1. - This appeal is by Gurdeep Singh S/o Mukhtiyar Singh, who has been convicted for the offence u/s. 302 IPC by learned Additional Sessions Judge, Srikaranpur vide his judgment dated 5.11.1999.

2. As per the prosecution case, deceased-Dalbara Singh was brother of appellant's father and was having land at Chuck 2-EEA whereas appellant- Gurdeep Singh and his brothers viz. Malkeet Singh, Hardeep Singh and Mahendra Singh had a joint land at Phoolkheda at Haryana State. The deceased was residing at Phoolkheda whereas the appellant and his brothers were residing at Chuck 2-EEA. The deceased was desirous of getting the land situated at Phoolkheda where he was residing in exchange of his land situated at Chuck 2-EEA. The other three brothers of the appellant were agreeable to this exchange, while the appellant was not and therefore he was nurturing a grudge against Dalbara Singh, Gurdeep Singh was keen on getting his share of land that was situated in Phoolkheda which was in possession of the deceased. While Dalbara Singh was staying at Malkeet Singh's residence, at about 11.45 p.m. on 24.5.1997, Gurdeep Singh assaulted Dalbara Singh with lathi while he was sleeping outside the house of Malkeet Singh which resulted in his death.

3. According to Purcha Bayan Ex.P/1 of Malkeet Singh on which, FIR Ex.P/2 was registered the complainant's uncle Dalbara Singh S/o Gulab Singh had come to Chak 2-EEA with Balkaran Singh, who was son of complainant's father's sister on 23.5.1997 and were staying with him. On 24.5.1997 his colleague from the co-operative Department viz. his immediate officer SI Saheb and one Mustaq All Audit Inspector had also come to his house and were staying overnight with him. After having taken their dinner, the deceased was sleeping at the Choki in front of his house adjoining to sitting room and by his side, Mustaq Ali and the other officer were also sleeping at a short distance. According to FIR, while deceased and the other officer had slept, Mustaq Ali was awake and that he with his cousin Balkaran Singh was inside house and they were also awake and talking. At about 11.45 p.m., he heard the sound of striking of Lathi. On hearing this, he and his cousin ran towards the gate of the house and on reaching at the gate of the house, he saw that Gurdeep Singh was delivering blow after blow on the head of Dalbara Singh. Seeing them the assailant ran away. When they attended to his uncle, his head had been crushed and he was soaked with blood but he was alive. After he was given water, he died shortly. This Purcha Bayan is alleged to have been recorded at about 1.30 a.m. on 25.5.1997 i.e. within about one hour and 45 minutes of the alleged incident. The FIR does not disclose the name of the officer of the complainant who was alleged to be accompanying Mustaq All, and staying at the residence of informant.

4. On receiving this information, at about 1.30 a.m. the police reached the spot immediately thereafter at about 2.00 a.m.; but no investigation is alleged to have been conducted until next morning. After conducting usual investigation Gurdeep Singh was arrested about 3.30 p.m. on 25.5.1997. Thereafter, challan was submitted by police and the accused was committed to Sessions for trial by the committing Magistrate. The prosecution examined as many as 10 witnesses of which PW-1, Malkeet Singh, PW-2 Mustaq Ali and PW-3 Balkaran Singh have been examined as eye-witnesses. PW-4 Buta Singh has been primarily examined as an attesting witness of the Arrest Memo of Gurdeep Singh (PW-6) and the recovery memo of Lathi (Ex.P/7). He is also the attesting witness of recovery of blood stained cloths of Gurdeep Singh vide Ex.P/8. Ex.P/9 which is a site inspection note of the recovery of Lathi also bears his signatures as attesting witness. He states that he too was staying in the house of Malkeet Singh with the informant at the time of incident but he was sleeping in drunken position and he was awakened only at 4.30 a.m. by Malkeet Si