JUDGMENT

Hanchate Sanjeevkumar, J. - The present appeal is preferred calling in question the judgment of conviction and order on sentence dated 26.12.2012 passed in Sessions Case No146/2011 by the I-Addl. Sessions Judge, Bijapur.

2. The brief facts of the case are as under:

Accused No.1 having suspected that the complainant/PW.1 has an illicit relation with her husband and thereby got enraged against the complainant and with common intention along with accused No.2 who is brother-in-law of accused No.1 to commit murder of the complainant/PW.1 on 29.06.2010 at about morning 6:00 a.m. both accused Nos.1 and 2 came on the roof of the maternal aunt's house of the complainant and assaulted her with chopper on the head of the complainant/PW.1 and abused in filthy language and thus caused grievous injuries on the head of the complainant and if accused No.1 would have succeeded in her attempt then the complainant would have been done to death and for this accused No.2 had instigated accused No.1. Therefore, with these averments PW.1 had lodged first information statement (FIS) before the police and accordingly the police have registered FIR for the offences punishable under Sections 307, 109, 504 and 506 read with Section 34 of IPC.

3. After registration of the crime, PW.12 had started investigation and filed charge sheet for the offences punishable under Sections 109, 307, 504, 506 read with Section 34 of IPC.

4. After receipt of charge sheet the jurisdictional Court since found that one of the offence alleged is exclusively triable by the Sessions Court. Thus, committed the case to the Sessions Court and the Sessions Court after receipt of the case proceeded with the trial. The Sessions Court had framed charges against accused Nos.1 and 2 for the offences punishable under Sections 307, 504, 506 and 109 read with Section 34 of IPC.

5. Upon reading and explaining the charges to the accused Nos.1 and 2 they have pleaded not guilty and claims to be tried and accordingly by recording their pleas the Sessions Court has proceeded with the trial.

6. After completion of prosecution side evidence the accused were subjected to examination under Section 313 of Code of Criminal Procedure and the accused have simply denied the incriminating evidence and denied the prosecution case. The accused have not submitted any written statement and did not choose to lead defence evidence. Thus, it is totally denial of the case of the prosecution by the accused.

7. The prosecution has examined totally 12 witnesses as PWs.1 to 12 and got marked documents as Exs.P1 to P16 and got marked material objects as M.Os.1 to 5.

8. The Sessions Court after considering and analyzing the entire evidence on record formed an opinion that the prosecution is able to prove the guilt against accused No.1 for the offence punishable under Section 326 of IPC instead of the offence under Section 307 of IPC. Further the Sessions Court had acquitted both accused nos.1 and 2 for the offences punishable under Sections 504, 506 and 307 read with Section 109 of IPC. Therefore, the Sessions Court had recorded conviction of the accused No.1 alone for the offence punishable under Section 326 of IPC by forming an opinion that the prosecution has failed to prove the guilt under Section 307 of IPC. Thus, the Sessions Court has convicted for the offence under Section 326 of IPC had passed the sentence against accused no.1 to undergo simple imprisonment for a period of three years with fine of Rs.5,000/- and with default clause to undergo simple imprisonment for a period of six months if failure to payment of fine amount. The Sessions Court had acquitted the accused no.2 for all the charges leveled against him.

9. Being aggrieved by the judgment of conviction and order on sentence passed the accused no.1 had preferred the present appeal on various grounds inter alia as stated below ;-

? The prosecution has not proved beyond reasonable doubt that the accused/appellant had committed offence under S