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 on