Judgement

OZA, J. :- This appeal arises out of conviction of the appellant under S. 302, I.P.C. and sentence of imprisonment for life awarded by the High Court of Allahabad in an appeal against acquittal preferred by the State against the acquittal of the appellant from the charge under S. 302 by Sessions Judge, Kumaon.

2. The facts necessary for this appeal are that on 7th November 1970 at 4.15 p.m. Narendra Singh, respondent, inflicted injuries with his Kripan on Govind Singh on the Ranikhet Road in front of the shop of Govind Singh Mystri in Ramnagar town. Shri Phool Chand Sinha, Vice President of the Ram Nagar Municipal Board was at that time checking the thelas, seeing the incident ran towards appellant Narendra Singh and succeeded in recovering the weapon of assault i.e. Kripan from him. He also caught hold of the head of Narendra Singh but could not succeed in apprehending him as his turban remained in the hand of Shri Sinha and Narendra Singh escaped.

3. Pratap Singh, P.W. 6, Ishwar Datt, P.W. 7 and some other persons also witnessed the assault. Govind Singh after receiving injuries ran from the scene but fell down at a short distance in front of the tea shop of Permanand Pandey, P.W.4. Govind Singh was carried on a thela to the hospital where Dr. Harish Chand Pant, P.W. 2 examined the injuries of Govind Singh at 4.30 p.m. and prepared an injury report. 15 minutes later, Govind Singh who was unconscious, died.

4. Phool Chand Sinha, P.W. 1 went to the Police Station Ram Nagar and lodged a report about the incident. Head Constable Om Pratap Singh recorded the report and registered a case against Sardar Narendra Singh at 4.50 p.m. The Police Station was at a distance of about one furlong from the scene of occurrence. The Kripan and the turban of the assailant were also deposited at the Police Station by Phool Chand Sinha. Sub-Inspector Shri T. N. Rawat, P.W. 10 was present at the Police Station took up the investigation and went to the hospital. After investigation, a charge-sheet was filed. On trial the learned Sessions Judge acquitted the appellant discarding the testimony of eye-witnesses on the basis of minor discrepancies in details and on imaginary considerations.

5. Against this order of acquittal recorded by the learned Sessions Judge, the State preferred an appeal and the High Court after considering the reasons on the basis of which the direct testimony was discarded by the learned Sessions Judge found those reasons to be not only inadequate but not appropriate and consequently reassessed the evidence and came to the conclusion that the testimony of eye-witnesses is such which could not be discarded, convicted the appellant and sentenced him as mentioned above. It is how this appeal is before us.

6. Learned counsel appearing for the appellant contended that the learned Sessions Judge after scrutinising the evidence came to the conclusion that the evidence was not sufficient to establish the offence against the appellant whereas the learned Judges of the High Court after re-appreciating the evidence came to a contrary conclusion. It was contended that if on the evidence two opinions are possible merely on that ground the acquittal recorded in favour of the appellant could not have been set aside by the High Court.

7. It was also contended that the reasons stated by the learned Sessions Judge while discarding the testimony of eye-witnesses were good reasons and therefore the view taken by the High Court does not appear to be correct. Lastly, it was contended that even if the evidence is accepted yet it is silent about the manner in which the incident began, the possibility that there was some hot exchange between the parties and in the heat of passion the injuries were inflicted on the person of the deceased, consequently at best the appellant could be convicted for an offence under S. 304, Part I and not for an offence under S. 302, I.P.C.

8. The learned Judges of the High Court considered the reasons on the basis of wh