JUDGMENT:

S.B. SINHA, J :

This appeal is directed against a judgment and order dated 24.11.1999 passed by a Division Bench of the Madhya Pradesh High Court at Jabalpur in Criminal Appeal No. 762 of 1988 whereby and whereunder a judgment of the learned Sessions Judge, Taikamgarh, Madhya Pradesh dated 30.12.1987 in Sessions Trial No. 4 of 1987 acquitting the appellant from the charge of commission of an offence punishable under Section 302 of the Indian Penal Code, was set aside.

The basic fact of the matter is not in dispute. One Devakinandan (PW-3) is the father of the appellant as also the deceased Rameshwar. Appellant herein is his son through his first wife. After the death of his first wife, Devakinandan married one Binna. The deceased and Ram Sahay (PW-4) were his sons and Ramsri (PW-6) was his daughter through Binna, the second wife of Devakinandan.

On 08.11.1986 at about 10 a.m. Paras Ram (PW-1) Devakinandan (PW-3), Raj Kumar (PW-2) and the appellant were talking beneath a neem tree near the house of PW-3 as regards partition of the lands belonging to him.

Appellant herein claimed = share in the property of PW-3. PW-3, however, declined to give him = share stating that he had three sons and all the sons would get equal shares.

PW-4 Ram Sahay, (brother of the deceased) and the deceased at that point of time were minors. They were taking bath at a well. PW-4 after taking bath left for his house. Appellant, in the meanwhile, went towards the well with an axe in his hand. While the deceased was taking bath, he allegedly assaulted him by giving two or three blows with his axe on his neck saying that he had done the division in two parts. He also gave an exhortation that whoever would come would be killed; upon hearing of which, PW-1, PW-2 and PW-3 allegedly entered their respective houses. PW-6, Ramshri (sister of the deceased and PW-4), who was standing near her house, heard the alarm that the appellant had killed Rameshwar, came to the spot and found her brother lying in an injured condition. She immediately alarmed her brother PW-4 not to come from his house. Appellant from the place of occurrence went to the Police Station, Niwari. He purported to have made a statement before the officer in charge at the Police Station, disclosing that Rameshwar had been killed with the axe carried by him in his hand. At that point of time, one Rajendra Shekhar, who was an advocate as also a journalist was present in the Police Station. He examined himself as PW-11.

On the basis of the said information, the officer in charge of the Police Station came to the spot. PW-1 made the following statement before him :

"I am doing agriculture in Byavata Ram Sahai, Rameswar, Swami Prasad are sons of my uncle. Swami Prasad was the son of elder wife and Rameswar was the son of younger wife. Swami Prasad is in possession of half the land. While Devaki Nandan wanted to give one-third share to Swami. Today at about 10 O clock in the morning, Swami Prasad, Dewaki Nandan, Raj Kumar Yadav and I were sitting under Neem Tree. Swami Prasad said "I am son of married lady (wife), give me half share of the land", Dewaki said you are three brothers".

Therefore you will get only one third share. At that time, Ram Sahai, Rameswar were taking bath on the well. After a short time, Ram Sahai went to, Swami Prasad armed with an axe reached the well where Rameswar was bathing and suddenly make strike with axe two three times and shouted "see", there are two parts. We saw dying Rameswar thereafter Swami shouted "come" all to be killed. Raj Kumar, Dewaki Nandan and I ran and entered in the house. Swami Prasad kept on waiting with axe for some time and then moved towards Niwari. Till now, I stayed at the home on account of fear. Having come there, I saw, there were axe injuries on Rameswars neck and he had died. Therefore, I lodge this report. Investigation may be done.,"

A First Information Report was drawn on the basis of th