( 1 ) APPELLANT Govind Natha has been convicted by the learned Sessions Judge Kutch at Bhuj for the offence under section 304 Part I Indian Penal Code and sentenced to suffer rigorous imprisonment for five years and for the offence under section 21 Indian Arms Act and sentenced to suffer rigorous imprisonment for three months. The learned Judge has ordered both the sentences to run concurrently.

( 2 ) THE first charge against the appellant was that on or about 3-10-1959 at about 5-00 P. M. he committed the murder of one Aher Suthar Punja Mahisur at his i e. appellants shop in the village Mirzapur Taluka Bhuj District Kutch. The second charge against the appellant was that in contravention of a licence to possess 12 cartridges at a time the appellant possessed on the aforesaid date and time 30 cartridges.

( 3 ) A majority of the facts on which the prosecution has relied to establish the two charges against the appellant has been admitted by the appellant and those facts have not been challenged before us by Mr. Bhragu Shastri learned Advocate for the appellant. We shall first of all briefly mention those undisputed facts.

( 4 ) THE appellant conducts a grocery shop in the village Mirzapur. That shop is situated at one of the corners of a place where four roads meet The shop faces north and measures 12 x 12. To wards the west of the shop there was a small desk which was used by the appellate as a counter and the appellant used to sit on a cushion spread near that counter. On 3 deceased Punja had come to the shop of the appellant for purchasing a match-box and Bidis. The deceased was a carpenter by profession and belonged to the said village Mirzapur. The appellant gave a match-box and Bidis to Punja and accepted their price. At this time witnesses Mohanlal and Meghji were present at the shop Mohanlal had come there for purchasing sugar and Meghji had come at the shop to call Mohanlal back because one of Mohanlals relatives was ailing. After the match-box and the Bidis had been sold the appellant demanded the arrears of his dues from Punja. It appears from the account-book of the appellant that Punja was indebted to him at the date of the offence to the tune of about Rs. 100. 00. This demand of previous dues in the presence of other customers was resented by Punja and as soon as the demand was made Punja picked up a weight which was lying in the shop and threw it against the appellant. Fortunately appellant quickly stood up and parried the throw and no injury was caused to the appellant: There is the prosecution evidence to show that after appellant had stood up on the Thada of the shop Punja caught hold of appellants testicles. This is deposed to by witness Mohanlal and Meghji examined on behalf of the prosecution. This part of their testimony has not been accepted by the learned Judges Then according to the prosecution certain acts were committed by the appellate as a result of which Punja died on the spot. This part of the prosecution case is disputed by the appellant and we shall mention that part just in a moment. Then it is common ground that after some time appellant left his shop on a motor cycle and went to Bhuj in search of witness Vaghji who appears to be a leader of the village. On the way appellant met his servant Pramji and asked him to go to the shop and keep a watch there by sitting outside the shop during his absence. The appellant met with an accident on the way and fell down from his motor-cycle and as a result his knees were injured. Then the appellant borrowed a bicycle from one Naran Jiva and exchanged that bicycle for another bicycle from one Shamji Nanji and ultimately he reached Bhuj on that bicycle but he learnt that Vaghji was not in Bhuj but he was at Madhapur an adjoining village. Thereupon the appellant engaged a taxi car of one Hussain and went to Vaghjibhai and told him that he should accompany him to Mirzapur. Thereafter the appellant and Vaghji came to Mirzapur and when Vaghjibha