FACTS : Karamshi Vasaram had four sons Arjan, Nathu, Laxman and Teram, who were living separate from each other. However, Karamshi Vasaram with his wife was living with his son Nathu. Since last 4 or 5 years before the day of the incident which took place on 7-7-1963 at the village Kanatalav, Karamshi and one Bai Uji a widow had developed illicit intimacy to the extent that the fact had become the talk of the village. About 8 or 9 months before the incident Bai Uji had left Kanatalav and had one to stay at the village Nit all where she used to work in the fields. About 3 or 4 months before the incident Karamshi also had left the village and went to live in Jesar where he had started a shop with one other person. They used to visit each other, and sometime after both of them entered into a marriage styled as "Ghargharna marriage" with the result that Bai Uji left Nitali and began to live with Karamshi at Jesar. Three or four days before 7-7-1963 when the incident took place Karamshi had come to Kanatalav.

At about 12 noon the appellant, a son of Bai Uji, and accused No. 2 armed with axes, are said to have given some blows as a result of which Karamshi fell down bleeding from the injuries on his head, etc.. just at the corner of the house of one Vallabh Premji. Both the accused then ran away from that place Teram, who was sitting on a chabutra nearby heard a shout "run save" and saw the accused running away. He then went near his father and in the meantime his brother Laxman had come there from the side of their house. On Laxman inquiring of him as to who had beaten their father, he named those persons and told him about their having run away. Thereupon Laxman asked Jeram to wait there by the side of their father and he went to the place of the Sarpanch Laxman told the Sarpanch Jayantilal about his father lying in bloodshed and asked him as to what he should do. He advised him to take him home and give him some treatment. While he was at the house (Bethak) of the Sarpanch, he had seen Vaehji, the accused No. 1, entering that place and sitting by the side of the Sarpanch. He says found to have a Parsikuhadi stained with blood. Laxman thereupon returned back and finding his father serious he came to be taken to the home of Nathu. Within a short lima Nathu had also come. Then Laxman Ex. 6 and Nathu Ex. 4 went to give information about the incident to the Sarpanch. Both of them then informed the Sarpanch about the death of their father and requested him to give a report.

A report was lodged at the police station at Kundla. In the investigation by the police the person of Vaghji accused No. 1 was examined and was found to have one injury on his hand, and since some stains of blood were noticed on the Paheran and Chorni, articles 4 and 5 respectively, they came to be attached. After completing the investigation of the case, the charge-sheet against both the accused was sent to the Court of the Judicial Magistrate, 1st Class, at Bhavnagar, on 22-7-1963 who after making the necessary inquiry committed both of them to stand their trial in the Court of Session at Bhavnagar for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The charge against both the accused was common, and it was that in furtherance of their common intention on or about 7th day of July 1963 in village Kanatalav in Kundla Taluka, they had committed murder by intentionally causing the death of Karamshi Vasaram so as to be liable under Section 302 read with Section 34 of the Indian Penal Code. No alternative charge was Framed against any of them. Both the accused pleaded not guilty to the same.

On a consideration of the evidence adduced in the case, the Sessions Judge found that it was accused No. 1 who had committed the murder of Karamshi in the noon of 7-7-1963.

Against that part of the order the accused No. 1 appellant preferred an appeal. The Sessions Judge did not find the evidence sufficient to hold the accused No. 2 guilty