JUDGMENT

YOGESHWAR DAYAL, J.:—This is an appeal against the judgment of the High Court of Karnataka dated 9th November, 1984 whereby the High Court set aside the order of acquittal dated 11th February 1982 passed by the 11nd Additional Sessions Judge, Belgaum, in Sessions Case No. 84 of 1981 and sentenced the appellant under S. 302 of the Indian Penal Code for having caused the murder of one Devappa Dharmanna Aski (in short Devappa) of Harugeri on 27th June, 1981.

2. Briefly, the prosecution case was that there was a common well for irrigating the land of the deceased Devappa; accused/ appellant and another person (PW 11). The deceased and PW 11 had 50% share in the water of the well and the accused had the other 50%. Earlier the water from the well was utilised by all three on their turn and the water was drawn from the well with the help of a diesel pump installed by the deceased. About a year or two before the incident the accused had installed an electric pump-set. Whenever the deceased would put on his diesel pump the accused also would simultaneously put on the electric pump and deprive the deceased of the water from the well. The said act had caused bad blood between the appellant and the deceased.,

3. The case of the prosecution further was that at the relevant time the deceased along with his second wife Srimanti (PW 1) and grand-son Ajith (PW 2) aged 10-11 years was residing in a farm house at Kurubkodi. The land belonged to his first wife Padmawwa out stood in the name of their son Dharamanna (PW 10). Ajith is a son of Dharmanna.

4. It was the case of the prosecution that on 27th June, 1981, the deceased, after sun rise, went to Harigeri and came back at about 12 noon to his farm house at Kurubkodi ; took his mid day meal and thereafter at about 1.00 p.m. came out of his house smoking beedi with a towel (MO 5) on his shoulder. At that time the accused was in his land and he called out the deceased saying Ye Devya, come here. As the deceased also retorted accused saying Yakale Bheemys and went towards the accused by a few paces, the accused all of a sudden started beating him and pushing him towards Raibag-Harugeri road, even as the deceased was questioning him as to why he was being beaten. In the meanwhile Srimanti (PW 1) had come out of the house to the court-yard for throwing out waste water from the plate in which the deceased had taken the food and was standing in the court-yard and saw the assault on the deceased and started shouting that the accused was killing the deceased. But, before anybody could come to the rescue of the deceased, the accused took the deceased beating him on his head and face with an axe and pushing across the feed-canal and on to the road when the deceased fell down on the right-side, he cut him with the axe. When PW 3, Jinnappa, PW 4, Imamsab and PW 10, Dharmanna and others came there, lie left the place and went away. Sarasawwa (PW7) who was going on his bullock-cart towards his garden land coming from the side of Harugeri towards him saw the accused coming and going away and the accused had alleged to have told him that he had murdered the deceased Devappa saying "............. meaning thereby that he had committed the murder of Devappa and he may be got released. As PWs. 3, 4, 7, 9 and others came to the place of incident on the road side, they found the deceased, who had sustained the injuries, was still alive. They tried to put some water in the mouth of the deceased but the deceased breathed his last. On coming to know of the incident PW 10 the son of the deceased along with his wife also came to the place of incident and thereafter accompanied by PW 1went to the shop of PW 8, Parisa at Harugeri and got a complaint written for being given to Police Station at Kudachi. Accordingly the complaint as prepared by PW 8 was handed over by PW 1 at about 4.00 p.m. to the Head Constable, in charge of the Police Station, PW 15, Mudakayya. On the basis of the complaint Ext. p. 1 the case was re