JUDGMENT

KULDIP SINGH, J. :— The appellant. Shivaji Patil was acquitted by the Additional Sessions Judge, Kolhapur of the charge under S. 302, Penal Code for committing murder of one Tulashiram Sutar, but on appeal the High Court by its judgment dated February 6, 1975 set aside the order of acquittal and convicted him under S. 302 of the Penal Code and sentenced him to imprisonment for life.

2. The house of deceased Tulashiram in Village Rashivade adjoins the temple of Shri Ambabai and in front of the temple, there is open place. The deceased along with his wife Parvatibai two children and parents was living in the house. Cousin brothers of the deceased and their mother were living in the adjoining house.

3. Vyanku Sutar belonging to hood the brother of deceased was also living in the same village. The deceased had illicit relation with Vyankus wife Akkatai. Parvatibai claimed to have caught them in the sex-act in sugarcane fields. The accused Shivaji and Vyanku were friends.

4. On January 30, 1972 at about7 or 7-30 P.M. Tulashiram returned to the house after performing his role described as "Sasankathi" in the festival of "Mahi Poornima". In the house Parvatibai, her mother-in-law Tanubai, her husbands sister Malutai, and her husbands cousin brothers wife Shalubai, were present. The male members, namely, deceaseds father Pandurang Sutar, his brother Soundappa and servant named Shama had gone to another village called Kote. Tulashiram asked his mother Tanubai to prepare tea and thereafter he went out and sat on the foot-steps of the temple at a distance of about 15 to 20 feet from the house.

5. What followed can best be reproduced in words of Parvatibai as P.W. 3 at the trial :

"After the tea was ready, I started going out of the house to call for my husband, when I went to the front door of my house, I saw the accused Shivaji hitting my husband with a stick on his head and running away. I saw him running in the direction of the by-lane. I saw my husband falling down from the steps and lying on the ground near the "Deepmal". I saw him rubbing his feet on the ground in agony and blood was coming from the injury on his head. I could see this in the light of the tube-light. I went near my husband and started calling him. He could not speak. Hence, I raised a hue and cry and my mother-in-law and sister-in-law Malubai and Shalubai and Vishnu Patil came there. I did not see anybody else nearby then as I was busy attending to my husband.

My husband had become unconscious due to the head injuries and froth had come out of his mouth. Myself, Vishnu Patil and sister-in-law bodily lifted my husband and took him to the house......... Somebody went and brought a doctor named Jayant Patil. The doctor came there, examined and treated my husband and advised him to be removed to his dispensary. My husband was accordingly taken there, but I did not go. as my small children were crying and I was prevented from going there. My children were frightened. In the morning next day, I came to know that my husband was removed to C.P.R. Hospital at Kolhapur. Hence in the morning. myself my mother-in-law and others went to Kolhapur by Yelavade-Kolhapur Bus reaching there at about 8.30 A.M. When we reached the C.P.R. Hospital my brother-in law came there crying saying that my husband had overnight succumbed to his injuries. Hence myself and my mother-in-law started crying and shouting. Hence some villagers brought a taxi, we were asked to sit in the taxi and we were taken to Kashivade even without showing the dead-body to us. We reached Kashivade at about 11 A.M. After reaching home, we were crying in agony and our house became full with females and I did not notice who others had come there."

6. Vishnu Patil deposed that he was returning from his sugarcane crushing site and while passing by the temple he found deceased Tulashiram lying injured in front of the steps of the temple and his wife was crying nearby. At a distance of about 5 or 6 feet from there, he s