Kusta Balsu Kandnekar vs State

1. This appeal by the original accused is directed against the judgment dated 9th March, 1984, whereby he was convicted for an offence punishable under S. 304, Part II of the I.P.C. and subsequently sentenced to undergo four years' rigorous imprisonment by Dr. Eurico Santana da Silva, the learned Sessions Judge, Margao.

2. The relevant facts may be stated. A criminal case was instituted by the respondent charging the appellant of having committed murder of one Habib Khan, a resident of Devabhat, Kurpem. Broadly, the case of the prosecution is that on 30th March, 1983, at about 8 p.m. The appellant went to the courtyard of the deceased's house which is about 200 mtrs. away from his own and began to abuse him with bad words. Then, a fight with bare hands ensued between the deceased and the appellant, a circumstance that caused the wives of the deceased and of the appellant to rush to the spot. The appellant pushed his wife to the ground and, therefore, stabbed Habib Khan on his back just below the left shoulder-blade by thrusting a kitchen knife he had with him. As a result of this stabbing, Habib Khan collapsed on the spot and came to die within a few minutes. The fatal assault was committed, according to the prosecution, with the intention to cause death and, therefore, a case for an offence punishable under S. 302 of the I.P.C. was filed against the appellant.

3. The case of the appellant in the Court is one of complete denial, for he took a stand that he knew nothing about the stabbing of the late Habib Khan at the time he was arrested by the police and further that the complaint filed against him is false.

4. The learned Sessions Judge, however, considering the evidence adduced by the prosecution and in particular, the evidence of two eye-witnesses and the confessional statement of the appellant recorded under S. 164 of the Cr.P.C., arrived at a finding that the accused/appellant had on the said occasion stabbed the deceased on his back with a kitchen knife belonging to him and had thereby inflicted a serious injury which caused the death of Habib Khan and then, after observing that the weapon used, the nature of the injuries caused and the location thereof unmistakably show that "if he did not act with the intention of causing death at least, he intended to cause such bodily injuries as he knows to be likely to cause death or that it would be sufficient, in the ordinary course of nature, to cause death or that he had knowledge that the injuries were so imminently dangerous so as to cause death, in all probabilities the death of the victim", nonetheless, surprisingly held that, since the prosecution has failed to prove any motive, that the stabbing incident took place in the course of a hot discussion and that the accused was under the influence of liquor, he had not intended to cause the death of Habib Khan nor he had intended to inflict a wound that he knew to be likely to cause death and, therefore, his action or conduct was falling under the purview of a culpable homicide not amounting to murder punishable under S. 304, Part II of the I.P.C. Then, after hearing the appellant, the learned Sessions Judge sentenced him to undergo four years of rigorous imprisonment.

5. The appellant assails his conviction and consequent sentence on several grounds. He specifically urges that the impugned judgment is not based on the evidence on record, being contrary to the basic principles of criminal jurisprudence. Mr. S. M. Usgaonkar, the learned counsel appointed to represent the appellant under the Legal Aid Scheme, while elaborating the said grounds, has indeed contended that the impugned judgment is unsustainable and, therefore, bound to be set aside, for the learned Sessions Judge did not discuss properly the evidence, particularly, that of the witness Kesarbai and Petol, and as such, overlooked material contradictions which clearly turn their evidence unreliable and unworthy. He further submitted that the confessional statement of the appellant is to be discarded, for, though the learned Magistrate recorded it under S. 164 of the Cr.P.C. and took all the caution required by the law, the fact remains that the confession was made because the appellant was still afraid of the police. Such confession is worthless and cannot be relied upon for the purpose of supporting a conviction. Then, even if the said confessional statement can be considered, it was incumbent upon the Sessions Judge to take into account the whole confession and not only the aspects thereof which are unfavourable to the accused as held by the Supreme Court in Hanumant v. State of M.P. . The learned Judge, however, Mr. Usgaonkar further contended, wrongly relied only on the inculpatory portion of the confession and discarded the exculpatory part thereof. He also submitted that the learned Judge ought to have seen whether the confession was perfectly voluntary and, if so, whether it was true and trustworthy, as it was necessary. In this connection, reliance was placed on the decision of the Supreme Court in Shankaria v. State of Rajasthan, AIR 1978 SC 1248 : (1978 Cri LJ 1251). He also argued that the witnesses Kesarbai and Petol had shown a strong bias against the appellant and, therefore, their evidence could have been relied upon only after a careful scrutiny, as observed by the Supreme Court in Ram Ashrit v. State of Bihar . He, therefore, urged that, in the premises, the conviction of the appellant is not sustainable and the impugned judgment is, as such, liable to be set aside.

6. Mr. Usgaonkar is, undoubtedly, quite right in his submission that the impugned judgment is not happily written and that it suffers from serious infirmities, indicating in clear terms a very casual approach to the case, no proper application of mind to the problem and basic misconceptions of the relevant law. The appreciation of the evidence by the learned Sessions Judge is indeed far from satisfactory and from what is to be expected. In fact, on one hand, he had surprisingly relied upon facts which are not in the evidence, as correctly pointed out by the learned counsel, and on the other, has paid scant attention to the alleged contradictions dismissing them as being immaterial and irrelevant without even caring to state what are such contradictions. Then, the approach to the law applicable is so casual and deficient that it indicates non-application of mind. This cavalier manner in dealing with the problem before him by a Judge is, no doubt, highly irregular and is, therefore, strongly deprecated. A Judge is, while administering justice, duty-bound to decide the case judicially carefully applying his mind to it. This is so in all the cases. But this has a very special relevance in a criminal case where the liberty of an accused is, or for that matter his life may be, involved. As such, the slipshod manner in which the learned Sessions Judge dealt with the case is highly regretable. Nonetheless, as correctly contended by Mr. Bhobe, the learned Public Prosecutor, there is no reason for interference by this Court with the finding of the Sessions Judge that the appellant did cause the death of Habib Khan by thrusting a knife on his back just below the left shoulder-blade thereby causing him a serious injury to the left lung. Sufficient reason for interference, however, exists on different grounds, as I will presently show.

