TYAGI, J —Appellant Gulab Singh along with five other persons was tried by the Additional Sessions Judge No. 2, Jodhpur, for the murder of Lalsingh, but the learned Judge acquitted all other accused persons except Gulab Singh who has been convicted under sec. 302 Indian Penal Code and sentenced to imprisonment for life. It is against this judgment of the learned Additional Sessions Judge dated 5th March, 1973, that the present appeal has been preferred by the appellant.

2. The prosecution story, as revealed by the eye witnesses Omprakash (P.W. 1) and Sukh Singh (P. W. 7) is as follows:

Lalsingh was one of the co-sharers of the well, known as Narayan Sagar, but he had constructed his own reservoir for the purpose of watering his field. It is alleged that Lalsingh had constructed a Nali to water his field in the lands belonging to another co-sharer, namely, Gobarji and Jethuji. This act of Lalsingh was resented by the aggrieved co-sharers and a case under sec. 145 of the Criminal Procedure Code was initiated by them against Lalsingh. On the day of occurrence, that is, on 15th of October, 1972, Lalsingh had planned to increase the capacity of his reservoir by making certain constructions on the existing reservoir and for that purpose he had collected material near the well. Lalsingh and his elder son Sukhsingh (P.W. 7) were working at the reservoir at about 1.00 p. m. and it is at that time that six persons, including Gulab Singh, came, to the field and asked Lalsingh to stop the construction. Lalsingh tried to persuade them to accept his plea that the Nali was constructed in his own land as will be evident from the map that he had obtained from the Revenue Department. Lalsingh sent for the map from his Dhani which was situated at a distance of 150 paces from the well Sukhsingh went to the Dhani to bring that map. When he was bringing the map from his Dhani, his brother Omprakash (P.W. 1) also accompanied him to well. At that time, it is stated that all the six persons were standing in a circle round Lalsingh. When Lalsingh started showing the map to the aggrieved co-sharer, Gulab Singh, who was armed with a lathi and who was standing behind Lalsingh, gave a lathi blow on his head, with the result that Lalsingh fell down and thereafter other members of the party belaboured Lalsingh with lathis, fists and kicks. Blood started coming out from the nose, ear and mouth of Lalsingh. Sukhsingh (P.W. 7) who was standing near Lalsingh immediately escaped from that place and after taking his bicycle from the Dhani rushed to the Police Station, Mahamandir to lodge the report of the incident. Premsingh also got frightened and he also took shelter in a nearby place. Report (Ex. P. 5) was lodged at the Police Station by Sukhsingh at 2 00 p. m. Raghav Das Head Constable (P.W. 14), who was incharge of the Police Station, registered a case and immediately proceeded to the spot of occurrence, but there he discovered that injured Lalsingh had already been removed to Mahatma Gandhi Hospital, Jodhpur, where he was admitted by Dr. N.K. Mittal as an injured patient at 3.30 p. m. At 4.00 p. m. Lalsingh breathed his last.

3. All the six persons belonging to the assailant party were challenged for offences under sec. 302 read with sec. 149 and sec. 148 Indian Penal Code, but the learned Additional Sessions Judge, after they were sent for trial, altered the charge of Gulab Singh and a charge under sec. 302 and sec. 148 was framed against him.

4. The prosecution produced as many as 14 witnesses. The accused persons denied the charge but did not produce any evidence in support of their defence. The learned Judge, however, did not place reliance on the prosecution story as disclosed by the eve witnesses about giving lathi and fist blows to the deceased by persons other than Gulab Singh, but believed the prosecution as disclosed by Sukhsingh (P.W. 7) and Omprakash (P.W. 1) that the author of the head injury sustained by deceased Lalsingh was none but Gulab Singh a

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