Judgment

GUPTA, J.:- This appeal preferred by the State of Andhra Pradesh is directed against a judgment of the Andhra Pradesh High Court by which a learned Judge of that Court exercising jurisdiction under Section 429 of the Code of Criminal Procedure, 1898 set aside the order of conviction and the sentences passed on the respondents before us by the Sessions Judge, Chittoor Division. The charge against the respondents was that at about ten on the night of September 5, 1971 Venkataramaiah Chetty and Chakala Giddappa (P. W. 1) were returning to their village Sanganapalle from Kadepalle where they had gone and when they were about a mile from Sanganapalle respondent No. 1 armed with a bill-hook and respondent No. 2 with a stout stick attacked them and beat Venkataramaiah Chetty severely causing multiple injuries as a result of which he died. The Sessions Judge accepted the evidence of P. W. 1 and the dying declaration, said to have been made by Venkataramaiah Chetty in the presence of several witnesses including P. W. 1 and convicted the respondents under Section 302 read with Section 34 of the Indian Penal Code and sentenced each of them to undergo imprisonment for life. On appeal preferred by the accused a Division Bench of the High Court rejected the dying declaration but accepted the evidence of P. W. 1 to find that the accused caused the injuries to which Venkataramaiah chatty succumbed: the learned Judges composing the Division Bench however differed on the nature of the offence that was committed by the accused in causing these injuries. Madhava Reddy J. held that having regard to the nature of the injuries it was not possible to find that the accused intended to cause death and that the offence committed by the accused was culpable homicide not amounting to murder punishable under Section 304 Part I of the Indian Penal Code. Sriramulu J. was of the opinion that in causing the injuries the accused had the common intention to kill Venkataramaiah Chetty. He also observed that even assuming the offence did not fall under clause "Firstly" of Section 302 of the Indian Penal Code, it undoubtedly fell under clause "Thirdly" of that section and on this view reached the conclusion that the Sessions Judge was justified in convicting the accused persons under Section 302 read with Section 34 of the Indian Penal Code. The case was then referred to a third Judge, Ramchandra Raju, J., under Section 429 of the Code of Criminal Procedure, 1898, Raju J. found on a consideration of the evidence that "there does not appear to be any motive, much less sufficient motive, for the accused to commit the offence". The immediate motive for the offence according to the prosecution was an incident said to have taken place on September 1, 1971, four days prior to the date of occurrence, when P. W. 5, a son of the deceased, was beaten by the accused when cattle of the deceased strayed into the field of the first respondent. According to Raju J. what happened on September 1, was a trivial incident, P. W. 5 did not sustain any injury, he did not report the matter to any one and even when the deceased came and intervened there was no quarrel, the accused did not try to assault the deceased nor the deceased tried to beat the accused. Pointing out certain infirmities in the evidence of the sole eye-witness P. W. 1, Raju J. found that his evidence was "doubtful and suspicious". P. W. 7 who sought to corroborate a part of the evidence of P. W. 1, according to Raju J. did not "inspire much confidence". Raju J. did not think it safe to find the accused guilty by placing absolute reliance on the evidence of P. W. 1 and accordingly he acquitted both the accused.

2. Before us Mr. P. Rama Reddy for the State of Andhra Pradesh con tends that it was not open to the third Judge to upset the concurrent finding of both the learned Judges composing the Division Bench that the accused were guilty of some offence; it is argued that as the difference between the two Judges