7. Though 23 witnesses were examined by the prosecution to prove its case, it is not necessary for me to advert to the evidence given by each of these witnesses, particularly to that of the panchas and the police officers involved in the investigation of the case, for the material evidence indeed lies in the statements of Kesarbai Gaonkar and Petol Kadnekar who allegedly witnessed the whole incident, of Dashrath and Vaijayanti Kadnekar who stated that they saw part of the incident though not the stabbing and of Sagun Madkar, Jivan Bandari and Jeaquim Pereira who reached the scene of the offence almost soon after the incident occurred, as well as in the medical evidence of Dr. Prakash Kudchodkar and Dr. Madhukar Usgaonkar and in the statement of the Magistrate who records the confessional statement of the accused an in the confession itself. It is to this that I will, therefore, turn.

8. Kesarbai Gaonkar is the widow of the deceased, Habib Khan. She stated that on the day of the incident at about 7.30 p.m. She was inside the house and the deceased was in the courtyard. She narrated that, at that time, there was a discussion with exchange of words between the accused and the deceased, and the wife of the accused, Petol, and his son and daughter, Dasharath and Vaijayanti, were present. The discussion went on for some time and, thereafter, she came out of the house. At that time, she saw the accused stabbing her husband with a knife on his back just below the left shoulder-blade. The knife was about 10 inches in length, and when he was stabbed, the deceased turned around and the witness held him in her hands. The deceased was trying to enter the house but he could not do so and he died within minutes. Soon after he stabbed the deceased, the accused ran away from the place and his wife, son and daughter also left the spot. She further stated that as a result of the stabbing, the deceased began to bleed profusely and her clothes were soaked with blood. She also stated that while the discussion was going on between the accused and the deceased, Petol attempted to intervene, but she was thrown to the ground by the accused. She shouted for help after the death of the deceased and some neighbours, namely, Costao, Jivan and Sagun, came to the spot. This evidence of the witness Kesarbai has to be accepted as true since not only she stood the test of cross-examination, being noteworthy that the accused himself suggested to her that he had been quarrelling with the deceased and in the course of such quarrel he and the deceased had been pushing each other. It is true that the learned counsel appearing for the appellant contended that the evidence given by Kesarbai is in variance with the version of the incident given by her in the complaint to the police. Undoubtedly, the version given by Kesarbai to the police is slightly divergent from the version of the incident given in the Court. However, in a careful and close scrutiny of the two versions, I find that both the versions are basically and substantially the same. In fact, in both the versions, Kesarbai has stated that she was inside her house and the deceased was in the courtyard when a discussion or a quarrel took place in the courtyard between the deceased and the appellant. Then, in both the versions, it is stated that when she was coming out she saw the deceased being stabbed on his back just below the left shoulder-blade by the accused with a knife and that as a result of this assault, the deceased bleeded profusely and collapsed to death within minutes. It is no doubt true that there are slight variations between the two versions, but such variations are not material being a result of a detailed and minute description of the incident in the complaint and of a more general account of the quarrel in the evidence given in the Court. However, as I have already said, both the versions are substantially the same and the differences are merely of details. But I may say that there is another divergence between the two versions which was construed by the learned counsel for the appellant as constituting a contradiction which vitiates the evidence of Kesarbai. The said divergence is to the effect that in the complaint, Kesarbai has stated that she rushed to her husband and after rescuing him and while she was taking him inside the house, the appellant took out a big kitchen knife and stabbed Habib Khan on his back just below the left shoulder-blade. In the statement before the Court, Kesarbai stated something which is slightly different, namely, that when she came out of the house, she saw the accused stabbing her husband with a knife on the left side of his back just below the shoulder-blade. She further stated that she immediately held the deceased in her hands and on such occasion, the deceased turned towards her. The learned counsel submitted that these are two basically different versions, for in the complaint Kesarbai stated that she had rescued her husband and only after that, the assault with the knife took place, whereas in the version in the Court she stated that the assault took place before her holding her husband. Apparently, this amounts to a contradiction, but considering that the witness has stated in the Court that soon after the assault took place she held the deceased in her hands, it is clear that everything passed in a fraction of a second and, therefore, what matters is that, in that particular moment when she came out of the house, the deceased was stabbed by the appellant. Whether he was stabbed after being held in her hands by the witness or before that is a small detail that does not vitiate the evidence. It constitutes a minor discrepancy which does not touch the essence of the evidence. Thus, this minor discrepancy cannot be construed as a contradiction and on that count, therefore, the evidence of Kesarbai cannot be discarded. In addition, it is also to be borne in mind that the evidence of Kesarbai is substantially corroborated, as I will presently show, by the evidence of Petol, Dasharath and Vaijayanti as well as by the evidence of Sagun and Jivan.

9. Petol is the next eye-witness. She is the wife of the accused. She stated that on the day of the incident, at about 8 p.m., the accused and the deceased were quarrelling and exchanging bad words. She went to intervene and to end such quarrel. But the appellant pushed her to the ground as a result of which she sustained minor injuries. She further stated that, at that time, the accused struck the deceased with a knife on his back and ran away from the place. She added that she had seen the knife in the hands of the accused when he pushed her to the ground and also that at the time of the incident, the wife of the deceased was present. Dasharath and Vaijayanti had come to the place of the incident when the quarrel was in progress between the accused and the deceased, but at the relevant time of stabbing, they had left the place. As a result of the stabbing, the deceased fell on the ground and died on the spot. About ten minutes after, she left the place and went to her house. After sometime one Balkrishna, one Sagun and one Jivan came to her place and she went with them to the police outpost at Vichundrem. In cross-examination, she stated that the quarrel initially consisted in an exchange of bad words and, thereafter, in a fight with bare hands. She further stated that there had been quarrels between her and her husband and these quarrels are similar to those that arise between many other couples. She identified the knife as belonging to her family. She also stated that she saw the stabbing while she was lying on the ground.

