Vyas, J. - (1.)By his judgment dated 28th October, 1978, the learned Sessions Judge, Dungarpur convicted accused Dungar under section 302, I.P.C. and sentenced him to imprisonment for life with a fine of Rs. 200/-, in default of the payment of fine to further undergo two months like imprisonment. The accused has come up in appeal to challenge his conviction and sentence.
(2.)Briefly stated, the prosecution case. which .is short and simple, is that deceased victim Gautam was the real brother of the accused. P.W.1 Dhula is their father while P.W.2 Smt. Leela is their mother and PW.3 8mt. Kesar is their sister. Accused Dungar was living in a separate premises of the joint house and was also cooking food separately. It is alleged that there was a dispute between the deceased victim and the accused over the shares of the property of joint family. In the night between 3rd and 4th May, 1978 P.W.1 Dhula, P. W. 2 Leela and P.W. 3 Mst. Kesar were sleeping on separate cots. The deceased was also sleeping on cot near them. The accused came in tile mid-night with an iron rod in his hand and struck a few blows to Gautam. P.W. 1 Dhula, P. W. 2 Smt. Leela and P.W.3 Smt. Kesar tried to intervene. The accused also struck a few blows to each of them the condition of Gautum become precarious and he was immediately taken to Government Hospital Dugnapur for treatment. He was admitted there but despite the treatment he did not survive and breathed his last on 12-5-78 at about 6.5 P. M. Since the offence had taken place in the territorial jurisdiction of Police Station. Ganeshpur, tile police at Duogupur informed the Station House Officer, Ganeshpur the Station House Officer Ganeshpur Police Station reached the hospital at Dugnarpur and recorded the statement cixpol of Daula (P. W. 1). A Case illider sections 307 and 323, L.P.C. was registered on its basis on 5.5.78. On the death oh the victim, section 3J2, I.P.C. was added file post mortem examination of the victims dead body was conducted at about 8.30 A. M. on 13.5-78 by Medical Jurist Dr. D. N. Upadhayay (P.W.9). He found the following injuries on the victims dead body:
1.Lacerated wound on forehead on right side 6 x 1/2' xl going to the left eye perforating left eye ball. Brain matter coming out of wound that is frontal bone fractured and a chip of bone lying loose in wound. Achymesis on both eyes on lower and upper lids present. There was a cut in the lower lid of right eye 1/2 c.m. x 10 c.m. x 1/10 c.m. on medial side. This injury was grievous and caused by blunt object.

2. Lacerated wound on left leg in its lower It4th on medial side 1 c.m. x 1/3 c.m. x 1/2 c.m. This injury was simple and caused by blunt object.

(3.)Lacerated wound on left leg in its upper half 115 c.m. x 1/3 c.m. This was also simple and caused by blunt object. In the opinion of Dr. Upadhiyay the cause of death was head injury with brain tissues laceration. The report issued by him is Ex.P-12. After when the investigation was over, the police submitted a challan against the accused in the Court of Munsif and Judicial Magistrate, Dungarpur, who in his turn committed the case of trial to the Court of the Sessions. The learned Sessions Judge framed charges under sections. 302 and 323, I.P.C. against the accused, to which he pleaded not guilty and faced the trial. During trial, the prosecution examined 12 witnesses and filed some documents. In defence, the accused adduced on evidence. On the conclusion of trial, the learned Sessions judge found the charge under section 323, I.P.C. duly proved against the accused. He, however, held that the charge under section 302, I.P.C. did not stand proved. The accused was consequently convicted and sentenced under section 302 I.P.C as mentioned above. Aggrieved against his conviction and sentence the accused has taken this appeal. 3. We have heard the learned amicus curiae and the learned Public Prosecutor. We have also gone thought the case file carefully