P.W.5 Kamlesh and P.W.6 Aghania Bai, wife of the deceased, P.W.7 Ghanshyam Sahu, P.W.8 Chanduram Sahu, P.W.9 Nohar Singh and P.W.10 Gopal Ram Sahu, he is not disputing that the appellant has not caused homicidal death of the deceased. He further submitted that as per the evidence of above witnesses, the appellant and deceased are real brothers and were coming together, they were discussing, during which period.some altercation took place between them, the deceased held axe, the appeljan{|[:>ust'iedi|||iyE|E^;e!asea5|v|i6raupQn he fell down and thereafter taking the'axe.owned and possessed by thg dgceased, the appellant has eaused three injuries, whieh shows that on accouht|Qf?pr£>perty dispute, deceased provoke$J.thB',a{:)pellanl;and on heat of. passioBfthe appellant after snatching the ;axe^om the possession of the deceased, caused injuries ta'B\m-:- Therefore, the appellant's conviction squarely falls within the ambit of Section 304 Part 1 and not under Section 302 of the I.P.C. While convicting thelfappellant uncier Section 302 of the I.P.C., the trial Codrt has not considereet^ the; aforesaid facts and thereby committed illegality.