10. Dasharath and Vaijayanti are, respectively, the son and daughter of the accused. They stated in their evidence that while they were proceeding to a drama, they heard the sound of a quarrel going on between the deceased and the appellant, their father. They approached the accused and the deceased and after sometime, Dasharath intervened and asked his father, the appellant, as to why he was abusing the deceased on hearing this, the appellant got angry and attempted to assault Dasharath with a knife he had in his hands. However, due to the timely intervention of Vaijayanti, he missed Dasharath and, thereafter, Dasharath and Vaijayanti left the place. Dasharath went to sleep in the house of one Melu. Both Dasharath and Vaijayanti were duly cross-examined but their evidence was not even slightly shaken and, therefore, stands.

11. The learned counsel for the appellant, however, contended that the evidence of Petol and the witness Dasharath and Vaijayanti is to be discarded, since it is unbelievable. He submitted that it is against the normal human conduct that the wife and children of a person will come forward to depose against the husband and the father. In the present case, as the evidence shows, Petol went to the police to lodge a complaint and Dasharath and Vaijayanti deposed against the accused. The evidence of Petol also shows that the relations between the accused and the rest of the family were strained and it appears that the family of the accused was very keen to get rid of him. I am unable to accept these submissions of the learned counsel, for they not only are not supported by the evidence on record but also, to some extent, are disproved. I say so, because there is nothing on record to show that the relations between the appellant and his family were so bad as to motivate his family to falsely implicate him in a serious case like the present. Nothing was suggested in the cross-examination of Petol, Dasharath and Vaijayanti to that effect and the mere fact that Petol stated that she had quarrels with the appellant similar to those that arise between many other couples is not sufficient to hold that such quarrels were enough to cause Petol to give false statement against her husband. In addition, it is also to be pointed out that Petol did not proceed to the police station on her own, for as rightly pointed out by the learned public prosecutor, she was forced to do so by the witnesses Jivan and Sagun who came to her house immediately after the incident in search of the accused and, thereafter, on finding that the appellant was not at home, took Petol to the police station. This much is stated by Balkrishna, PW 14, who is one of the sons of the accused. Then, it is also relevant to note that Dasharath and Vaijayanti were on the spot when the discussion was going on and surprisingly, after that, they disappeared from the spot precisely when the second part of the incident, namely, the stabbing took place. This shows that Dasharath and Vaijayanti, being the son and daughter of the appellant, did not wish to depose against their father and give a damaging evidence in respect of the stabbing. These circumstances are sufficient to show that the evidence given by the said three witnesses is reliable and cannot be discarded. There is another piece of evidence which tends to corroborate to some extent the evidence of Petol. That piece of evidence is the statement given by Dr. Kudchodkar. In fact, this doctor stated that Petol was produced before him by the police and he found an injury on the right frontal aspect of the skull. This injury is consistent with the version given by Petol that the accused pushed her to the ground and thereby caused her minor injuries.

12. The evidence of the above four witnesses is further corroborated by the statements of the witnesses, Jivan, Sagun and Joaquim. In fact, the said witnesses stated that on hearing the shouts for help of Kesarbai, they proceeded to the house of the deceased and saw him bleeding from his back and dead. They stated that on account of what the said Kesarbai told them, they proceeded to the house of the accused in search of him and that on reaching the house of the accused they found that he was not at home. Only his wife Petol and his son Balkrishna were at home and they asked the said Petol and Balkrishna to accompany them to the police outpost at Vichundrem. This evidence clearly shows that Kesarbai has made a statement to them soon after the incident took place which caused the said witnesses to go in search of the accused and this to some extent goes to corroborate the evidence of the eye-witnesses.

13. I have already mentioned the evidence of Dr. Kudchodkar which partly corroborates the statements of Kesarbai and Petol inasmuch as they stated that the accused pushed to the ground his wife, Petol. Now, I will turn to the evidence of Dr. M. Usgaonkar. Dr. Usgaonkar stated that he performed the post-mortem on the dead body of the deceased. He described minutely the external as well as internal injuries sustained by the deceased and opined that the cause of death was due to sudden massive internal loss of blood as a consequence of stab injury to the left lung. He further stated that the knife, MO-1, could have caused the injuries observed by him on the body of the deceased. He also stated that the injury to the left lung with haemorrhage was a serious injury which caused the death of the deceased. Therefore, there is no manner of doubt that the death of Habib Khan was caused by the stab injuries sustained by him in that particular evening and time of the incident.

14. The above evidence is further strengthened by the confession that the appellant made and was recorded by the Chief Judicial Magistrate, Margao, Mr. Ratnam. In his confessional statement, the appellant stated that 30th April, 1983, in the evening, when he was out of his house doing his work as a labourer in the thrashing floor in the property of one Conceicao Mascarenhas, a quarrel took place between his wife and the deceased. At about 9 a.m. his wife came to the place where he was working and after informing him what had happened, sought his assistance. Thereupon, he along with his wife, Petol, started towards home and on reaching near the house of Habib Khan, Dasharath came and gave a slap to Petol causing her to fall down. Then she got up and Habib Khan came to the spot, caught hold of her and pushed her to the ground, and sat over Petol who was lying on the ground. Petol started to cry that she was dead and the appellant went to rescue her. In the meanwhile, Habib Khan continued to assault Petol by sitting over her and this annoyed and shocked the appellant who, therefore, gave a blow with a knife having about 9 inches in length to Habib Khan. He also stated that he did not remember where exactly the knife blow landed, particularly, on what part of Habib Khan's body. Then, he stated that after the said knife blow was given, the deceased Habib Khan ran away from the place and that he does not know what had happened thereafter. The learned counsel for the appellant argued that this confessional statement of the accused cannot be relied upon, because it does not satisfy the test laid down by the Supreme Court in Shankaria's case (1978 Cri LJ 1251) (Supra). He also contended that, in any event, the learned Judge ought to have been that, if at all, he was going to place reliance on such confession, he was bound to accept it as a whole without splitting the inculpatory portion from the exculpatory part as held by the Supreme Court in Hanumant's case (1953 Cri LJ 129) (Supra). He, however, in all fairness, admitted that the learned Chief Judicial Magistrate has taken all the caution as required and has given all the warnings under the law before recording the confessional statement of the appellant. But, according to the learned counsel, the said confession cannot be relied upon, because it is apparent that the appellant was still under the influence of the police and was afraid of suffering and consequences if he had not confessed. I am afraid that these submissions of the learned counsel are not well founded. In the first instance, I may say that, as rightly pointed out by Mr. Usgaonkar himself, the Chief Judicial Magistrate Mr. Ratnam, who recorded the evidence, has clearly taken great care before recording it in order to satisfy himself that the accused/appellant was voluntarily and freely willing to make the confessional statement. He gave all the legal warnings and on coming to know that the appellant had been beaten by the police, gave him two days for reflection and explained to the accused that he was not at all bound to make the confession. When the accused was produced before the learned Chief Judicial Magistrate on the expiry of the said two days for reflection, he once again questioned the appellant as to whether he was willing to give his statement voluntarily and freely. It was only after the appellant stated that he was willing to give the statement freely and without any inducement or any apprehension of any beating by the police that the learned Chief Judicial Magistrate proceeded to record his statement. It is relevant, in this connection, to advert to the specific question put by the Chief Judicial Magistrate to the accused as to whether the police has harassed him by giving any beating or by exercising coercion or undue influence in order to extract any statement of confession from him. To this question, the appellant answered :-

