JUDGMENT

BEG, J.:—The appellant before us was acquitted by the Additional Sessions Judge of Kolhapur of the charge of murder. The State of Maharashtra had, however, succeeded in its appeal to the High Court. Consequently, the appellant was convicted under Section 302, Indian Penal Code and sentenced to life imprisonment. The High Court also convicted him under Section 25 (1) (a) of the Arms Act and sentenced him to one year s rigorous imprisonment, the sentences running concurrently. The question before us is whether the Trial Court s judgment and order of acquittal of the appellant was reasonably capable of being sustained so that, if two views were fairly open, the High Court ought not to have interfered.

2. The prosecution case was that the appellant had, at about 4 p.m. on 31-10-1966, committed the murder of Dattu Rama Patil in village Khochi by shooting him with a gun with the intention of killing him. The Trial Court had considered the medical evidence in the case to be decisive. It referred to the post-mortem report which said:

"17. Surface wounds and injuries:- Their nature, position, dimensions (measured) and directions to be accurately stated - their probable age and causes to be noted.

Surface wounds and injuries on the dead body of Shri Dattu Rama Patil.

(1) Linear lacerated wound 6" x 31/2"x brain deep on the right side headback and outer part 2" above the right ear.

(2) Oblique lacerated would 2" x 1" x1" on the right side arm inner and middle 1/3rd.

(3) Lacerated wound 1 1/2" x 1" x deep from front to back side of the right forearm middle. The back side injury was 2" x 1/2".

4) Lacerated wound 1.1/4" x 1" x 1.1/4" on the right side mid-axillary line 3" from right axilla.

(5) Lacerated wound 1/2" x 1/2" deep up to intestine on the right side 558 abdomen lower and outer part 5" from mid-line abdomen intestine was coming out of the wound.

(6) Lacerated wound 1/4" x 1/4" deep up to intestine on the left mid-axillary line 9" from the left axilla. The intestine was coming out of the wound.

(7) Lacerated wound 1" x 1/2" on the right side back upper 1 1/2" from mid-line back.

(8) Lacerated wound 1 1/2" x 1/4" x 1/2" on right side back outer just below right shoulder blade.

(9) Lacerated wound 1/4" x 1/2" x skin deep on the right side heel upper and outer part.

The above injuries were caused by gun shot except injury Nos. 7 and 9. They were caused by hard and blunt substance. The injuries were about 22 to 24 hours old".

3. This examination took place on 1/11/1966 at 3.45 p.m. The occurrence was said to have taken place at about 4 p.m. in a tobacco field adjoining another field belonging to the deceased and his brother Tatoba, PW 2 in which Jowar crop was standing. As soon as two gun shots were fired Tatoba got up and rushed into the field in which his brother Dattu Rama Patil was harrowing and preparing the field for a tobacco crop. There he saw the appellant, standing with a gun in his hand, after having shot at his brother. As he tried to advance further, the appellant threatened to kill him if he came nearer. After firing two more gun shots at the deceased from a distance of about 15 it, the appellant is said to have run away. A. D. Patil, PW 3, A. S. Ingale, PW 4, Y. R. Naik PW 5 were alleged have seen the occurrence from their respective fields nearby. Ingale PW 4, A. D. Patil, PW3, Y. R. Naik, PW 5, are said to have come to the place of occurrence after the appellant had left. But, this does not necessarily mean that they could not have seen the occurrence from their own fields.

4. It is also true that A. D. Patil PW 3, was declared hostile as he stated that he could not see from his field what was happening because of an intervening road and hedges in between his field and those in which the deceased was found dead, lying in a pool of blood, after he had heard four gun shots fired. He also stated that there were some women working in that field. He was cross- examined and confronted with his statements before the police giving a