The High Court should exercise its discretion to grant a certificate of fitness to appeal to the Supreme Court sparingly and with care. The certificate should not be granted to afford another hearing on facts unless there is some error of a fundamental character.

Judgment

HIDAYATULLAH, J.: This is an appeal by certificate against the judgment of the High Court of Allahabad dated May 24, 1963 by which the conviction of and sentences passed on the four appellants under S. 302 read with S. 34 of the Indian Penal Code were confirmed. Of the appellants, Babu Singh and Aram Singh have been sentenced to death and Gajram Singh and Ram Singh to imprisonment for life. The charge against them was that they had murdered one Babu Singh pradhan at village Behjoi on October 11, 1961. The pradhan was attacked by the appellants with spears, gandasa and lathi. The spears were with Aram Singh and Ram Singh the gandasa with Babu Singh and the lathi with Gajram Singh. The motive for the attack was said to be some former quarrels between Babu Singh pradhan and father of Babu Singh the appellant and the action of the pradhan after his election in supporting on behalf of the Goan Samaj proceedings for encroachment started against the fathers of the appellants sentenced to death.

2. On the day of occurrence Babu Singh pradhan had gone on cycle to Behjoi to negotiate for the purchase of a Persian wheel. He had his cycle repaired by one Amrik Singh who was examined as a Court witness. He was returning to his own village Alpur situated to the North-East of Behjoi at a distance of four miles when he was way-laid, felled from the cycle and fatally attacked by the appellants. The report of the incident was made by his brother sangram Singh at Behjoi Police Station at 8-30 p.m. Sangram Singh claimed to have accompanied his other to Behjoi and to be in his company at the time of the assault. He was the principal eye-witness in the case. He gave the time of the assault as 6 p.m. The First Information Report also mentioned the names of Man Sukh (P. W. 9), Ved Ram (P. W. 4) and Jia Lal (P. W, 11) as eye-witnesses. In the Report one Umrao was also name but he was not examined as it was alleged that he had been won over by the defence.

3. The prosecution examined 16 witnesses in support of the case. Two witnesses were examined by the Court and 4 witnesses were examined for the defence. The Sessions Judge, Moradabad accepted the evidence of enmity and also of the eye-witnesses and convicting the appellants under S. 302/34, Indian Penal Code sentenced them as above. Aram Singh who had struck Babu Singh pradhan on the head and transfixed it with his spear from temple to temple and caused other injuries on vital organs was sentenced to death as also Babu Singh who had almost decapitated Babu Singh pradhan with the gandasa. The other two appellants were given the lesser punishment because they had played a minor part. All accused appealed to the High Court.

4. The appeal was heard, in the High Court by D. S. Mathur and Gyanendra Kumar, JJ. and Mathur, J. was for dismissing the appeal. While Gyanendra Kumar, J. was for allowing it. The points of difference were (a) whether the First Information Report was made on October 11, 1961 at 8.30 p.m. or much later, (b) whether the offence took place at 6 p.m. or later when there was no light to identify the assailants, and (c) whether the eye-witnesses were at all present at the scene and/or were reliable. Mathur. J, concurred with all the conclusions of the Sessions Judge; Gyanendra Kumar, J. differed because he disbelieved that Sangram Singh had accompanied his brother. His reasons were that he need not have accompanied the pradhan and the shop-keeper with whom the brothers were said to have dealt for the purchase of the Persian wheel was not examined and Amrik Singh who repaired the cycle of the pradhan did not mention sangram Singh. He observed that if Sangranm was present at the scene he too would have been slain and the statement that he was pedalling 14 or 15 paces behind the pradhan was not believable because cyclists generally ride abreast. He pointed out that as only one cycle was found at the spot and not the other Sangram Singh had not gone there on cycle. He deduced this from t