( 1 ) HEARD the learned counsel for the parties.

( 2 ) THE appellant herein was convicted by the trial court under Section 302 of the Indian Penal Code and sentenced to imprisonment for life. He was further convicted under S. 25 and S. 30 of the Arms Act, 1959, and sentenced to undergo rigorous imprisonment for a period of three years and six months respectively. The sentences, however, were ordered to run concurrently. On appeal being preferred, the High Court of Karnataka upheld the convictions and sentences. Hence, this appeal by special leave.

( 3 ) UNDISPUTEDLY, the present case is not a case of direct evidence, but it is a case of circumstantial evidence and in order to convict the accused, the prosecution has relied upon the following circumstances:

(A) Prior to the date of occurrence, there was a partition between the accused and the deceased, who were full brothers, but in spite of partition, a dispute was going on between them over the allocation of shares in the said partition which led to the commission of the present crime at the instance of the appellant. (b) The accused was found present in the house at the time of occurrence wherein the accused and his mother were residing. (c) Extra-judicial confession of the accused said to have been made by him before PW 9, who is the maternal uncle of the accused as well as the deceased. (d) According to the report of the ballistic expert, firing was resorted to from a gun, which was seized from the house in which the accused and his mother were residing and the said gun belonged to the father of the accused as well as the deceased. (e) Hand wash was taken from the accused and the same was sent to the Chemical Examiner, who reported that the same contained gunshot residue.

( 4 ) SO far as the motive is concerned, in our view the prosecution has absolutely failed to prove the same. The prosecution case that there was a previous partition has been attempted to be proved by the document dated 2/4/1996, Exhibit P-46, wherein there is a recital that partition had already been effected by deed dated 31/3/1975, which has not been brought on record. It is not known whether the 1975 deed was a deed of partition or a memorandum of partition. In case partition was effected thereby, we do not know whether the same was registered or unregistered. If it was unregistered, the same could not be taken into consideration to prove partition between the parties as it was inadmissible in evidence. It was pointed out that Exhibit P-46 further shows that apart from the partition effected by deed dated 31/3/1975, parties partitioned their properties at least by the deed dated 2/4/1996, Exhibit P-46. Learned counsel very fairly could not contend that the said deed was a memorandum of partition. This document being not a registered one was inadmissible in evidence and, therefore, it cannot be of any avail to the prosecution to prove partition amongst the two brothers. As the prosecution failed to prove the case of previous partition, the motive that in the previous partition shares were not properly allocated resulting in commission of the present crime, has not been proved by the prosecution.

( 5 ) THE next circumstance is that the accused was found present in the house in which he was residing with his mother. The house being a joint family property, the accused had every right to go there and, therefore, his presence in the house cannot in any manner be taken to be a circumstance against him to show his complicity in the crime.

( 6 ) SO far as the extra-judicial confession said to have been made by the accused before PW 9 is concerned, the same has already been disbelieved by the trial court as well as the High Court. Therefore, it cannot be used against the accused especially in view of the fact that nothing could be pointed out to show that the High Court and the trial court committed error in refusing to place reliance on the extra-judicial confession.

( 7 ) THE next circumstance was that the g