P.D. Kode, J.

1. The Confirmation Case No.1 of 2011 arise out of reference made under section 366 of the Code of Criminal Procedure (hereinafter referred as "Code" for the sake of brevity) by learned Additional Sessions Judge, Kolhapur for confirmation of sentence of death awarded to sole accused in Sessions Case No.141 of 2008 by the judgment and order dated 18th March, 2011. The said accused in his turn has preferred abovestated Criminal Appeal No. 481 of 2012 challenging the said judgment and order of his conviction and such a sentence imposed upon him.

2. By the said judgment and order learned Additional Sessions Judge has convicted sole accused at the said Sessions Trial for commission of offence:-

“(i) punishable under section 302 of Indian Penal Code and sentenced him to a death for committing murder of his wife Smt.Ashwini and further ordered him to pay a fine of Rs.200/- and in default to suffer R.I. for two months;

(ii) punishable under section 307 of Indian Penal Code for attempting to commit murder of his son - Kedar and sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Rs.1,000/- and in default to suffer R.I. for one month;

(iii) punishable under section 323 of Indian Penal Code for causing simple injury to his daughter -Shubhangi (P.W.9) and sentenced him to suffer R.I. for one month.

and ordered concurrent running of sentences awarded on second and third count.”

3. Such of the facts necessary for deciding present proceedings are as under:

Dilip Tibile (P.W.12) Police Head Constable while on station house duty at Old Rajwada police station on 6th August, 2008 at about 6 am upon receiving a telephonic call that murder was committed near statue of Raj Kapoor. After making entry in station diary he deputed API Vinod Satav (P.W.14) and other staff to said spot. P.W.14 reached the spot of incident behind statue of Rajkapoor in Shivaji Peth, 711, A ward, and found crowd gathered in front of a house of which door was closed from inside. On alarm given by him regarding arrival of the police, the appellant wearing banian and half pant with blood stains thereon opened the door. As the crowd was not in a mood to listen P.W.14 send the appellant to police station. P.W.14 also gave call to photographer ASI Bhaurao Patil P.W.11 for visiting the spot for taking the photograph. P.W.14 during the enquiry at the spot came across, one Mahadeo Shripati Mane (P.W.3) - maternal Uncle of victim Smt.Ashwini and resident of Shivaji Peth, Kolhapur.

"3.1. P.W.3 lodged complaint Exhibit-17 with PW-14 against the appellant for commission of murder of his niece Ashwini, attempting to cause murder of son of Ashwini -Kedar and causing hurt to Shubhangi (P.W.9) by narrating that his niece Ashwini had married appellant, about 12 years back and since then she was residing alongwith appellant, her mother-in-law Akkatai, daughter – Shubhangi of age 10 years, son - Kedar of age 2 1/2 years and Sonali (P.W.4) daughter of her deceased, sister-in-law. Ashwini used to visit house of (P.W.3) alongwith her children and he also used to visit her house. Ashwini on 2-3 occasions had disclosed him about the quarrels ensuing with the appellant. P.W.3 pacified the appellant on one or two occasions and so also parents of Ashwini had tried to pacify him. However, none of them lodged complaint with the police regarding said affairs in between husband and wife.

3.2 He further narrated that on the said day at about 6.25 am his brother - Balwant told him that P.W.9 and P.W.4 informing about quarrel ensued in between Ashwini and appellant have returned to the house of Shubhangi and P.W.3 should go to the said place to ascertain the happenings. P.W.3 went to the house of Ashwini and found that crowd has gathered outside the house and police were also present at the said place. P.W.3 went in the house and noticed that Ashwini was lying dead in pool of blood in bed, with a wooden log used for making Thandai, smeared wi