MR. JUSTICE A.L.DAVE, J.

(1) The appellant - Chandrakant Fatumal Luhana came to be tried by the Sessions Court, Kheda at Anand alongwith his mother - Sitaben Fatumal Luhana for the offences punishable under Section 498-A read with Section 114 of the Indian Penal Code and Section 302 of the Indian Penal Code in Sessions Case No.170 of 2003. The appellant came to be convicted for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo Imprisonment for Life with fine of Rs.20,000/-, in default, to undergo Rigorous Imprisonment for three years. However, the Trial Court acquitted him as well as co-accused Sitaben of the charges for offences punishable under Section 498-A read with Section 114 of the Indian Penal Code. The appellant has, therefore, preferred this appeal against conviction. Against acquittal of co-accused as well as the present accused for offences punishable under Section 498-A read with Section 114 of the Indian Penal Code, there is no appeal preferred by the State.

(2) The brief facts of the case are that the appellant was married to Lilaben, daughter of Sumitraben Thavardas on 25th May, 1995. From the wedlock, deceased Lilaben had delivered a daughter Bharti, aged about 4 at the time of the incident. They were staying at Guru Nanak Society around 23rd March, 2003. As per the prosecution case, the incident occurred at about 19:30 hours in the house occupied by the appellant and his family in Guru Nanak Society. It was charged that the appellant inflicted multiple blows on the head of his wife - deceased Lilaben with the help of wooden 'Paatli' resulting into her death.

2.1 The prosecution case depends on circumstantial evidence and there is no direct evidence. The first person who noticed the deceased having suffered injuries is witness Nandu staying in the house opposite to the house of the appellant who, upon hearing the hubbub, came out of the house, noticed the deceased lying at the bottom of the staircase leading to her house on the first floor. She was bleeding from the injury on her head. This witness took her upstairs to her house, initially put her on the ground and then on the cot in the room. He then called the brother of the accused who was in the vicinity, brought a rickshaw and the deceased was then taken to the hospital. Around the time when the rickshaw started, the appellant came to the place and boarded the rickshaw. On being taken to hospital, the deceased was declared dead. The mother of the victim - Sumitraben was informed. She came and lodged an F.I.R. with the police, on the basis of which an offence was registered and investigation started. The investigating agency, having found sufficient material, filed chargesheet in the Court of Judicial Magistrate First Class, Anand who, in turn, committed the case to the Court of Sessions and Sessions Case No.170 of 2003 came to be registered.

2.2 Charge was framed against both the accused persons at Exh.2 to which they pleaded not guilty and came to be tried.

2.3 The Trial Court, considering the evidence led by the prosecution, came to the conclusion that the charges against accused no.2 - Sitaben Fatumal Luhana were not proved and, therefore, recorded her acquittal. The Trial Court, however, found that there was evidence against accused no.1 of having committed murder of his wife and, therefore, convicted him for the said offence and sentenced him, as stated in the earlier part of this judgment.

Learned advocate Mr. Barot appearing for the appellant submitted that the important link in the form of evidence to show presence of the appellant at the place of incident when the incident occurred is missing. The prosecution has not been able to prove beyond reasonable doubt the factum of the presence of the appellant at the place of the incident. He also submitted that the evidence of the prosecution is inconsistent and the Trial Court has recorded conviction on hypothesis which does not prove involvement of the appe