Honble GARG, J.–This appeal has been filed by the accused appellant against the judgment and order dated 14.5.99 passed by the learned Additional Sessions Judge No.2, Bhilwara, in Sessions Case No. 38/97 (208/97) by which the learned Judge convicted the accused appellant for offence under Section 304(I) I.P.C. and sentenced to 7 years R.I. and a fine of Rs. 1000/-, in default to further undergo 6 months S.I.

(2). It arises in the following circumstances:

On 7.2.97, at about 2.30 p.m. P.W. 4 Mohan lodged a written report Ex.P/5 in the Police Station Raipur, Dist. Pali, before P.W. 9 Jai Singh, SHO of the police station, alleging that at about 12 noon, when he was in his house his nephew P.W. 5 Prema came and told him that Girdhari Kaka (hereinafter referred to as the Deceased) had been killed by the accused appellant in the well of P.W. 2 Hajari and he was going towards the field. He has further stated in the report Ex.P/5 that P.W. 5 Prema was informed about that incident by P.W. 2 Hajari and Jassa. When he was going towards the field, they further told him that he should inform the members of his family. Thereafter P.W. 4 Mohan reached the well where he found that the dead body of the deceased (deceased is brother of P.W.4 Mohan) was lying near the well and blood was coming from back side of his head. He also found P.W. 8 Nanu Ram sitting there and P.W. 8 Nanu Ram also told him that the accused appellant after killing the deceased had run away and he has further stated that P.W.2 Hajari, and Jeta asked him to sit there. P.W. 4 Mohan further had suspicion that mother of the accused appellant might be partly responsible in killing his brother.

(3). On this report, police chalked out regular FIR Ex.P/6 and started investigation.

(4). During investigation post mortem of the body of the deceased was got conducted by P.W. 7 Dr. Kishore Garg and the post mortem report is Ex.P/11 where the cause of death as assigned by P.W. 7 Dr. Kishore Garg was head injury and that injury was sufficient to cause death.

(5). During investigation, the accused appellant was got arrested through Fard Ex. P/13 by P.W. 9 Jai Singh on 8.2.97 and while he was in police custody, he gave information on 9.2.97 to P.W. 9 Jai Singh to the effect that he could get recovered that stone by which he killed the deceased and in consequence of that information, P.W. 9 Jai Singh recovered in presence of two motbirs P.W. 1 Asu Ram and Bhoja Ram, one stone stained with blood at the instance of the accused appellant from near the village where the murder took place of the deceased beneath the tree of Neem. That stone was seized by P.W. 9 Jai Singh through Ex.P/4 and sealed on the spot and marked ``A and it was sent to FSL through letter Ex.P/9 and the FSL report is Ex.P/17 where human blood was found on that stone.

(6). After usual investigation, police submitted challan against the accused appellant for offence under Section 302 I.P.C. in the Court of Magistrate stating that the accused appellant had murdered the deceased by throwing stone on the back of the head, from where the case was committed to the Court of Sessions Judge, Bhilwara who transferred it to Additional Sessions Judge No.2, Bhilwara.

(7). On 5.11.97 the learned Additional Sessions Judge framed charges for offence under Section 302 I.P.C. against the accused appellant who pleaded not guilty and claimed trial.

(8). During trial, 10 witnesses have been produced by the prosecution and thereafter statement of accused under Section 313 Cr.P.C. was recorded, and no evidence was led in defence.

(9). After conclusion of the trial, the learned Additional Sessions Judge No.2, Bhilwara convicted the accused appellant for offence under Section 304(I) I.P.C. in place of Section 302 I.P.C. and sentenced him as stated above inter alia holding that :

(i) No doubt in this case there is no eye witness, but from the statements of P.W. 2 Hajari and P.W. 3 Jai Ram, it is clear that at the place of occurrence, the deceased as well as a

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