"The police have given me the beating. However, they did not induce me nor coerce me to extract any confession, but I feel that it was for that purpose the police have beaten me."

In the circumstances, therefore, when the learned Chief Judicial Magistrate gave all the legal warnings and time for reflection before the confession, I do not see any reason to discard the said confessional statement of the appellant only on the ground that the police had at one time beaten him. Then, insofar as the test laid down by the Supreme Court in Shankaria's case, it may be useful to say that the Supreme Court has observed in the said case that it is well settled that a confession, if voluntarily and truthfully made, is an efficacious proof of guilt and, therefore, when in a capital case the prosecution demands a conviction of the accused primarily on the basis of his confession recorded under S. 164, Cr.P.C. the Court must apply a double test, namely, (1) whether the confession was perfectly voluntary and (2) if so, whether it is true and trustworthy. The Supreme Court then added that satisfaction of the first test is a sine qua non for its admissibility in evidence and if the confession appears to the Court to have been caused by any inducement, threat or promise such as is mentioned in S. 24 of the Evidence Act, it must be excluded and rejected brevi manu. In such a case, the question of proceeding further to apply the second test does not arise and if the first test is satisfied, the Court must, before acting upon the confession, reach the finding that what is stated therein is true and reliable. The Court further observed that for judging the reliability of such a confession, or for that matter of any substantive piece of evidence, there is no rigid canon of universal application, and even so, one broad method which may be useful in most cases for evaluating a confession is to examine the confession and compare it with the rest of the evidence, in the light of the surrounding circumstances and probabilities of the case. Then, if on such examination and comparison, the confession appears to be probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances, it may be taken to have satisfied the second test. Applying the above observations of the Supreme Court to the case before me, I may first of all note that this is not a case where the prosecution rests only on the confessional statement for in addition, there is direct evidence of eye-witnesses. Secondly, as I have already observed, the confession has been given voluntarily and freely by the appellant and that it was so, the learned Chief Judicial Magistrate was fully satisfied. Thus, it is necessary to see whether the said confession is true and trustworthy and satisfies the second test laid down by the Supreme Court. Mr. Usgaonkar submitted that the version given by the accused/appellant for his stabbing the deceased is in complete variance with the version given by Kesarbai and Petol. It is no doubt true that the accused gave a version of the facts preceding his assault on the person of Habib Khan which is entirely different from the one given by Petol and Kesarbai. However, he does not deny that in the course of the incident, Petol fell on the ground and further, that he actually assaulted with a knife Habib Khan. The version given by him to explain and justify his stabbing of Habib Khan appears to have been advanced only to have something in his favour. This version is not sufficient to discard the said confession, especially because the essential facts of the incident and of the stabbing are confessed. In Hanumant's case, the Supreme Court observed that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him. An admission, the Supreme Court added, must be used either as a whole or not at all. In the present case, the admission of the appellant in his confession is only that he gave a blow on the deceased with a knife, about 9 inches in length. Now, as rightly pointed out by Mr. Bhobe, it is permissible to believe one part of a confessional statement and to disbelieve another, and it is enough that the whole of the confession is tendered in evidence so that it may be open to the Court to reject the exculpatory part and to take the inculpatory part into consideration if there is other evidence to prove its correctness. This much has been held by the Supreme Court in Bhagwan Singh v. State of Haryana . In the present case where a strict and faithful compliance with S. 164 of the Cr.P.C. exists, it can be safely assumed that the confession of the appellant was voluntary. I am fortified in this view by the observations made by the Supreme Court in Dagdu v. State of Maharashtra . In addition, as I have already pointed out, this is not a case where the prosecution relies only on the confessional statement to prove its case. This is, on the contrary, a case where other independent evidence of eye-witnesses exists and, therefore, there is no bar to accept only the inculpatory part of the confessional statement and to discard the exculpatory portion. I may, however, note that in the confession of the appellant there is no exculpatory part at all, for what he said to justify the assault does not constitute a ground to exculpate him.

15. In the light of the discussion of the evidence done by me, it becomes clear that the prosecution has succeeded to prove beyond doubt that on the particular occasion of the incident, the appellant assaulted with a knife the deceased Habib Khan by thrusting a knife on his back just below the left shoulder-blade. The evidence of Kesarbai and Petol who witnessed the whole incident is to be accepted, since it was not shaken at all in cross-examination and, on the contrary, is corroborated by the evidence of Dasharath and Vaijayanti Sagun, Jivan and Joaquim. This evidence taken together with the confessional statement of the accused and the medical evidence of Dr. Usgaonkar establish beyond doubt that the appellant has fatally stabbed the deceased. Hence, the finding of the learned Sessions Judge, in this connection, is correct and cannot be disturbed.

