JUDGMENT

C. B. Capoor, J. - This appeal by the State of Uttar Pradesh is directed against an order of the learned Civil and Sessions Judge, Fatehpur, acquitting the respondent of an offence under Section 302 I.P.C. The accusation against the respondent was that on July 30, 1962, at about sun-rise time he had committed the murder of Desh Raj while he was sleeping on a cot in front of his house in village Kumharan ka purwa, a hamlet of Chak Saroli police-station Hathgaon district Fatehpur.

2. Basdeo (P.W. 3) is the son of one Pittan who resided in Kumharan ka purwa. On the death of Pittan his widow was kept by Desh Raj deceased who began to reside in the house of Basdeo about five or six years ago. In front of and at a distance of about 100 cubits from the aforesaid house of Basdeo there was a Bel tree close to which was the land of Sheo Bhajan Ahir and with the permission of Sheo Bhajanesh Raj used to tether his cattle on that land. On July 29, 1962 the respondent fixed his pegs in that land. This was taken exception to by Desh Raj who pulled out the pegs and threw them away. An exchange of hot words and abuses took place between Desh Raj and the respondent and a threat was held out