J.B.PARDIWALA, J.

1. The present Appeal is at the instance of a convict-accused for the offence punishable under Section 302 of the Indian Penal Code and is directed against the order of conviction and sentence dated 30th July 2018 passed by the 5th Additional Sessions Judge, Anjar, District Kutch, in the Sessions Case No.87 of 2015 (Old Case No.54 of 2012).

2. By the aforesaid order, the learned Additional Sessions Judge found the appellant guilty of the offence punishable under Section 302 of the Indian Penal Code and consequently sentenced him to suffer life imprisonment with fine of Rs.5,000=00 and in default of payment of fine, to undergo further simple imprisonment for a period of six months. The trial court, however, acquitted the appellant of the offence punishable under Section 323 of the Indian Penal Code.

CASE OF THE PROSECUTION :

3. The deceased was married to the accused-appellant. According to the case of the prosecution, the marital life of the accused and the deceased was not happy. The accused was unhappy with the birth of the fourth child just couple of days before the date of the incident. The accused, along with his wife, i.e. the deceased, and the children were residing in a small hut put up in the agricultural farm. The accused also used to frequently pick up quarrels with the deceased. The accused also had a doubt as regards the fidelity of his wife and also with regard to the paternity of the fourth child. According to the case of the prosecution, on account of disturbed marital life, the accused is alleged to have committed murder of his wife inside their hut by inflicting injuries with a scythe ('dharia'). It is the case of the prosecution that the incident occurred at around 10:30 am. on 28th May 2012. It is also the case of the prosecution that at the time of the incident, the family members of the accused were present as they all were residing next to the hut of the accused and they all came to know that the accused had killed his wife. On the very same day, i.e. on 28th May 2012, the father of the accused herein, i.e. the PW13 Meghabhai Kumbhabhai Koli, lodged the FIR at 21:40 hours at the Bhimasar Police Station, Camp Rapar CHC Hospital, Rapar. Although the PW13 as the first informant turned hostile, yet having admitted his thumb impression on the FIR, the same was admitted in the evidence at Exh.36. The FIR (Exh.36) lodged by the PW13 is reproduced herein below :

“Date : 28/05/12

My name is Meghabhai Kumbhabhai Koli (Raghani), Aged - 55 yrs, occupation - farming, residing at - Bhutakiya Manasanga Vadi Area, Rapar, District Kutch, Mobile No.9978002342.

On being personally asked, I state the facts of my complaint that I live at the above mentioned address along with my family and I am doing farming on my own land. I have seven daughters and two sons. Among them Babiben is the eldest one and her marital home is at Kanmer village. Bharat is younger than Babiben and has been married to Kesarben D/o Karshan Gowa Koli of Santalpur Village 12 years ago as per social customs. He has four sons out of the said wedlock. The youngest one is seven days old. Sitaben and Soniben are younger to Bharat and they both have been married with the brothers-in-law of Bharat. Shantiben, Daliben, Bhanuben are younger to them. The youngest is Ramesh. All these four are unmarried and we all live together in a joint family.

Three sons of Bharat were born earlier and the fourth son was born seven days ago. Since then, my son Bharat did not use to talk with his wife in proper manner. After the birth of the fourth son, he seemed to be in worry and he also used to pick up quarrel with his wife Kesar. As there was a ritual of 'Chhaththi' yesterday, the mother-in-law of Bharat, namely Galalben, Kesarben's aunt, whose name is not known, and my daughter Babiben Bhagu Koli, residing at Kanmer, etc. had come. In the morning, th