Judgment

FATHIMA BEEVI, J.:- The appellant Pradumansinh Kalubha, along with others was tried for the murder of the Keshav Uka on 12-2-1978 and acquitted by the Trial Judge. On appeal by the State, the High Court of Gujarat convicted the appellant for the offence under Section 304, Part II of the Indian Penal Code and sentenced him to undergo imprisonment for a term of five years. The appeal by special leave is directed against such conviction and sentence.

2. The occurrence happened at about 6.00 p.m. in Piplawala Chowk just in front of a shop. The prosecution case briefly stated is this: Keshav Uka was a Harijan painter residing in a Harijan Colony to the north of the Chowk. The Durbars of the village had strained relationship with Harijaris and there had been tension since the last six months prior to the occurrence on account of the boycott by the Harijans of the cinema theatre owned by Anopsinh, brother of the appellant. The deceased along with two others was on his way to get brush and Datan. While he had been turning towards the entrance, he unwittingly brushed with the appellant, who had been passing along with the other two accused. Infuriated by the collision, the appellant scolded the deceased, drew out his knife and dealt a blow on his chest. The other two accused dealt blows on the companions of the deceased and caused injuries. They slipped away from the place while the deceased fell down with bleeding injury. He was immediately rushed to the hospital and thereafter to the Nursing Home of Dr. Thakkar where Gayatri Devl gave some first aid. Keshav Uka was removed to the Government Hospital, Rajkot. He succumbed to the injuries on the way.

3. The crime was registered against the accused persons on recording the statement of Jivabhai who was on the spot along with Purshottam. The injured persons also arrived at the Police Station while the statement was being recorded. The crime originally registered for the offence under Section 307 was altered to Section 302. After investigation the three persons were chargesheeted.

4. Jivabhai and Purshottam Khanabhai, both Harijans, claimed that they were near the scene when the occurrence happened. Besides these two witnesses, the two injured also narrated the incident. The medical evidence disclosed that the deceased had an incised wound while the two witnesses had suffered minor injuries. The prosecution adduced evidence to prove the relationship between the two factions and details of the investigation.

5. The defence plea was that the incident did not happen in the manner in which it had been stated. The appellant was not involved. There was a collision between the cyclists at the south-eastern side of the Chowk followed by a commotion in the course of which injuries had been sustained by Keshav Uka. The defence evidence was also adduced.

6. The learned Sessions Judge rejected the prosecution case, considered the defence version more probable and acquitted the accused persons. Reversing the judgment and the order of the Trial Court the High Court re-examined entire evidence and arrived at the conclusion that the account given by the eye-witnesses is true and that the reasons given by the Trial Court for rejecting the same are not sustainable.

7. The High Court was, however, of the view that the act would amount only to an offence under Section 304, Part II as it cannot be said that the appellant had any intention to cause death or such bodily injury as he knew to be sufficient to cause death, but caused injury which was likely to cause death.

8. The learned counsel for the appellant in challenging the conviction and sentence maintained that the High Court had disregarded the principles for dealing with an appeal against an order of acquittal. When the trial court had given the cogent reasons for its findings and the view taken by the trial Court was reasonable and plausible, the High Court should not have upset the finding and recorded the conviction. It was pointed out that the Hi