16. Turning now to the question as to whether the above action of the appellant constitutes an offence of murder punishable under S. 302, I.P.C., as alleged by the prosecution, or whether it constitutes merely a culpable homicide not amounting to murder punishable under S. 304, Part II, as held by the learned Sessions Judge, it will be interesting and elucidative to see how the latter approached and dealt with the problem. He observed :-

"31. Turning now to the problem of intention the question which now arises before this Court is to find out whether the accused caused the injuries to the deceased with the intention of causing his death or with the knowledge that the same were likely to cause death.

32. In this respect I shall say that the intention has to be gathered from the totality of the circumstances of the case, namely, the motive of the offence, the character of the weapon and the manner in which it is used. A person stabbing another with a hard and blunt object of his head or other vital regions like chest, neck, etc., cannot be reasonably excused of anything short of a deliberate intention to kill. A person who inflicts such wound intends to inflict a would which he himself knows would be, in all probabilities, dangerous to life. When an injury caused is not the result of an accident or negligence a strong presumption arises that such injury was inflicted to cause death. No one is supposed to inflict injuries sufficient to cause death in the ordinary course of nature and claim thereafter that he is not guilty of murder, unless it is shown or reasonably deducted that the injury was accidental or otherwise unintentional.

33. In the present case though no specific motive was relied upon by the prosecution to explain the injuries purportedly caused by the accused on the deceased the weapon ostensibly used by him, the nature of the injuries inflicted on the deceased as well as is location unmistakably show that if he did not act with the intention of causing death at least, he intended to cause such bodily injuries as he knows to be likely to cause death or that it would be sufficient, in the ordinary course of nature, to cause death or that he had knowledge that the injuries were so imminently dangerous so as to cause death, in all probabilities the death of the victim.

34. Therefore I need not stress how serious are to be deemed the injuries which have been caused by the accused on the region of his chest so as to lacerate his lungs with the help of a sharp pointed weapon, i.e. the knife. Dr. Usgaonkar himself has stated that the injury to the left lung with haemorrhage was by itself a fatal injury which caused the death of the deceased and that the knife (MO-1) shown to him could cause such type of injury and others found on the deceased. However, I have no hesitation in saying that although the circumstances of the case leads prima facie to the conclusion that his appears to be typical case of murder, the fact of the prosecution having totally failed to prove what was the real motive of the offence, more so when there was apparently no enmity or ill-feelings or even any weighty reason for the accused to take away the life of the deceased, coupled with the circumstance of the incident having occurred in the course of a quarrel during which there was a hot exchange of words between the accused and the deceased and the accused appeared to be also somehow intoxicated and/or under the influence of liquor, seem more than sufficient to rule out the possibility of one holding that the accused wanted really to kill the deceased or was intending to inflict on him a wound which he knew was meant to cause his death or it was likely to lead to his death in the ordinary course of nature and instead it appears from the circumstances of the case that the action of the accused comes more properly within the purview of the offence of culpable homicide not amounting to murder punishable under S. 304, Part II of the I.P.C."

The above transcribed portion of the impugned judgment makes a strange reading and contains a few serious and basic errors of law that render the finding of the learned Sessions Judge that the action of the appellant constitutes merely culpable homicide not amounting to murder punishable under S. 304, Part II, I.P.C. unsustainable and illegal. The said reasoning and finding of the learned Judge, on the facts and circumstances of the case, gave cause, undoubtedly, to miscarriage of justice.

17. It is no doubt true that ordinarily the question as regards the intention to cause death has to be exclusively determined on the basis of the circumstances of each case. The type or kind of the weapon used, the number and the nature of the injuries inflicted, the part of the body which was sought for causing the injury, the context of facts in which the fatal assault took place are, to mention a few some of the circumstances that constitute the relevant material for such purpose. The reasons why a man acts in a particular manner are indeed in his mind and hence, in the absence of a positive and reliable expression on his part of such reasons, one has necessarily to gather and determine his intention from the circumstances attendant to his particular action. Therefore, the observations made to that effect by the learned Sessions Judge in Para 32 of his judgment are substantially sound and do not require correction. But then, surprisingly, the learned Judge proceeded further and committed some basic errors of law that vitiate his finding. In fact, after having addressed himself correctly to the problem before him in para. 31, namely, whether the accused had inflicted the injuries to the deceased Habib Khan with intention to cause death or with the knowledge that such injuries were likely to cause death, the learned Judge did not at all answer that question, as he ought to have done. On the contrary, a plain reading of the above quoted paras 33 and 34 of the impugned judgment makes it clear that the learned Judge avoided a direct answer to the said question and went on observing that :-

"the weapon ostensibly used by him, the nature of the injuries inflicted on the deceased as well as its location unmistakably show that if he did not act with the intention of death at least, he intended to cause such bodily injuries as he knows to be likely to cause death or that it would be sufficient, in the ordinary course of nature, to cause death or that he had knowledge that the injuries were so imminently dangerous so as to cause death, in all probabilities the death of the victim."

By making these observations and by recording such positive finding, he clearly brought the appellant's action under any one of the four clauses of S. 300 I.P.C. that make a culpable homicide, murder. However, he did not clarify whether there existed on the part of the accused intention to cause death or a bodily injury which was likely to cause death, or whether there existed only mere knowledge that the injury was so imminently dangerous that would, in all probability, cause death. This specific finding was absolutely necessary, for if at all the appellant was benefiting by any of the exceptions in S. 300, the fact whether he had acted with intention or with mere knowledge would be entirely relevant in order to bring his action either under Part I or Part II of S. 304, I.P.C. The omission in recording such a specific finding constitutes, therefore, a serious infirmity.

