JUDGMENT :

N.V. Anjaria, J.

The appellant, now aged 31, was tried in Sessions Case No. 127 of 2005 for the offence of committing murder of one Ravindrabhai and came to be convicted for the offences punishable under sections 302 and 323 of the Indian Penal Code, 1860 ('IPC' for sake of brevity) by judgment and order dated 18.04.2006 delivered by Additional Sessions Judge, Fast Track Court, Bharuch. For the offence punishable under section 302, IPC, the appellant was sentenced to life imprisonment and fine of Rs. 5000/- and in default of payment of fine to undergo simple imprisonment for further three months. In respect of conviction for offence under section 323, IPC, he was sentenced to rigorous imprisonment for one year and a fine of Rs. 1000/- and in default of payment of fine to undergo simple imprisonment for further one month. All the sentences were directed to run concurrently.

2. The incident took place on 22.08.2005 at around 10.00 - 10.30 a.m. in the morning at a place 50 feet away near Shiludi Chowkdi opposite the road leading to Godrej Company in the vicinity of village Valiya, Taluka Valiya, District Bharuch. The first informant Shakuben Ravindrabhai Vasava (PW-1), the wife of the deceased lodged the complaint (Exh.12). The prosecution case based on that complaint was that on the day of incident at 10.00 a.m. in the morning PW-1 and her husband Ravindrabhai were sitting at tea stall of one Dudhiabhai near their house. At that time the appellant accused came and told the deceased as to why he was behaving highhandedly in that area. Upon the deceased denying the allegation, the accused scuffled with him. After the scuffle, he went away towards roadside. Thereafter when the complainant (PW-1) and her husband were going towards Valiya Police Station to lodge a complaint, and had reached near Shiludi Chowkdi, the accused came with a long wooden stick of Nilgiri tree and gave 2-3 blows on the forehead of the deceased. Interception by the complainant resulted into injury on her right arm. Her husband fell down in bleeding condition. When she raised shouts, Hanumanbhai Kalubhai Vasava, Dineshbhai Lalubhai Vasava and Lalubhai Vasava arrived at the scene from nearby. The injured was taken to hospital in a rickshaw where he was given first aid and upon medical advice he was thereafter taken to Bharuch Civil Hospital in an unconscious state where the injured succumbed to his injuries at around 1.00 p.m.

2.1. The police registered First Information Report at 15.30 p.m. on 22.08.2005 and the offence was investigated. As sufficient material was found, charge sheet was presented before the learned Judicial Magistrate First Class, Valiya, who committed the case to the court of sessions at Bharuch under section 209 of Criminal Procedure Code, 1973, as the offences were triable exclusively by the Sessions Court. The accused was charged (Exh.4) as per the charge framed by the Special Judge, Fast Track Court No.5, Bharuch Camp, Ankleshwar and was tried in Sessions Case No.127 of 2005. In course of trial the prosecution examined fourteen witnesses. The documentary evidence was led. The trial court recorded further statement of the accused under section 313 of the Cr.P.C. when evidence was over. The trial was culminated into the judgment and order of conviction and sentence which is impugned in the present appeal preferred under section 378(2) of Cr.P.C.

3. Looking into the evidence on record of the trial court, Shakuben (PW- 1), the complainant and wife of the deceased deposed that her husband and the accused had a heated altercation and thereupon had a scuffle between the two took place at 10.00 a.m. on the day of incident when they were at the tea stall of Dudhiabhai. The accused thereafter attacked her husband with a stick of Nilgiri tree hitting for 5-6 times on his forehead of her husband when they were on way to go to file a complaint against him. She also suffered injuries on her right arm in the process. After the assault her husband