Judgment

IMAM, J. : This appeal is by special leave. The appellant was convicted under S. 304, Part I of the Indian Penal Code and sentenced to imprisonment for life. He appealed to the Bombay High Court. According to the judgment of the High Court the appeal was admitted only on the point of sentence. The High Court reduced the sentence from imprisonment for life to 10 years rigorous imprisonment.

2. It was submitted on behalf of the appellant that the High Court could not, in law, admit an appeal only on the point of sentence and the appellant was entitled to have his appeal heard on the merits of his conviction as well. The evidence upon which the appellant was convicted was unsatisfactory and he was entitled to be acquitted.

3. Shortly stated, the case of the prosecution was that the appellant had caused the death of Zina Hira on April 6, 1957, when the deceased was returning from an adjoining village to the village of his residence. The appellant met him on the way and accused him of having committed theft in the appellant s house which the deceased denied. Upon this the appellant attacked him with a stick which had iron rings round it. A number of blows were given by the appellant with this stick in consequence of which Zina Hira fell down. Although a doctor was called for from Keshod. 8 miles away, ultimately the deceased was taken to Junagadh for better medical treatment but died on the way in the early hours of the morning of April 7.

4. According to the case of the appellant he was not present at the scene of the crime and pleaded not guilty to the charge.

5. According to the judgment of the High Court the appeal of the appellant before it was admitted only on the point of sentence. It was urged that this procedure adopted by the High Court was not in conformity with the provisions of Ss. 421 and 422 of the Code of Criminal Procedure. Reliance was placed upon the decisions of the Calcutta High Court and Patna High Court in the cases of Nafar Sheikh v. Emperor, ILR 41 Cal 406,Gaya Singh v. Emperor, ILR 4 Pat 254, Sudhir Kumar v. Emperor, AIR 1942 Pat 46 and Sheikh Rijhu v. Emperor, AIR 1931 Pat 351(1), and of the Privy Council in the case of Emperor v. Dahu Raut, 62 Ind App 129. Reference was also made to the decision of the Patan High Court in the case of Kuldip Das v. Emperor, ILR 11 Pat 697: and the decision of the Bombay High Court in the case of Bai Dhankor v. Emperor, ILR 1937 Bom 365.

6. In order to appreciate the submission made on behalf of the appellant reference to certain provisions of the Code of Criminal Procedure in Chapter XXXI concerning Appeals will be necessary. Under S. 418 (1) an appeal may lie on a matter of fact as well as a matter of law, except where the trial was by jury, in which case the appeal shall lie on a matter of law only. It is unnecessary to refer to sub-S. (2) of this section for the purposes of this appeal. Under S. 419 every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader and every such petition shall (unless the Court to which it is presented otherwise directs) be accompanied by a copy of the judgment or order appealed against, and, in cases tried by a jury, a copy of the heads of the charge recorded under S. 367. As to what should follow on the presentation of such a petition it will be necessary to quote the provisions of Ss. 421 and 422 of the Code. Section 421 reads:

"421. (1) On receiving the petition and copy under S. 419 or S. 420, the Appellate Court shall peruse the same, and, if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily:

Provided that no appeal presented under S. 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same.

(2) Before dismissing an appeal under this section, the Court may call for the record of the case, but shall not be bound to do so."

Section 422 reads:

"422. If the Appellate Court