18. I have already observed that the learned Sessions Judge, though avoiding to record a specific finding as to whether the appellant has acted with intention or merely with knowledge, nonetheless, held positively that the attendant circumstances unmistakably prove that the appellant has acted either with intention to cause death or with knowledge that he would inflict such an injury that would, in all probability, cause death. The words "unmistakably show" used in para 33 of the impugned judgment mean "undoubtedly show" and, therefore, it is clear that the learned Judge held that either intention or knowledge as aforesaid was duly proved. This is corroborated by the further observations made by him in the first part of para 34 of his judgment and particularly that "this appears to be a typical case of murder". However, after having recorded the aforementioned positive finding, the learned Judge made a sudden somersault and held that the appellant did not intend to kill, nor he intended to cause such a bodily injury as likely to cause death, nor even had the knowledge that, by his act, he would cause an injury so imminently dangerous that, in all probability, would cause death and, therefore, his action was falling under the purview of S. 304, Part II, I.P.C. These findings of the learned Sessions Judge are entirely unsustainable and against the evidence, being contradictory to the earlier positive finding given in the same connection. Besides, the said findings are entirely misconceived in law.

19. The reasons given by the learned Judge to record his contradictory finding that there was no intention to kill nor intention to inflict a bodily injury which was likely to cause death or even knowledge that he would inflict an injury so imminently dangerous that was, in all probability, likely to cause death are that the prosecution has totally failed to prove what was the real motive for the offence, that apparently there was no enmity or ill-feelings between the appellant and the deceased that the incident occurred in the course of a quarrel, during which there was a hot exchange of words, and finally, that the appellant appeared to be somehow intoxicated or under the influence of liquor. These reasons are far from sufficient to justify the reversing of his earlier positive finding by the learned Sessions Judge. I may, first of all, mention that it is rather strange that the learned Judge has stated that "the accused appeared to be somehow intoxicated and/or under the influence of liquor", for there is nothing on the record to show that the appellant was at the relevant time of the incident, intoxicated or under the influence of liquor. There is not a single word in that respect and, therefore, the learned counsel appearing for the accused and the prosecution were quite right in submitting that the learned Sessions Judge has assumed facts which are not in the evidence. It is true that it has come in the evidence of Balkrishna, PW-14, that the appellant was in the habit of drinking and, as such, he used to have quarrels with the family. However, there is no evidence at all in order to even suggest that the accused might have taken some liquor prior to the incident and that he was intoxicated at that time. It may be noted that, even during the cross-examination of the witnesses, no suggestion was put to them that the accused was under the influence of liquor. Thus there is no manner of doubt that the learned Judge has, without any support in the evidence, held that the appellant appeared to be intoxicated or under the influence of liquor at the relevant time of the assault. Then, the learned Judge is not correct in his stand that the prosecution totally failed to prove what was the real motive for the offence. It has come in the prosecution evidence that Dasharath had kept some rice in the house of the deceased and on the occasion of the incident, the appellant had gone to the house of the deceased demanding the return of the said rice. It has also come in the evidence that on the deceased refusing to hand over rice, the appellant started with abuses which were ultimately followed by the fatal assault. But even if the prosecution has failed to prove the motive, the failure, if any, of the prosecution in proving the motive for the offence is not of much relevance and, in any case, is not decisive to give a finding on the aforesaid question of intention or knowledge. Then, the evidence of the eye-witnesses as well as of Dasharath and Vaijayanti shows that the deceased had no weapon of any kind in his possession on the occasion of the incident and, on the contrary, the appellant was armed with a kitchen knife which had a blade of about 9 inches in length. In this context of the circumstances and facts, in my view, the reasons given by the learned Judge to reverse his earlier positive finding that the weapon used, the nature of the injuries inflicted on the deceased and its location unmistakably show that there was intention of causing death or to cause such bodily injury as was likely to cause death, or at least knowledge that his act was so imminently dangerous so as to cause, in all probability, death are untenable and unsustainable. On the contrary, the said facts and circumstances of the case strongly point out to the fact that appellant had acted with intention to cause the death of the deceased Habib Khan or a bodily injury which was likely to cause death. I say so, because in addition to the weapon used and the nature and the location of the injuries inflicted on the deceased, one has also to consider that the incident took place in the courtyard of the deceased's house which is situated about 200 mtrs. away from the appellant's house and also the circumstance that the appellant, while going to the said courtyard, took with him from his own house the knife which was used for the assault. To my mind, therefore, all these circumstances, taken together, leave no margin for doubt and as such, the original positive finding of the learned Sessions Judge was correct. Thus, after having recorded the said positive finding, the learned Judge was not at all justified in reversing it. He erred in recording two contradictory findings on the same point and this fact constitutes, undoubtedly, another serious infirmity.

