Judgement

Appeal (No. 49 of 1928) by special leave from an order of the High Court (October 31, 1927) on proceedings in revision whereby the conviction of the appellant by the Sessions Court of the offence of culpable homicide not amounting to murder (under s. 304 of the Indian Penal Code) was altered to a conviction of the offence of murder (under s. 302), and the sentence of five years rigorous imprisonment was altered to a sentence of death.

The facts and the material provisions of the Code of Criminal Procedure appear from the judgment of the Judicial Committee.

1928. June 12. Wallach for the appellant, The High Court had no jurisdiction to make the order appealed from. First, because the appellant had in effect been acquitted of the charge of murder, and by s. 439, sub-s. 4, of the Code of Criminal Procedure the High Court could not convert that finding into one of conviction Emperor v. Sheo Darshan Singh. (1) Secondly, because the Local Government could have appealed under s. 417 of the Code, and s. 439, sub-s. 5, consequently prevented any proceedings by way of revision from being entertained.

Dunne K.C. and Kenworthy Brown for the respondent. Sect. 439, sub-s. 4, applies only where there has been a complete acquittal, otherwise the powers of the High Court on. revision would be much cut down In re Bali Reddi. (I. L. R. 37 M. 119.) It is submitted that the view taken in Emperor v. Sheo Darshan Singh (I. L. R. 44 A. 332.) and Emperor v. Shivputraya (I. L. R. 48 B. 510.) was erroneous. It is not material that there was no appeal, because under s. 439 the High Court had jurisdiction of its own motion to exercise all the powers given to a Court of Appeal. But even if the High Court had no jurisdiction to make the order there has been no failure of justice, since upon an appeal the same results would have followed, and at the date of the revision proceedings the time for appealing had not expired. Consequently the present matter does not fall within the limited class of cases in which the Judicial Committee will interfere in criminal proceedings. The High Court in any event had jurisdiction to enhance the sentence, the maximum punishment under s. 304 of the Penal Code being transportation for life. If therefore the Board consider that the order cannot stand, it is submitted that the case should be remitted to the High Court, as in Sayyapureddi v. The King-Emperor. (( 1920) L. R. 48 I. A. 35.) Wallach replied.

July 2. The judgment of their Lordships was delivered by

SIR LANCELOT SANDERSON. By His Majestys Order in Council dated March 22, 1928, special leave to appeal against a judgment of the High Court of Judicature at Allahabad, dated October 31, 1927, was granted to the appellant.

On June 18, 1927, the appellant, Kishan Singh, was charged by a Magistrate of the First Class as follows " That you on or about the 20th day of March, 1927, at Bharthwa did commit murder by intentionally causing the death of Kuber Singh and Shoran Singh and thereby committed an offence punishable under s. 302 of the Indian Penal Code, and within the cognizance of the Court of Session. And I hereby direct that you be tried by the said court on the said charge."

He was tried on the said charge by the Additional Sessions Judge of Aligarh, with the aid of four assessors, and on July 31, 1927, the learned judge delivered his judgment. He recited the finding of the assessors as follows " All the assessors are unanimously of the opinion that the accused was guilty under s. 304, Indian Penal Code, and in their opinion the story about the rath was a false one and the accused had shot down Kuber Singh as he had seen him cohabiting with his own wife. They were also of opinion that both Shoran Singh and Kuber Singh were shot by Kishan Singh with his gun and the gandasa story was a got-up one and the gandasa was never used by the accused in order to kill Shoran Singh. They were also of the opinion that in the struggle which ensued between Kishan Singh and Sho