Judgement

SHELAT, J. :- This appeal by special leave impugns the judgment of the High Court of Calcutta by which the High Court dismissed the appellant s appeal and upheld the Trial Court s order of conviction under S. 326 of the Penal Code and a sentence of three years rigorous imprisonment thereunder imposed upon him.

2. One Kumud Ranjan Roy and the appellant were at all material times neighbours residing in village Belgram in the District of Burdwan. The two were on hostile terms, partly on account of previous litigation and partly due to local elections.

3. On March 5, 1964 at about 11.30 A.M. Kumud Roy was working in his courtyard assisted by a workman by the name of Madhusudan Das. They both heard a row outside the front door of Kumud s house, whereupon Madhusudan, followed by Kumud went to the front door to ascertain what that row was about. As soon as Mudhusudan opened the front door the appellant, who was there with some other persons variously armed, gave a blow with a kencha which fell on Madhusudan s left thigh. On an alarm raised by Kumud some of the neighbours rushed there and found the appellant at the entrance of Kumud s house. On their inquiring as to what the matter was, some of the persons who had accompanied the appellant beat three of the neighbours. After the appellant and his associates left, the neighbours found Madhusudan bleeding profusely near the entrance. They removed him in an inner room, bandaged his wound and then sent for an ambulance car. But before it could arrive Madhusudan succumbed to his injury and expired at about 12.15 p.m.

4. On these allegations the appellant and ten others were respectively charged under S. 304 and S. 304 read with S. 149 of the Penal Code. Three of them were also charged under S. 323 individually for causing injuries to those neighbours. The defence was that at the relevant time the appellant was not in his house and that owing to the hostility between him and the said Kumud, the latter accompanied by his brother, the said Madhusudan and some others attacked the appellant s house with brickbats and stones where labourers engaged by the appellant were working. Some of these labourers were santhal adivasis and one of them shot an arrow which struck Madhusudan s left thigh resulting in the said fatal injury. In support of this theory reliance was placed by the defence on the discovery by the investigating officer of a few brickbats lying outside the appellant s house as also upon an answer given by the Doctor, who performed the post mortem examination on Madhusudan s dead body, that the injury on Madhusudan could also be caused by an arrow.

5. The defence theory based on these two matters was rejected by the trial Judge who, accepting the prosecution case, convicted the appellant under S. 326 and eight other accused persons under S. 326 read with S. 149, of the Penal Code. Six of these eight persons were also convicted under section 323. Two of the appellant s alleged associates were acquitted. On an appeal to the High Court by the appellant and the other eight accused persons convicted as aforesaid, the High Court accepted the evidence of Kumud and the neighbours, namely P. Ws. 3, 9, 10 and 12, and particularly of the last three, whose presence could not be questioned as each of them on being examined at the neighbouring Health Centre was found to have injuries. The evidence of P. W. 3, who had no injury was also accepted as he was the next door neighbour and therefore, a natural witness. That evidence was that he had seen the appellant with a blood-stained kencha in his hand near the front door of Kumud immediately after the incident along with some of his associates. Acceptance of evidence of those witnesses obviously negatived the defence version that the incident took place not at the entrance of Kumud s house but outside the appellant s house, and that the injury on Madhusudan was caused by an arrow shot by one of the santhal workers of the appellant when Kumud and hi