Judgment

KHANNA, J.:- Samson Hyam Kemkar (35) was tried in the court of the learned Additional Sessions Judge Greater Bombay for an offence under Section 302, Indian Penal Code for causing the death of Lalta Prasad (30) and was acquitted. On appeal filed by the State of Maharashtra, the Bombay High Court reversed the judgment of acquittal and convicted. Samson under Section 302, Indian Penal Code and sentenced him to undergo imprisonment for life. Samson thereafter came up in appeal to this Court by special leave.

2. The prosecution case is that the accused was inimical to Lalta Prasad deceased. The accused used to do illicit liquor business and suspected that information regarding the said illicit business was conveyed to the police by Lalta Prasad deceased. On August 1, 1966, at about 12 noon, it is stated Lalta Prasad deceased was present near the pan shop of Rammurat Tewari in Gondivali in Greater Bombay, for purchasing a pan. Rammurat Tewari was standing close to his shop, while his ten-year-old son Umakant was sitting on the gaddi. Baijnath Baghelu P. W., who owns a hair-cutting saloon in the premises adjoining the pan shop of Rammurat was present on a wooden platform in front of his saloon. Bhiku Shankar and George Enus Almeda P. Ws. were also present there as they wanted to purchase pan from the shop of Rammurat. The accused is then stated to have come there armed with an iron axe. On arrival, the accused gave a blow with that axe on the head of Lalta Prasad. The accused thereafter ran away. While he was running with the bloodstained axe in his hand, he was seen by Smt. Balubai, P. W.

3. Bhiku P. W. immediately went to police station Andheri and lodged report Ex. 6 there at 12.25 p.m. Two police constables were then sent along with Bhiku P. W. in a van to the place of occurrence. Lalta Prasad was then put in that van and taken to the police station. From the police station, Lalta Prasad was sent to King Edward Medical Hospital. In the hospital, the injuries of Lalta Prasad were examined by Dr. Ravi Bapat. At 4 p.m. Sub Inspector Tawade went to the hospital and after obtaining the certificate of Dr. Bapat that Lalta Prasad was in a fit condition to make statement, recorded dying declaration Ex. 15-A of Lalta Prasad. In the aforesaid dying declaration, Lalta Prasad stated that he had been given a blow with an axe by the accused in the circumstances mentioned above.

4. At about 6 p.m. on the day of the occurrence Sub-Inspector Tawade went to the house of the accused. The accused was not found present there. Nothing incriminating was recovered as a result of the search of the house. Axe Ex. 7 was, however, recovered from a mori under a fowl cage at a distance of about 16 feet from the house of the accused.

Lalta Prasad died in the hospital on August 12, 1966.

The accused could not be arrested soon after the occurrence. On September 2, 1966 Head Constable Dinkar arrested the accused from a village at a distance of about one mile from Baroda.

5. At the trial, the accused denied the prosecution allegations about his having given any blow with an axe to Lalta Prasad deceased. According to the accused, he was served with an externment order on July 30, 1966. He thereafter left Bombay on July, 31, 1966 and went to Baroda where, according to the accused, he took up employment. Defence evidence consisting of the statements of three witnesses was produced on behalf of the accused on the point that he was away to Baroda on the day of the occurrence.

6. The trial court did not accept the prosecution evidence. The trial court also did not place any reliance upon the dying declaration of the deceased. It was further of the opinion that the defence evidence adduced on behalf of the accused was convincing. In the result, the accused was "given the benefit of the doubt and acquitted. On appeal, the learned Judges of the High Court held that the trial court had rejected the evidence of the eye-witnesses on grounds which were not tenable. The Hig