K.M. THAKER, J.

1. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 is directed against the judgment and order dated 5.11.2011 passed by the learned District and Sessions Judge, Narmada at Rajpipla in Sessions Case No. 26 of 2011.

2. By the said judgment and order dated 5.11.2011, which is challenged in present appeal, the learned trial Court has recorded conviction against present appellant for offence punishable under Section 304 (Part-I) of IPC and sentenced the appellant to undergo RI for 10 years and pay fine of Rs. 5,000/- and in default to undergo RI for 1 year. The appellant is acquitted from charge of offence punishable under Section 302 of the Code and instead he is convicted under Section 304 (Part-I) of IPC.

3. Briefly stated the case of the prosecution, as it emerged from the record, is that the deceased was married to the appellant. From the wedlock, the deceased gave birth to two children. According to the case of the prosecution, there were frequent matrimonial quarrels between the appellant and the deceased and during such matrimonial quarrels the appellant used to beat the deceased. So as to get out of such environment the deceased used to frequently go to her maternal house and stay there, however, after some time the appellant would go back to persuade and convince her to return to matrimonial house and assure her that he would not physically abuse and beat her. On such promise the deceased would return but the accused-appellant would continue the same treatment to his wife - the deceased. It appears that few days before 23.4.2011 again there was a quarrel between the accused-appellant. Few days before the date of incidence the victim i.e. the deceased had left her matrimonial house and she had returned (few days before the date of incidence) to her parental house. On 23.4.2011 at about 11.00 a.m. when the deceased was at her parents' house and her parents had gone to attend agricultural work at their field, the accused-appellant had gone to the deceased's parental house. The appellant asked the deceased to return with him to the matrimonial house, however, the deceased refused to go. The appellant insisted that the deceased should return with him to the matrimonial house, but the deceased did not agree. Then the appellant picked up a log of wood which was in the kitchen/room and inflicted blows on the head of the deceased which caused serious injuries to the deceased. The appellant then fled from the place of incident. One 14-year girl saw the incident and called her parents. The parents of the girl and some neighbours gathered near the place of incident and the deceased was rushed to Government Hospital at Rajpipla where initial treatment was given by the doctor who was on duty and then she was referred to S.S.G. Hospital at Vadodara. The deceased succumbed to her injuries. The complaint/FIR was lodged with Rajpipla Police Station which was registered as ICR No. 16 of 2011 for offence punishable under Section 302 of IPC.

4. Thereafter the investigation was carried out. After investigation charge-sheet was submitted before the learned Magistrate. The case being triable by the Sessions Court, the learned Magistrate committed the case to the Sessions Court, Narmada district. The case was registered as Sessions Case No. 26 of 2011.

5. The learned trial Court recorded the statement of the appellant. The learned trial Court framed charge below Exh. 5. The appellant pleaded not guilty and claimed to be tried. So as to drive home and establish the charge against the appellant, the prosecution examined 12 witnesses and placed on record and relied on 14 documents.

6. After the stage of evidence was concluded and after informing the appellant all incriminating evidence and material against him, the learned trial Court recorded further statement of the appellant under Section 313 of the Code of Criminal Procedure. The appellant was also asked whether he wanted to lead any oral evidence. The