JUDGMENT

Brijesh Kumar, J.-This appeal has been preferred by the appellant from Jail against the judgment and order dated 5th, 7th and 10th July, 2001 passed by the Gujarat High Court upholding his conviction under Section 302 I.P.C. and sentence of death as awarded by the Additional Sessions Judge Sabarkantha, at Himmatnagar. The reference for confirmation of the death sentence was also accepted.

2. We have heard the Amicus Curiae representing the appellant at length as well as the learned counsel representing the State.

3. The facts of the case are in a narrow campass. The appellant and PW-3 Ashaben, were married about 15 years before the incident. They had two sons, Jigarsinh and Vimalsinh aged about 12 and 7 years respectively. They were residing in Village Bhadresar along with the parents of the appellant. The brother of the appellant, namely Dashrathsinh was living separately. The prosecution case is that on 24.8.1998 while the appellant, the complainant PW-3 Ashaben and their two sons were sleeping on cots inside the house, the appellant woke her up early in the morning. She milched the cow and requested her husband to deliver the milk at the dairy. The appellant declined to