JUDGMENT 1. - Appellant Moti was tried for the offence under section 302 Indian Penal Code by the learned Sessions Judge, Udaipur and by the judgment dated March 24, 1977 held guilty for that offence and sentenced to imprisonment for life. 2. Briefly stated the facts of the case giving rise to the trial and conviction of the appellant are as under:On January 21, 1976 at about 6.00 P.M. appellant Moti hurled abuses to his brother deceased Sawa. Sawa asked him not to do so but with no fruits. Moti appellant went inside his house and brought the gun and fired the shot towards Sawa Sawa sustained pellet injuries in his abdomen and died instantaneously. Phool Singh (PW. 1) and Chunia (P.W. 2) had seen the occurrence. Phool Singh (P W. 1) went to Police Station, Kanod and lodged the report Ex. P. 1. Amar Singh (P.W. 12), the Station House Officer of that Police Station registered the case and went to the site and proceeded with the investigation. He arrested the appellant vide memo Ex. P.7. At the time of his arrest one glass bottle containing gun powder and three cartridges were found in his pocket. A licence of the gun and 95 pellets were also recovered from his possession. After his arrest while under custody the appellant furnished information for getting the gun recovered from his house and in pursuance of that information gun Ex. 1 was recovered from his house It was sent for examination to Ballistic expert. The report of the Ballistic expert is Ex. P. 13. 3. After completion of necessary investigation, chargesheet against the appellant was filed in the Court of Munsif and Judicial Magistrate, Udaipur. The learned Magistrate finding a prima facie case exclusively triable by the Court of Sessions, committed the appellant to the Court of Sessions Judge, Udaipur to stand his trial there. The learned Sessions Judge chargesheeted the appellant for the aforesaid offence and on his denying the indictment and claiming to be tried proceeded with the trial. Prosecution examined twelve witnesses in all to substantiate its case. The appellant in his statement under section 313 of the Code of Criminal Procedure totally denied the allegations levelled against him. No defence witness was examined. The learned trial Judge placed reliance on the prosecution evidence and convicted and sentenced the appellant as stated earlier. 4. Prosecution examined twelve witnesses in all to substantiate its case. The appellant in his statement under section 313 of the Code of Criminal Procedure totally denied the allegations levelled against him. No defence witness was examined. The learned trial Judge placed reliance on the prosecution evidence and convicted and sentenced the appellant as stated earlier. 4. Being dissatisfied by his conviction and sentence the appellant has preferred this appeal through the Superintendent, Central Jail, Udaipur. As he was unrepresented, Mr. S.R. Singhi Advocate was appointed Amicus-Curiae to plead on his behalf. 5. Mr. S.R. Singhi learned Amicus-Curiae strenuously contended that from the evidence on record it is not established beyond reasonable doubt that it was the appellant who had fired the shot towards Sawa. Another ground raised to assail the finding of the learned trial Judge by Mr. Singhvi is that even if the prosecution case about appellant Moti being the author of the gun shot injuries of Sawa is taken to be true still in view of the inconsistent version of the witnesses as to whether Moti had two gun with him or he had gone inside the house to fetch the same, the case does not fall within the ambit of section 302 Indian Penal Code. The reason advanced by the learned Amicus-Curiae to substantiate his contention is that if there was hot altercation between the two brothers i.e. the appellant and the deceased, then the case of the appellant may fall within the ambit of grave & sudden provocation and therefore, the appellant cannot be held guilty for the offence under section 302 Indian Penal Code. 6. Mr. M.C. Bhati, learned Public Prosecutor controverted these contentions and submitted that there is oral as well as documentary evidence to substantiate the prosecution case and the intention of the appellant could not have been other then to commit the murder of Sawa because of the quarrel relating to the way in the field. 7. Prosecution has led oral as well as circumstantial evidence to establish the guilt against the appellant. The eye witnesses to the occurrence are Phool Singh (P.W. 1) and Chunia (P.W 2). Both these witnesses have categorically stated about the hurling of abuses by the appellant to his brother Sawa and then insisting upon taking his bullocks through the field and Sawa resisting to that demand. The circumstantial evidence is the recovery of the gun Ex. The eye witnesses to the occurrence are Phool Singh (P.W. 1) and Chunia (P.W 2). Both these witnesses have categorically stated about the hurling of abuses by the appellant to his brother Sawa and then insisting upon taking his bullocks through the field and Sawa resisting to that demand. The circumstantial evidence is the recovery of the gun Ex. P. 10 in pursuance of the information furnished by the appellant while under custody and the report of the Ballistic Expert that the gun was in workable condition. The Ballistic Expert has also opined that the lead pieces contained in the parcel (taken out from the body of the deceased) appeared to be of the same type as the 95 lead pieces (recovered from the possession of the appellant) contained in another parcel. 8. This is correct that the origin of the incident was hurling of abuses by the appellant to the deceased. If Sawa also would have exchanged abuses or hot words the matter would have been different.In that case the contention of the learned Amicus-Curiae that there was occasion for the appellant to be provoked would have carried some weight but in the present case the two eye witnesses have categorically stated that it was the appellant who had hurled abuses and Sawa had only asked him not to do so. Again it was the appellant who insisted upon the deceased to give him way through the field and without there being any act of annoyance by the deceased fired the gun towards the latter. The only inconsistency in the statement of the witnesses ' pointed out by the learned Amicus-Curiae is that in their police statement they had stated about the appellant firing the gun from the door while in their statement at the trial they have stated about the firing of the shot from outside the door. That in itself, in our opinion would not be sufficient to brand the two eye witnesses as liers whose statements otherwise are quite consistent and inspires confidence. Both these witnesses have stood well in the lengthy cross-examination from the defence side and nothing could be elicited from their statements so as to suggest that the appellant had any occasion to get enraged so as to bring his case within the first exception of section 300 Indian Penal Code. Both these witnesses have stood well in the lengthy cross-examination from the defence side and nothing could be elicited from their statements so as to suggest that the appellant had any occasion to get enraged so as to bring his case within the first exception of section 300 Indian Penal Code. The testimony of the eye witnesses stands duly corroborated by the circumstantial evidence. Both of them have identified the gun recovered from the possession of the appellant in pursuance of his information to be the weapon of offence. The learned Amicus-Curiae could not point out any infirmity in this part of the prosecution case. 9. In this view of the matter, the learned trial Judge has arrived at a correct conclusion that the appellant was the author of the gun shot injuries of deceased Sawa. The circumstances do not suggest of there being any occasion or justification on the part of the appellant to commit the crime and therefore, he has been correctly imputed with the intention of committing the murder of his brother Sawa who was reluctant to allow him the way in his field or the bullocks. In these circumstances, the judgment of the learned trial Judge based on sound reasoning's after proper appreciation of the evidence, does not call for any interference. 10. Consequently, the appeal having no merits is dismissed.Appeal Dismissed. *******