( 1 ) THE Appellant - accused Dharamshi @ Dhama Devabhai Koli and Samjuben Gordhanbhai Koli have challenged, in this Appeal, the impugned Judgment and order of conviction and sentence dated 25. 5. 1995, passed by the learned Addl. Sessions Judge, Rajkot, in Sessions Case No. 60 of 1992, whereby the learned Judge found both the accused guilty for the major offence u/s. 302 I. P. Code as well as u/s. 201 I. P. Code and sentenced both of them to suffer Life Imprisonment and to pay fine of Rs. 2000/- in default to further under-go one year R. I. for the offence u/s. 302 I. P. Code and R. I. for 3 years and to pay fine of Rs. 1000/- in default to further under-go R. I. for 6 months for the offence u/s. 201 I. P. Code.

( 2 ) IT is the prosecution case that Appellant accused No. 2 Samjuben was the widow of Mohanbhai. On the death of her husband Mohanbhai, she married with Gordhanbhai, aged about 17, younger brother of deceased Mohanbhai, as per their caste customs by way of "diyar Vatu". The Appellant - accused No. 1 Dharamshi @ Dhama, aged 30, was staying as their tenant in the house of accused No. 2 Samjuben. Gordhanbhai, 2nd husband of accused No. 2 Samjuben was of a tender age of 17, and the accused No. 1 Dharamshi @ Dhama was aged 30 and as a result of it intimacy was developed between both the accused and in the course of time it turns into love affairs and ultimately ended in illicit relation. This came to the notice of the relatives of Samjuben and her 2nd husband Gordhan, therefore, accused No. 1 was driven out from their house. Thus, both the accused No. 1 and 2 were separated. When they came to know that Gordhan had also come to know about their illicit relation and coming in their way, therefore, they decided to remove the obstacle in their way by committing murder of Gordhanbhai. They hatched out the plan and as per their plan, on the night of 14th and 15th April, 1992 at about 1. 00 Oclock in the mid-night when deceased Gordhanbhai was sleeping in the "osari" (Varanda), the accused No. 2 Samjuben sat on the legs of deceased Gordhan and pressed his mouth with the help of towel and accused No. 1 strangulated Gordhan with the help of plastic thread and because of strangulation, Gordhan died. After committing the murder of Gordhan, both the accused put the dead body of deceased Gordhan in a plastic bag and took it on a bicycle and threw it in river "aji". Thus, both the accused have committed offence u/s. 302 read with Section 34 I. P. Code and u/s. 201 I. P. Code.

( 3 ) THE incident in question of committing murder of deceased Gordhan by both the accused was witnessed by two child witnesses, viz. Shailesh Mohanbhai, aged 15, P. W. 4, Ex. 33 and Ranjanben Mohanbhai, aged 12, P. W. 8, Ex. 39, who are none-else but the real son and daughter respectively, of accused No. 2 Bai Samjuben. On 15. 4. 1992 Shailesh Mohanbhai, P. W. 4, went to Kalipath village and informed his grand-father Talshibhai Nathabhai (father of deceased Mohanbhai and Gordhanbhai), about the incident. Thereupon, Talshibhai Nathabhai, P. W. 6, Ex. 37, lodged F. I. R. on 16. 4. 1992, Ex. 65, before "b" Division Police Station of Rajkot City against both the accused for committing murder of his son Gordhanbhai. After recording his F. I. R. Police started investigation and after recording the statement of other witnesses, including both the child witnesses Shailesh, P. W. 4 and Ranjan, P. W. 8, Police filed charge-sheet against both the accused for the offence u/s. 302 read with Section 34 and Section 201 I. P. Code. Learned Magistrate committed the case to the Court of Sessions. The learned trial Judge framed Charge Ex. 1 dated 2. 1. 1993 against both the accused for the aforesaid offences. Both the accused pleaded not guilty to the charge and claimed to be tried. Thereupon, the prosecution examined several witnesses in support of its case and also led documentary evidence like Inquest Panchnama, Panchnama of scene of offence, P. M. Notes, etc