- (1.) This appeal by special leave is directed against a judgmnet of the High Court of Allahabad dismissing the appeal of Partap appellant and maintaining his conviction under Section 302, Penal Code. The facts of the prosecution case as narrated at the trial by Raj Kumar, the star witness of the prosecution, were as follows: Raj Kumar had installed a Tubewell in his filed known as 'Chharelawala field' in the revenue estate of village Sant Kuiyan, in the year 1962. The water pumped out from this tubewell was utilised by him not only for irrigating his own fields but also those of the neighbours against charges. Subsequently, Puttu Lal accused also set up a tubewell in his land situate in the vicinity of Chharelawala filed. Puttu Lal, too, started letting out the use of his tubewell on hire. An unhealthy competition ensued between Raj Kumar and Puttu Lal in this water business, and their relations became strained. There was a water channel running from North to Sough in Raj Kumar's field through which Puttu Lal used to supply water to others. To the South of Chharelawala field, there is a grove belonging to Sia Ram, Pardhan of the village. The tubewell of Puttu Lal is located towards the South of that grove. To the West of the Chharelawala field is a plot belonging to Puttu Lal.
(2.) Two or three days before the occurrence in question, there was an exchange of hot words between Raj Kumar and Puttu Lal when the latter insisted on taking water through the said channel. Raj Kumar firmly refused Puttu Lal the use of that channel.
(3.) On 5-1-1967 at about 7.45 a. m. Raj Kumar and his brothers, Ramchander and Bhagwan Sahai, started demolishing their channel so that Puttu Lal should not be able to supply water through it. About fifteen minutes thereafter, Puttu Lal and his son, Ram Parkash, appeared on the northern ridge of the grove of Siya Ram. Puttu Lal was carrying a lathi and Ram Parkash a bhala. Puttu Lal asked Raj Kumar and his companions not to demolish the channel. Raj Kumar rudely refused asserting that the channel belonged to him and he had every right to erase it. Raj Kumar advanced towards Puttu Lal threatening to break his head with the spade, and thus settle the matter once for the all. On being so threatened, Puttu Lal shouted to has son, the appellant, to come immediately with his gun. In response to Puttu Lal's call, the appellant armed with the double-barrel licensed gun of Puttu Lal, and Puttu Lal's other son, Suresh, armed with a pistol, came. A couple of minutes after the arrival of the appellant and Suresh, the deceased Ram Nath who was the son of Raj Kumar's wife's brother, came out running from the grove. He shouted to Raj Kumar not to be afraid as he would settle the matter with everyone of the accused and break their heads. On seeing the deceased, Puttu Lal said: "He thinks himself to be a lion, let us see him first of all". On this instigation Partap fired his gun at Ram Nath from a distance of four or five paces. On receiving the gun shot, Ram Nath turned back when he was hit by a second shot fired by Suresh from his pistol. Ram Nath dropped dead. The accused then ran away taking their weapons with them. Raj Kumar PW 1 went home, scribed the report. Exh. ka-3, and handed it over in the Kain Ganj Police Station, 8 miles away, at 9.30 a. m. After registering a case on the basis of this report, Sub-Inspector Kartar Singh reached the spot and started the investigation. He prepared the inquest report and sent the body for post-mortem examination.;