JUDGMENT :

J.R. Vora, J.

Both the above matters have arisen from the same Judgment and Order delivered by Additional Sessions Judge, Fast Track Court No.3, Bharuch, on 15.12.2007, in Sessions Case No. 82 of 2007. Appellant of Criminal Appeal No. 37 of 2008 Hiteshkumar Madhusudan Adhvaryu was charged for the offences punishable under Sections 302, 307 and 309 of the Indian Penal Code and vide the impugned judgment and order, the accused was found guilty for the offences punishable under Sections 302, 307 and 309 of the Indian Penal Code. The learned Trial Judge awarded death penalty to the accused for the offences punishable under Section 302 of the Indian Penal Code while he was sentenced to undergo 10 years rigorous imprisonment and to pay fine of Rs. 500/-, in default, to undergo rigorous imprisonment of six months for the offence punishable under Section 307 of the Indian Penal Code. No separate sentence was awarded for the offence punishable under Section 309 of the Indian Penal Code.

2. The learned Trial Judge referred the said Sessions Case to this Court for the confirmation of death sentence in accordance with the provisions of Section 366 of the Criminal Procedure Code and has been registered as Criminal Confirmation Case No.1 of 2008.

3. Criminal Appeal No. 37 of 2008 is preferred under Section 374 of the Criminal Procedure Code by accused against his conviction recorded by the learned Trial Judge for the offences punishable under Sections 302, 307 and 309 of the Indian Penal Code, as afore stated.

4. The facts leading to the death penalty to the accused reveals that the accused Hiteshkumar Madhusudan Adhvaryu along with his wife Geetaben, son Pujan, aged 3 years and daughter Ishwa, aged 11 years, were staying at Kailashnagar Society, Ankleshwar. The accused Hiteshkumar was serving in a medical store situated in Nityanand Hospital at Anklewshwar and deceased Geetaben wife of the accused was doing tuition for earning. The incident in question occurred at night of 13th of April, 2007. It appears that the family was passing through financial crunch and was staying in a small house at Ankleshwar. On 13th of April, 2007, while the family was taking their dinner, deceased Geetaben mentioned to the accused that their son Pujan had some skin problems and, therefore she had taken Pujan to Nityanand Hospital where in the medical store the accused was in employment. Geetaben mentioned to the accused that she inquired from the Doctor of Nityanand Hospital and came to know that accused was not going to his job for about 2/3 months. Wife Geetaben, therefore, inquired from the accused while the accused was not going to his job for last two/three months, then from where the accused was bringing money in the form of salary. According to the prosecution case, though the accused was not attending his job, he used to go out on regular hours in the morning and was returning to home in late evening. On inquiring by wife Geetaben, the accused was enraged and took out a currency note of Rs. 500/- from his pocket and thrown the same on the face of Geetaben saying that why Geetaben was talking about money all the times and further said that she should eat 500 rupees note. Geetaben kept quite and accused sat to watch TV. As a routine thereafter Geetaben prepared beds for the family and Ishwa, Pujan and Geetaben all went to sleep. The accused was angry and Geetaben was weeping at that time also. During night hours, Ishwa, though she was in deep sleep, heard some notice, therefore, awakened. She found that the accused was kicking her mother Geetaben and, therefore, Ishwa raised shouts. On hearing shouts, neighbours gathered there and inquired from the accused that why the accused was unnecessarily beating his wife and children. Accused thereupon abused the neighbours and stated them to go away as it was their personal matter. Neighbours thereafter