Judgment

VAIDIALINGAM, J,: - This appeal by the accused, by special leave, is directed against the judgment and order of the Rajasthan High Court dated August 7, 1968 in D. B. Criminal Appeal No. 394 of 1964.

2. The appellant was tried in Sessions Case No. 4 of 1963 by the Addl. Sessions Judge, Ajmer for an offence under Section 302, I. P. C. for causing the death of his brother Bajrang Lal on July 15, 1962, The Sessions Judge acquitted the appellant by his judgment and order dated January 4, 1964. The State filed an appeal before, the High Court against the decision of the Sessions Judge. The High Court has set aside the order of: acquittal and in turn has convicted the appellant for the offence under Section 302, I. P. C. and has sentenced him to undergo imprisonment for life. The case of the prosecution was as follows:

3. The appellant and his three brothers Bhanwarlal, Ucchablal and Bajrang Lal owned jointly 14 bighas of land as joint family property. Bhanwarlal had died some 15 or 16 years before the occurrence. There was a dispute between the appellant and his two brothers Ucchablal and Bajranglal and the heirs of his deceased brother Bhanwarlal on the question of effecting partition of the land About three or four years prior to the occurrence Ucchablal and his brother Bajranglal along with one Hiralal son of their brother Bhanwarlal had filed a suit against the appellant for partition of the land. About two or three days prior to the occurrence, deceased Bajranglal and Ucchablal had commenced putting up the Doli enclosing that portion of the land which, according to them represented their shares. On the day of the occurrence i. e., July 15. 1962, at about 3 P. M. the deceased and Ucchablal as usual went to the field to complete the work of putting up the Doli. When they were at their work, the appellant came to the field at about 6 P. M. armed with a gun and after threatening them fired a shot against Bajranglal. The shot hit Bajranglal on his chest and he fell down dead. When Ucchablal tried to snatch the gun from the appellant, the latter gave him some blows on his knee and back with the barrel of the gun. During this scuffle the genti which Ucchablal had in his hand hit the head of the accused. Ucchablal, on the same evening at about 6.45 P. M., gave a complaint Ex. P. 1 before the police. The accused was arrested the next day and the gun Ex. 13 was recovered from him.

4. P. W. 15, Dr. Umed Singh Rathore, who performed the post-mortem on the body of the deceased found the following external and internal injuries, described in the post-mortem certificate:

{a) External injuries:

(1) A punched circular wound of size of 1/2"x 1/2" x5" depth with inverted ecchymosed edges placed on the chest left side between 3 and 4 ribs 2" from the midsternal line directed towards back

(2) An oval oblique wound of the size of 1/4"x2/3" with everted and irregular edges on back left side 3" from the middle at the level of the 7th spine.

(b) Internal injuries

(1) 8th rib fractured on left side back with irregular rough and crushed fractured ends. A few pieces of bones weeded in the wound.

(2) Pleura on left side torn with a circular wound.

(3) A circular wound hole in the left lung upper lobe anterior aspect with direction behind. Diameter of the hole 1"

5. P. W. 15 has given evidence to the effect that the cause of death was syncope flue to injury to the left lung by a fire arm. The appellant was also examined by P. W. 15 on the same evening. The appellant had a lacerated wound with irregular and contused borders and bleeding on touching placed vertically on the back of the hand on the occipital region, right side 3 inches from the right mastoid. The size of the injury was stated to be 11/4"x 1/5"x1/3". Ucchablal was also examined on the same day by P. W. 15. He had two contusions, three abrasions and a linear scratch. One abrasion and one contusion was on the back and one abrasion was on the left scapular region and one abrasion was on the left kn