20. Apart from the above two serious infirmities, the learned committed another basic error of law which completely vitiates his finding that the appellant has committed and offence punishable under S. 304, Part II, I.P.C. In fact, after having recorded a finding that the accused has not intended to kill the deceased, nor intended to inflict a wound which he knew to be likely to cause death, in ordinary course of nature, nor that he had even knowledge that his action was so imminently dangerous that, in all probability, would cause death, the learned Judge surprisingly held that "the action of the accused comes more properly within the purview of the offence of culpable homicide not amounting to murder punishable under S. 304, Part II of the I.P.C." I am afraid that the learned Sessions Judge natures some misconceptions in respect of the relevant law on the point and, therefore, did not understand and appreciate its basic aspects. His observations in Para 32 indeed give a clear indication that, to his mind, if a person causes an injury to other and death follows as a result thereof, the question to be determined will be whether the injury was caused intentionally or by mere negligence, and thus, if such injury was caused intentionally, the action of the person who inflicted it will necessarily constitute either murder or culpable homicide not amounting to murder, irrespective of the fact as to whether or not there was intention to cause such bodily injury as likely to caused death or intention to cause death or even knowledge that the act was so imminently dangerous that, in all probability, would cause death. This view of the learned Judge, which is clearly reflected in paras 32 and 34 of the impugned judgment, is absolutely erroneous and untenable, for even if the injury was not a result of negligence but of deliberate assault and death was caused by such injury, even then, if no intention to cause death or intention to cause a bodily injury which is likely to cause death or knowledge that the act committed was so imminently dangerous that it would, in all probability, cause death, the offence will not be murder or culpable homicide not amounting to murder punishable under S. 302 or 304, I.P.C. respectively, but it will be one of grievous hurt punishable under S. 326, I.P.C. The learned Judge failed to appreciate that S. 304, I.P.C. does not create any offence and is merely a punishing provision. In fact, in the scheme of the Code, culpable homicide is defined in S. 299 and in S. 300, it is postulated that if any of the four clauses mentioned therein occurs, culpable homicide amounts to murder. Then in S. 300 some exceptions are provided and it is prescribed that if any of such exceptions benefits the accused, his action will not be murder. It is thus clear that culpable homicide not amounting to murder occurs only when a person causes death of another either with intention to kill or with intention to cause such bodily injury as it is likely to cause death or with the knowledge that his action is so imminently dangerous that, in all probability, will cause death but in spite of this, he has acted either because, due to grave and sudden provocation, he had been deprived of the power of self-control, or such person has acted in good faith in exercise of the right of private defence of the person or property, or being a public servant or aiding a public servant acting for the advancement of public justice exceeds the powers given to him by law and causes death, or without premeditation causes death in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner, or finally, if the person whose death is caused, being above the age of 18 years, suffers death or takes the risk of death with his own consent. The learned Judge, as I have already observed, after having recorded a positive finding that the appellant, if he has not acted with intention to kill, at least, has acted with intention to cause such bodily injury as was likely to cause death or with the knowledge that the act committed by him was so imminently dangerous as it was likely to cause, in all probability, death, went on and advancing untenable reasons, reversed the said finding and recorded another finding which is, in terms, contradictory with his earlier positive finding on the same point. But this second finding, being to the effect that the appellant has acted without intention to cause death or without intention to cause such bodily injury as likely to cause death or even without knowledge that his action was so imminently dangerous as would, in all probability, cause death, does not justify his jumping to the conclusion that the action of the appellant was falling within the purview of S. 304, I.P.C. This finding is clearly erroneous and untenable, since if no such intention or knowledge existed, there could be no offence of culpable homicide, be it murder or culpable homicide not amounting to murder. Intention or knowledge as aforesaid is indeed one of the ingredients of such offence.

21. The reasons given by the learned Sessions Judge to contradictorily hold that the appellant has not acted with intention or knowledge as aforesaid are not sustainable, as I have already observed. I may say that, on the contrary the earlier positive finding of the learned Judge is entirely justified though the said finding is not complete, insofar as he failed to specifically give finding as to whether the appellant has acted with intention to cause death or with intention to cause a bodily injury as is likely to cause death, or merely with the knowledge that his act was so imminently dangerous as would, in all probability, cause death. I say so in the light of the circumstances attendant to the incident. In fact, the incident occurred in the courtyard of the house of the deceased, at a distance of about 200 mtrs. from the house of the appellant. The appellant went to the said courtyard of the deceased's house taking with him a kitchen knife which has a length of about 9 inches. The said knife was belonging to him and was taken by the appellant to the spot when he went to challenge and to start a quarrel with the deceased. Then, it is proved beyond doubt that the deceased had no weapon in his hands and that the quarrel consisted initially in a mere hot exchange of words followed by a fight with bare hands. In spite of this, the evidence shows that the accused stabbed the deceased on his back just below the left shoulder-blade. The blow as the medical evidence of Dr. Usgaonkar clearly establishes, was given with such a force that the knife was driven inside the body of the deceased so as to cause perforation of the lungs and a massive haemorrhage. The fact that the deceased was stabbed on the back clearly indicates that, at the time the knife blow was given, he was not facing the appellant but has turned his back to him. This also indicates that he was attempting to leave the spot of the quarrel. Then, the location of the injury, that is, on the left side of the chest, strongly points out to the intention of the appellant to cause a fatal injury by hitting the heart. Further, the simple fact that the deceased had no weapon in his hands also shows that there was no justification of whatsoever nature for the appellant giving a knife blow. All these circumstances, in my view, establish beyond any reasonable doubt that the appellant has either intended to kill the deceased, or at least, he has intended to cause him such bodily injury that he knew was likely to cause death.

22. Thus, in the light of the evidence on record, in my view, the action of the appellant squarely falls within the purview of S. 300, I.P.C. and thus, constitutes an offence of murder. This is so because manifestly, on the facts and circumstances of the case, the action of the appellant is not falling within any of the exceptions of the said S. 300. The fatal assault committed by the appellant does not come within the purview of exception 1, for the deceased did not give any grave or sudden provocation as to deprive the appellant from self-control. On the contrary, the evidence shows that the appellant himself went and provoked the whole incident. So also, it is not possible to say that the appellant has acted in good faith and in the exercise of the right of private defence, nor it is possible to say that his action is covered by exception 4. Obviously exceptions 3 and 5 are not attracted. So far as exception 4, it is useful to recall that it is postulated in the said exception 4 that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. These conditions are not satisfied in the present case for, though it is true that premeditation is not proved and though the stabbing incident took place during the course of a quarrel, the fact remains that the quarrel and the fight had been provoked by the appellant himself and in any case, he had taken undue advantage by using the knife to stab the deceased. This is so, because it is clearly proved that the deceased had no weapon in his hands during the fight and was stabbed on his back, a fact that shows that he was leaving the place of the assault. It is no doubt true that Mr. Usgaonkar submitted that the appellant is a disabled man, since he limps as a result of a fracture of a leg, Nowhere, it has been brought in the evidence when the appellant suffered the said fracture, though when he was heard on the point of sentence, it was brought on record that he had suffered a fracture and that he is limping. However, nowhere during the recording of evidence, it was brought on record that the appellant was suffering from the said disability at the relevant time of the incident. It is noteworthy that even a suggestion to that effect was not made by the accused to any of the prosecution witnesses. This being so, it is clear that the action of the accused is not covered by any of the exceptions in S. 300, I.P.C. and so, his having stabbed the deceased with intention to cause death or to cause such bodily injury as he knew to be likely to cause death, brings his action squarely within the offence of murder punishable under S. 302, I.P.C. Thus, the finding recorded by the learned Judge that the action of the accused amounts to culpable homicide not amounting to murder punishable under S. 304, Part II is patently erroneous and has occasioned a gross miscarriage of justice.

