JUDGMENT

Subodh Abhyankar, J. - This criminal appeal has been filed under Section 374(2) of Cr.P.C. against the judgement dated 09.02.2012, passed in Sessions Trial No.215/2009 by Additional Sessions Judge, Agar, District Shajapur (MP) whereby finding the appellant guilty, the learned Judge of the trial Court has convicted him under Section 302 of IPC and sentenced to undergo rigorous imprisonment for life with fine of Rs.5,000/- and in default of payment of fine further undergo three months simple imprisonment.

2. In brief, the facts giving rise to the present appeal are that on 10.06.2009 at around 11 O' clock in the morning the incident took place at Master Colony, Agar in front of Sodan Singh's house wherein the deceased Suresh was murdered by assault on his head by spade (Fawda). In the incident one Kuldeep was also assaulted, hence, initially the FIR under Section 307, 294, 323, 506/34 of IPC has been registered, however, after the death of Suresh, Section 302 was also added. The case of the prosecution is that earlier, deceased Suresh had sold a plot to Sodan Singh, but later on Sodan Singh came to know that the plot is disputed, hence, Suresh told him that he would get the boundary wall constructed on the said plot and on the date of incident i.e. on 10.06.2009, when the boundary wall was being constructed, the appellant approached the spot and objected to the construction of the boundary wall, when this was intimated to the deceased Suresh, he reached on the spot along with his son Kuldeep, which led to scuffle between the parties in which appellant Kailash assaulted the deceased with a spade (Fawda) on his head and other two persons were also assaulted Suresh and Kuldeep. Suresh was taken to the Agar Hospital and the matter was reported to the police. Subsequently, Suresh was taken to Dewas, where he died while being treated. After the charge-sheet was filed, the learned Judge of the trial Court recorded the evidence and convicted the appellant under Section 302 of IPC while other co- accused persons, namely, Amit and Rakesh were acquitted. Hence this appeal.

3. Shri Girish Desai, learned counsel appearing for the appellant has submitted that the appellant has been falsely implicated in the case and even otherwise it is not a case falling under Section 302 IPC as it is a case of property dispute as the appellant happens to be the real brother of the deceased Suresh who had sold the family property to Sodan Singh without their being any partition and thus, at the most the case would fall under the exception of right of private defence of property extending to causing death. It is also submitted that the appellant has also suffered injuries on his head and there is no explanation about the same in the charge-sheet.

4. Counsel has also drawn the attention of this Court to the defence witnesses. DW-1 Dr. R. L. Malvi had examined the appellant on 16.06.2009 at Primary Health Centre, Agar and had found four injuries on different parts of his body including his head. He had also examined appellant's son Amit on that day and had found a blunt head injury. The other accused Amit had also suffered injury on his cheek. He had also examined appellant's other son Rakesh and had found abrasions on his body. The injuries were around 5 to 7 days old. DW-2 Harishchandra has proved the complaint Ex.D/6 lodged by appellant's son Rakesh wherein it was stated that Suresh (deceased) had sold the land more than his share.

5. DW-3 is the appellant Kailash himself, who is a retired Road Transport employee. According to him the land was purchased by him, his brother Ashok, his father Nathulal, Yashoda Bai and Kusum jointly and his father died in the year 2003. who had 1/5th share in the property and, hence, after the death of his father, his 1/5th share was mutated in the names of he himself, his two brothers Ashok, Suresh (deceased), his sister Pushpa and his mother Yashoda Bai. Deceased Suresh had 15 aare land in his favour, however, he had sold