S.S.BYAS, J. - (1.)THIS appeal by accused Bhagwana is directed against the judgment of the learned Sessions judge,m Balotra dated june 16, 1981 convicting the appellant under Section 302, IPC and sentencing him to imprisonment for life with fine of Rs. 800/ -, in default of the payment of fine to futher undergo six months' rigorous imprisonment further undergo imprisonment.
(2.)BRIEFLY stated, the prosecution case which is short and simple, is that the deceased Manaram was the elder brotherof PW 4 Kanarm. The appellant is a resident of their village Khanda district Barmer. Kanaram and the deceased went to their field with a bullock -cart in the morning of October 20, 1980 to bring Bajra. When, they reached their filed at about 8.00 they found the appellant Bhagwana cutting the twigs of a Khejri tree standing in their field. They asked the appellant not to do so and rebuked him. This led to a wrangling between the appellant and Manaram. Manaram gave a beating to the appellant. The appellant became annoyed. He held out the threat that he would not leave Manaram alive. Thereafter he went away. At about 12 00 hours in the noon, Kanaram and the dieted left their field to go to their house taking the bullock cart with them, When they reached near the field of one Jethaji, they met the appellant and his brother Poonma (co -accused but acquitted by the trial court) Poonma had a Lathi while the appellant had an axe. The appellant struck a blow on the head of Manaram with his axe. Poonma also struck some blow, to Manaram with his Lathi. Manaram fell down Kanaram tried to intervene and he too was landed blows by Poonma. PW 6 Jaisingh, who was a few steps behind, meanwhile reached there the spit. He and Kanaram lifted Miairaro and placed him in the cart Manai am did not survive and passed away instantaneously then and there. Jaisingh remained with his dead body while Kaiaram went to inform his father Sawaram (PW 5). Sawaram arrived on the spot and found his so, Manaram dead He went to Police Station, Samdari and oresented I written report Ex P.6 of the occurrences at about 5.00 PM. The police registered a case and proceeded with investigation. The Station' House Officer Prem Singh (PW 11) reached the spot, prepared the inquest report of the dead body of Minaram and inspected the site. The autopsy of the victim's dead body was conducted at least P.00 AVI on October 20, 1480 by PW 3 Dr. Jodh Raj, the then Medical Officer Incharge, Primary Health I Centre, Samdari. He noticed the following injuries on the victim's dead body: External:
(1) Bruise 2 -1/2x1.5 cm reddish over the right side of chest 3cm above the sub -costal margin. (2) Bruise 2 x 1 -5 cm over the left sub -costal reddish. (3) A swelling 2 x 1.5 cm behind the right car (4) Incised wound 5 x 0.5 cm x 2 cm depth (post end), over the vortex in the antore posterior direction.
Internal:
(1) Skull - fracture of right parietal bone, some pieces separated and shifted inside the skull (2) Meninges and Brain - Lacerated wound correspoding to the fracture of 5 x 2.5 x 0.5 cm size.

In the opinion of Dr. Jodhraj, Manaram died on account of grievous head injury caused by sharp weapon leading to coma and symcope due to haemorrhage. The post mortem examination report issued by him is Ex. P.4. The appellant was arrested and in consequence of the information furnished by him on October 24, 1980 whilst under police custody, an axe as recovered. Oh chemical examination made by the Serologist, human blood was detected on it. On the completion of investigation, the police presented a challan against the appellant and Poonma in the court of Munsiff and Judicial Magistrate, Stwana, who in his turn comitted the case, for trial to the court of Sessions. The learned Sessions Judge framed a charge under Section 302, IPC. against the appellant and. under Section 302/34, IPC, against Poonma. Both the accused pleaded not guilty and faced the. They denied the whole prosecution case and claimed absolute innocence In support of its case, the prosecution examined eleyn witnesses and filed some documents. In defence, the accused examined one witness. On the conclusion of trial, the learned Sessions Judge found no incriminating material against accused Poonma. He was consequently acquitted. The charge waist appellant Bhagwana was held duly proved. He was therefore, convicted and sentenced as mentioned at the very out set. Aggrieved against his conviction, accused Bhagwana has come -up in appeal.

(3.)WE have heard Mr. S.R. Singhi, learned Counsel appealing for the appellant and Mr. Niyazuddin Khan, the learned Public Prosecute of We have also gone through the case file carefully.