GARG, J. - (1.) THIS appeal has been filed by the accused appellant against the judgment and order dated 25. 3. 2000 passed by the learned Sessions Judge, Sirohi, in Sessions Case No. 12/1998 by which the learned Sessions Judge while acquitting the accused Kukia for offence under Section 302/34 IPC convicted the accused appellant Soma for offence under Section 304 (II) IPC in place of Section 302/34 IPC and sentenced him to to 7 years' R. I. and a fine of Rs. 500/-, in default of payment of fine to further undergo 3 months' R. I.
(2.) IT arises in the following circumstances: (i) On 10. 12. 1997 P. W. 9 Soma S/o Devaji lodged a written report Ex. P/16 with the Police Station Anadara, Distt. Sirohi alleging hat on the same day at about 9 to 10'o clock, he was informed by his daughter P. W. 1 Keli and daughter's daughter P. W. 7 Sharmi that the accused appellant and another accused Kukia had murdered his daughter Sawali (hereinafter referred to as the deceased) by inflicting injuries by axe etc. On this report, police chalked out regular FIR Ex. P/28 and started investigation. During investigation post mortem of the body of the deceased was got conducted by P. W. 13 Dr. Surendra Jain and the post-mortem report is Ex. P/24. After usual investigation, police submitted challan against the accused appellant and one Kukia for offence under Section 302 IPC in the Court of Magistrate from where the case was committed to the Court of Sessions Judge, Sirohi. On 4. 5. 98 the learned Sessions Judge framed charges for offence under Section 302/34 IPC against the accused appellant and one Kukia who pleaded not guilty and claimed trial.
(3.) DURING trial, 17 witnesses have been produced by the prosecution and thereafter statements of accused under Section 313 Cr. P. C. were recorded, and 4 witnesses were examined in defence. After conclusion of the trial, the learned Sessions Judge, Sirohi convicted the accused appellant for offence under Section 304 (II) I. P. C. in place of Section 302/34 I. P. C. and sentenced him as stated above inter alia holding that: The act of the accused appellant is covered by Exception I of Section 309 IPC, as when the accused appellant inflicted injuries on the body of the deceased, he was deprived of power of self-control under grave and sudden provocation and, thereafter, a case under Section 304 (II) is found to be proved against the accused appellant. Aggrieved from the said judgment and order, this appeal has been filed by the accused appellant. ;