( 1 ) DELIVERING the judgment and order dated 20/11/1987, in Sessions Case No. 147 of 1986 on his file, the then learned Additional sessions Judge at Surat, convicted the appellant of the offence under Sec. 302, Indian penal Code, and sentenced him to life imprisonment, consequent upon which the present appeal has been preferred.

( 2 ) IN short, it is the case of the prosecution that Ramdas Fojabhai, the deceased, was the brother-in-law (Banevi) of the appellant. The deceased was said to have illicit relations with the appellants wife. As the appellant was under the impression that his wife and the deceased had carnal relations, he was afflicted and chagrined. He had hence developed and ill-bred retaliatory whims. He was, therefore, hovering as he wanted to get rid of such plaguy unchaste affairs. On 16/06/1986 at 8- 30 p. m. at Mubarakpur when the deceased was going to tether his goat in the house of Emlo, the appellant armed with an axe, ran amok on the deceased, and by axeblows he caused fatal injuries to the deceased to which he succumbed on the spot. The appellant on being advised by the police patel went to the police station and lodged the complaint. The police officer of Nizar police station took the investigation on hand. At the conclusion of investigation, he filed the charge-sheet against the appellant in the Court of the Judicial Magistrate (First Class) at Nizar for the offence under Sec. 302, I. P. C. As the learned Magistrate was not competent to hear and decide the case he committed the same to the Court of Session at Surat, which came to be numbered as Sessions Case No. 147 of 1986. The then learned Sessions Judge at Surat assigned the case to the then learned Additional Sessions Judge, Surat for hearing and disposal in accordnance with law. The charge against the appellant was framed at Exh. 2. When it was explained, the appellant pleaded not guilty and claimed to be tried. The prosecution then led necessary evidence. Considering the evidence on record and the rival submissions, the then learned Additional Sessions judge at Surat held the appellant guilty and sentenced him as aforesaid. It is against that order of conviction and sentence, the present appeal is before us.

( 3 ) MR. P. M. Vyas, learned Advocate representing the appellant, submitted that the lower Court fell into error in appreciating the evidence and convicting and sentencing the appellant. Though all the witnesses could not see the incident, the learned Judge misread the evidence and drew himself to a wrong direction. He also misconstrued the evidence of Bajirao recorded at Exh. 16 and adopting a prejudicial approach, he reached the conclusions not at all in consonance with law. Mr. Mehta, the learned Additional Public Prosecutor, made a lame attempt before us so as to convince that the learned Judge was right in all respects while appreciating the evidence, reaching the conclusion, and holding the appellant guilty.

( 4 ) A perusal of the evidence implants in our minds clearly that the learned judge has committed errors both of law and fact, accusations made are not at all free from doubts, and the charge against the appellant is not established beyond every reasonable doubt. Sustaben Ramdas is the widow of the deceased. She has been examined at Exh. 13. Ranjuben Ramdas is the daughter of the deceased whose evidence is recorded at Exh. 14. Sanjay, the son of the deceased, figured at Exh. 15. All the three witnesses who are alleged to have seen the incident have made the statements supporting the case of the prosecution. Their evidence, however, cannot be accepted. In the later part of their deposition what is made clear is that sustaben was cooking in the house, Ranjuben was helping her while Sanjay was beside both the mother and the sister in the kitchen. Hearing the shouts they all went out, and could see the deceased lying on the ground in bleeding condition. Before they went out of their house hearing the shouts, the appell