1. The appellant herein has challenged the judgment of conviction and order of sentence dated 29.11.2010 in S.C. No.106/2009 passed by I Addl. Sessions Judge, D.K., Mangaluru (hence forth for brevity referred to as the ‘Sessions Court’) for the offence punishable under Sections 302 and 324 of the Indian Penal Code.

2. In his memorandum of appeal the appellant has taken contention that all the prosecution witnesses speaking regarding the occurrence have turned hostile to the prosecution, as such, there was no material to convict him for the offence alleged against him. He was just wanted to take back his hand loan which he had given to the deceased and at the refusal of the deceased a quarrel started and he has bet the deceased, the deceased had consumed alcohol which aspect the court below has not properly appreciated. Further pleading that he is young and aged only about 30 years having old aged parents and small children, has prayed for setting aside the judgment of conviction and sentence and to acquit him of the alleged charges.

3. In response to the notice the respondent is being represented by the prosecution.

4. Lower court records was called for and the same are placed before us.

5. Heard arguments from both sides. Perused the material placed before us.

6. The summary of the case of the prosecution is that the complainant one Smt. Rathnamma, w/o Ramaiah a resident of Konchady, Kadri village, Mangaluru lodged a complaint as per EX.P1 on 26.06.2009 before the complainant police. The summary of the said complaint was that she along with her husband (who is the deceased in this case) was residing in their house at Kadri village. They had two daughters by name Shobha married to one Sri Nagaraj and the second daughter by name Shashikala and was married to the present appellant-Ramesh. Said Shashikala and the accused were residing in Jyothinagar in a rented house. On 25.06.2009 Shashikala along with her husband/accused had come to their (complainant’s) house in the evening at which time the accused demanded the repayment of a sum of Rs.300/- which is stated to have been lent by him to her husband (deceased) two days before. The deceased pleaded his inability to repay the said amount then and there itself, but prayed for some time to repay the same. The accused warned the deceased that he would kill him if he does not repay the loan amount. The deceased was working as a watchman. On the same night at 11.30 p.m. while the deceased was sleeping in the varanda the complainant heard some voice of somebody abusing her husband. She came out and saw that her son-in-law/accused Ramesh was demanding the repayment of the money by her husband and was insisting him to pay of the said money then and there itself and was abusing him. In the said action the accused picked up an axe and while abusing the deceased assaulted him on his head. At that moment Shashikala (the wife of the accused and daughter of the deceased) also rushed to the rescue of the deceased and she was also assaulted by the accused. Even the accused assaulted complainant also with the axe. The complainant and her daughter Shashikala shifted the injured Ramaiah in an auto rickshaw to the Government Wenlock hospital and admitted for treatment. Thereafter she filed a complaint against the accused alleging of he attempting to kill her husband, which was registered in complaint station Crime No.142/2009 for the offence punishable under Section 504, 324 and 307 of the Indian Penal Code. On the next day i.e., on 26.06.2009 afternoon the deceased succumbed to the injures. Thereafter the offence of Section 307 of Indian Penal Code was converted into an offence under Section 302 of the Indian Penal code. After investigation the complainant police filed charge sheet against the accused for the offence punishable under Sections 324 and 302 of the Indian Penal Code. Charges were framed against the accused for the offence punishable under Sections 324, 302 of IPC. Since the accused