Judgment-

FATHIMA BEEVI.

( 1 ) KHANJAN Pal, the appellant, was convicted by the High court for the offence punishable under S. 302, Indian Penal Code and sentenced to undergo imprisonment for life, in reversal of the order of acquittal passed by the Sessions Judge, Agra. The brief facts of the case are as under: the appellant, Khanjan Pal, and the deceased, Deep Singh, were working in the bangles welding factory of Data Ram in mohalla Rajputana, Thana Firozabad. The prosecution case was that while working in the factory at about 2. 30 p. m. on 8/04/1972, the appellant said tothe deceased that he had illicit relationship with one Tara. Deep Singh said that he considered Tara to be his sister. The altercation ensued between the appellant and the deceased and in the course of the altercation, the appellant stabbed the deceased with a knife and this incident was witnessed by Public Witness 2, Ram Pratap Singh, and Public Witness 4, Maharaj Singh besides Umrao Singh, Public Witness l. The injury sustained by the deceased was a punctured wound penetrating into the chest cavity. The occurrence was reported at the police station by Umrao Singh, father of the deceased at 3 p. m. , the same day. In the course of the investigation, blood-stained shirt was seized from the appellant and sent for chemical examination. The certificate was to the effect that it was stained with human blood.

( 2 ) THE trial court acquitted the appellant discarding the testimony of the eye-witnesses mainly for the reasons that the occurrence could not have happened at the alleged time and place as the place of occurrence was not mentioned in the first information report, the post-mortem report referred to the presence of undigested food in the abdomen of the deceased, the presence of Umrao Singh Public Witness 1, Ram Pratap Singh (PW 2, and Maharaj Singh (Public Witness 4 was doubtful in the light of the conduct of pw 3, Data Ram and that since the attendance register was not produced, it was doubtful whether the factory was opened on that day or not. The appellant was therefore given the benefit of doubt by the trial court.

( 3 ) THE High court on a careful analysis of the entire evidence dislodged the finding of the trial court, accepted the testimony of Public Witness 2 and pw 4 and concluded that the prosecution had established the charge against the appellant. We have been taken through the judgments and the relevant records of the case. We are satisfied that the High court had interfered with the order of acquittal for cogent reasons and that the conclusion of the High court that the appellant has caused the death of the deceased, Deep Singh, by stabbing with a knife in the manner alleged by the prosecution is unassailable. The approach by the trial court was clearly wrong and the finding is perverse. The testimony of the two independent eye-witnesses had not been properly appreciated. Their presence at the scene could not at all be doubted in the light of what Public Witness 3 has deposed. They are probable witnesses and there had not been any infirmity in their evidence as rightly pointed out by the High court. The evidence of Public Witness l, rejected by the trial court was also not accepted by the High court. The reasoning adopted by the trial court, in our opinion, was so perverse that the High court was justified in upsetting the finding and arriving at an independent conclusion which is fully supported by the evidence on record. We do not, therefore, see any merit in the contention advanced on behalf of the appellant that the conviction is wrong.

( 4 ) WE, however, agree with the learned counsel for the appellant that on the basis of the facts proved, the offence is not murder punishable under S. 302, Indian Penal Code and that the act of the appellant as provedwould fall only under S. 304 Part II, IPC. The appellant had in statement under S. 313, Criminal Procedure Code admitted that there had been an a altercation between the two and the decease