Sharma, J.—This appeal has been filed by Kamalsingh who has been convicted by the learned Sessions Judge, Bharatpur, under sec. 304-11 I.P.C. and sentenced to seven years rigorous imprisonment.

2. The prosecution case is that on the 18th July, 1953 sometime in the evening, the appellant Kamalsingh and his brother Poorna laid a charge against Mst. Shyamo, the mother of Kanchan (hereinafter to be referred to as the deceased) ana one Mst. Somoti, that they had stolen a lota belonging to them. The two women denied the charge, on which they were taken before Mst Sufedi. Jawali, the brother of the deceased also accompanied them. Mst. Sufedi denied having said anything to the appellant and his brother about the theft of the lota. When the party was returning from the house of Sufedi, there was verbal altercation between Mst. Somoti on one side and the mother of the appellant on the other. In the midst of this altercation, the appellant gave a shoe beating to Mst. Somoti and when Jawali intervened, he was also beaten. Jawali raised an alarm, on which many persons including the deceased came to the spot. The appellant picked up a pati which was lying nearby and gave a blow with it on the head of the deceased who fell down. The deceased was taken to the hospital at Bharatpur, where he died at about 4 A. M. The first information report of the incident was made at Sewar Police Station at about 9 A.M. on the 19th of July, 1953. The Police arrested the appellant and his brother Poorna and recovered a pati, Ex. 1, and some blood stained earth and bandi of the deceased which were sent for chemical examination.

3 After investigation, the case was cha-llaned in the court of the City Magistrate, Bharatpur who discharged Poorna, but committed the appellant to take his trial under sec. 304-II of the India Penal Code.

4. The accused denied the charge and pleaded that the case was an outcome of enmity. Six direct witnesses for the occurrence were produced by the prosecution, The learned Sessions Judge found that the appellant was guilty of culpable homicide not amounting to murder under sec. 304 II of the Indian Penal Code and consequently, convicted and sentenced him as above. Against this Judgment of the learned Sessions Judge, the appellant has come in appeal to this Court.

5. It was argued by Mr. M M. Tiwari on behalf of the appellant that some of the witnesses mentioned in the first information report were not examined by the prosecution. He pointed out two such witnesses namely Kirori and Kishani. He further argued that the names of the prosecution witnesses Pati and Ratansingh were not mentioned in the prosecution report but they were examined by the prosecution which creates a doubt as to their presence at the time of the occurrence. It was further argued that it comes in defence evidence that the deceased was suffering from epilepsy fits and on account of" this he received an injury by falling down upon some stones which were lying on the ground. It is suggested that probably the deceased had one of these fits at that time and consequently fell down. It was further argued that Mst. Sufedi and Mst. Shyamo were important witnesses and they were not produced. Learned counsel also argued that it is in the evidence of Ratansingh P. W. 3 that the deceased had a dhoti on his head at the time of the incident and it is improbable that under such circumstances, the external injury on the head as found by the medical examiner, could be caused Learned counsel referred to a ruling of their Lordships of the Supreme Court in the case of Habeeb Mohammad vs. State of Hyderabad(I), in order to support his argument that if material witness is not produced by the prosecution, strong presumption should be made in favour of the defence and against the prosecution Lastly, it was argued that at any rate the sentence is severe. 6. On behalf of the State it has been argued by Mr. R. A. Gupta that there were as many as six eye witness in this case who have all unanimousl

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