( 1 ) THIS is an application by the State of U. P. under Article 134 (1) (c) of the Constitution of india for a certificate of fitness for appeal to the Supreme Court. It arises out of Criminal Appeal no. 2069 of 1959 of this Court connected with which was Referred No. 133 of 1959, decided by us on 8-1-1960. The appeal was by the opposite-parties against their conviction and sentence for rioting under Section 147 I. P. C. and for the murder of one Babu Deepchand a practising mukhtar of Sodabad in the district of Mathura under Section 302 with the aid of Section 149/34, i. P. C. The reference was made by the Sessions Judge for the confirmation of the death sentence of Tula Ram and Bhag wan.

( 2 ) THE circumstances relating to the murder, and the evidence bearing upon the alleged crime of the accused, were dealt with by us in our judgment of 8-1-1960 and need no re-statement for the disposal of this application. That Babu Deepchand had been murdered admitted of no doubt. The question was whether the murder was committed by the opposite-parties Tula Ram and Bhagwan singh, Chandravir Singh, Shyamvir Singh, Yogvir Singh and Rajpal. The learned Sessions Judge relied upon the evidence of three witnesses Brij Lal, Saheb Singh and Bahori Teli in coming to the conclusion that all these six accused were the perpetrators of the crime. These three witnesses implicated the six accused inclusive of Yogvir Singh equally in the crime and they assigned particular role having been played by them. The accused denied their guilt and pleaded that they had been falsely implicated. Yogvir Singh raised a plea of alibi, and he produced a volume of evidence in support of that plea. The learned Sessions Judge rejected the evidence of alibi. When we heard the appeal we went into the evidence with care with the assistance of learn- ed counsel for the parties and we came to the conclusion that the evidence of alibi was wrongly rejected and that that evidence was so complete and reliable that the participation of Yogvir Singh in the crime was a matter of impossibility. We also came to the conclusion that the eye-witnesses were not witnesses of truth and we observed :

"in a case of this nature where Brij Lal, Saheb Singh and Bahori Teli witnesses are demonstrably false witnesses with regard to Yogvir Singh we would not be justified in accepting their evidence with proper measure of confidence with respect to the others. Undoubtedly there is nothing, to distinguish their evidence in the case of Yogvir Singh from the case of the others. It would be extremely unsafe to rely upon their evidence. "

( 3 ) IN that view of the matter we acquitted all the accused.

( 4 ) A preliminary objection has been taken be-fore us by the other side, namely, that Article 134 of the Constitution cannot be availed of by the State; and reliance has been placed upon a decision of the Supreme Court in State Govt. M. P. v. Ram-krishna, AIR 1954 SC 20. tn that case it was observed that Article 134 does not provide for an appeal from a judgment, final order or sentence in a criminal proceeding of a High Court, if the High Court has on appeal reversed an order of conviction of an accused person and has ordered his acquittal, and that, in other words, there is no provision in the Constitution corresponding to Section 417, Cr. P. C. and such an order is final, subject, however, to the over-riding powers vested in the Supreme Court by article 136 of the Constitution. 4a. That decision was subsequently noticed by the Supreme Court in State of Madras v. Gurviah naidu and Co. , Ltd. , (S) AIR 1956 SC 158. In that case it was contended before the Supreme court that the appeal was not maintainable as the High Court had no jurisdiction to grant a certificate ot fitness for appeal against acquittal under Article 134 in view of the earlier decision of the Supreme Court referred to above. The Supreme Court, in effect, doubted the earlier decision and observed that the earlier decision was a decision by

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