( 1 ) THE State of U. P. has filed - this appeal against the judgment and order dated 4. 10. 1978 passed in Sessions Trial No. A-125 of 1977 by the Sessions Judge, Etawah. Respondent Han Shanker alias Han was prosecuted in the court of Sessions Judge, Etawah for having committed the offence punishable under section 302 IPC.

( 2 ) THE case of the prosecution, as was unfolded in the evidence of Ram Sewak P. W. 1 and other witnesses, may briefly be stated as follows.

( 3 ) SATYA Prakash the deceased, and the accused Han Shanker alias Han were residents of the Village Nagla Tor P. S. Jaswantnagar District Etawah. There is a Neem tree in the Sahan of the deceased Satya Prakash. Towards north of this Neem tree is the public well which is used by the inhabitants of the locality. There was dispute about this Neem tree between the families of the accused Han Shanker and the deceased Satya Prakash.

( 4 ) ON 9th February, 1977, it was about 7. 00 A. M. when Satya Prakash was drawing water from the aforesaid well. His younger sister Km. Suman Lata, P. W. 3 was carrying the water in pitcher to her house. Accused Han Shanker alias Han armed with a gun and carrying bandolier upon