentenced to undergo rigorous imprisonment for life by judg ment dated 17-5-1997 delivered by Ses sions Judge, Sonebhadra in S. T No. 63 of 1996.
(2.) THE prosecution case in brief is that deceased Sadhu and accused Bojh along with the wife of the accused belonged to Adiwasi community and were resident of Bihar. At the time of the incident both were residing within the jurisdiction of P. S. Shaktinagar District Sonebhadra, Uttar Pradesh. THE incident giving rise to this case has taken place on 15th April, 1996 at 2. 30 a. m. THE First Information Report has been lodged at 5-10 a. m. by Gulab Singh (P. W. 1) who has stated in the F. I. R. that there were illicit relations between Raymuni wife of accused Bojh and deceased Sadhu. In the night intervening 14th and 15th April, 1996 at about 2-30 a. m. accused Bojh saw his wife Raymuni in a compromising position with deceased Sadhu. He raised an alarm, hearing which Gulab Singh, Bishun, Mukhlal etc. reached there. When accused Bojh asked his wife Raymuni as to what is happening, she replied that Sadhu was trying to rape her Sadhu tried to run away, but he was caught by Smt. Raymuni and accused Bojh inflicted a knife blow on the chest of Sadhu who fell down and died shortly after. On the basis of this written report Chick F. I. R. was drawn up by constable Ram' Nath (P. W. 7 ). During the course of investigation the dead-body of Sadhu was examined by Dr. P. N. Singh who prepared the post-mortem report. Investigation has been done by A. P. Pandey (P. W. 5) and Prem Narayan Sub- Inspector (P. W. 8) and a knife was recovered at the instance of the accused. The recovery memo of knife was prepared and after completing the inves tigation a charge-sheet was filed which resulted in the conviction and sentence as stated above. This appeal has been filed from jail. We have heard Sri Vidya Kant Tewari, who has been appointed amicus curie and A. G. A. Sri Arvind Tripathi.
(3.) THE prosecution has examined two eye-witnesses in the case who are Gulab Singh (P. W. 1) and Joral (P. W. 2) who have fully supported the prosecution and their evidence is corroborated by the post- mor tem report, F. I. R. and recovery memo of knife. THEre can be no doubt about the fact that the death of Sadhu was caused by accused Bojh. Learned counsel for the accused has argued that conviction has wrongly been recorded under Section 302, I. P. C. and in fact it is a case under Section 304, I. P. C. We fully agree with this contention because it is mentioned in the F. I. R. itself that the accused saw his wife Raymuni in a compromising position with the deceased and, therefore, it is apparent that the knife blow was given by the accused under a grave and sudden provocation. But it is also true that the blow has been inflicted on a vital part of body with such force as to result in extensive internal injury resulting in almost instantaneous death. Therefore, we are satisfied that this is a fit case in which the conviction of the accused under Section 302, I. P. C. should be converted under Section 304, Part I, I. P. C.;