23. This brings me now to the next question, namely, to the question as to whether it is at all permissible to reverse the said finding of the learned Judge and to record a finding of conviction for an offence punishable under S. 302, I.P.C. In this connection, I may point out that the present appeal was filed by the accused against his conviction and that no appeal was filed by the State or by the complainant. Thus, it is clear that the present appeal is one from a conviction. S. 386 of the Cr.P.C. deals with the powers of the Appellate Court and provides that the Appellate Court, if it considers that there is no sufficient ground for interfering should dismiss the appeal, or may, in an appeal from a conviction, (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same. The learned public prosecutor Mr. Bhobe, contended that this Court has enough power while dealing with the present appeal to alter the wrong finding given by the learned Sessions Judge while convicting the appellant for an offence punishable under S. 304, Part II, I.P.C. This power, according to him, flows from S. 386(b)(ii), Cr.P.C. The learned counsel, however, is not correct in his submission, for while dealing with an appeal under the said provision of the law it is not open to the Appellate Court to reverse a finding of acquittal and record a finding of conviction. A similar situation fell for consideration of the Supreme Court in State of Andh. Pra. v. T. Narayana , for an argument was advanced that under the provisions of S. 423(1)(b) of the old Cr.P.C., the Appellate Court could reverse a finding of acquittal. The Supreme Court negatived such argument. It is true that the said decision of the Supreme Court was passed while dealing with the provisions of S. 423(1)(b)(1) and (2) of the Code of Criminal Procedure, 1898. However, I may point out that S. 386 of the present Code of Criminal Procedure is corresponding to the aforesaid S. 423 of the old Cr.P.C., and hence, the observations made by the Supreme Court in that case fully apply to a similar situation arising under S. 386 of the present Code. The Supreme Court held the view that the expression "alter the finding", which was occurring in S. 423(1)(b)(2) of the old Cr.P.C. which corresponds to S. 386(b)(ii) of the new Cr.P.C., has only one meaning and that is "alter the finding of conviction and not the finding acquittal". The Court observed that if the expression "alter the finding" was to include the power to reverse the finding of acquittal it is not easy to realise why S. 423(1)(a), should have been enacted at all. Then, it added that from the very fact that S. 423(1)(a) deals independently with the topic of appeals from orders of acquittal, it would be reasonable to infer that the appellate power in respect of the orders of acquittal are dealt with separately and exclusively under S. 423(1)(a) whereas appellate powers to deal with orders of conviction are dealt with separately and exclusively under S. 423(1)(b). The scheme of S. 423, therefore, is inconsistent with the argument that Cl. (2) of S. 423(1)(b) covers orders of acquittal and empowers the Appellate Court to alter the said orders. Continuing, the Court further observed that as a matter of construction the words "the finding" in the expression "alter the finding" must mean the finding of conviction, because the clause begins with "in an appeal from a conviction" and it is obvious that read in the context of the opening words of the clause "the finding" must mean the finding of conviction and no other. In fact, it is with an appeal from conviction that the clause deals and it is the finding of conviction or guilt which it empowers the Appellate Court to alter. The word "alter" must in the context be distinguished from the word "reversed". Whereas, the Court observed, under S. 423(1)(b)(1) power is conferred on the High Court to reverse the order of conviction, the power conferred on the Appellate Court by the expression "alter the finding" is merely the power to alter. Reversal of the order implies its obliteration whereas alteration would imply no more than modification and not its obliteration. This consideration also shows that what the expression aims at is the finding of conviction or guilt and not the finding of acquittal or innocence. It is thus clear that, in a case of appeal against a conviction, it is not open to the Appellate Court to alter the said finding and convict the appellant of an offence from which he has been acquitted. Now, then next question that arises is whether, in the present case, it can be said that a finding of acquittal had been recorded, since the appellant has actually been convicted for an offence punishable under S. 304, Part II, I.P.C. The same authority of the Supreme Court gives a complete answer to it. In fact, in para. 15 of the said judgment, the Supreme Court, after quoting from the decision of the Privy Council in Kishan Singh v. Emperor, AIR 1928 P.C. 254 : (29 Cri LJ 828), made it clear that if an accused is charged under S. 302 but is ultimately convicted under S. 304, there is an implied acquittal of the offence punishable under S. 302, I.P.C. if an express acquittal is not recorded. In the present case, the appellant has been charged and tried for an offence of murder punishable under S. 302, I.P.C. The learned Judge did not record a specific finding of acquittal of the appellant for the said offence but held that his actions were falling under the provisions of S. 304, Part II, I.P.C. Thus, on the strength of the above observations of the Supreme Court, I have no doubt in holding that in the present case there was, in fact, an order of acquittal of the appellant in respect of the offence of murder punishable under S. 302, I.P.C.

24. But does it mean that this Court is helpless and could not interfere in spite of the clear miscarriage of justice that the wrong finding of the learned Sessions Judge has occasioned ? In my view, the answer to this question is in the negative and this Court has full powers to interfere under its revisional powers conferred by S. 401, Cr.P.C. read with S. 397. In fact, S. 401 provides that in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by S. 386, 389, 390 and 391 or on a Court of Session by S. 387 and, when the judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by S. 392. It is, therefore, clear that the powers conferred on the High Court by S. 401 are wide enough and enable the court to look into the legality, correctness and propriety of any judgment, even reapprising the evidence, if so necessary. Sub-sec. (3) however, provides that nothing in the section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. It would thus appear from the aforesaid sub-section (3) that, in no case, the High Court will be entitled in the exercise of the powers conferred under S. 401, Cr.P.C. to convert a findings of acquittal into one of conviction. However, this is not so and in exceptional cases, such power can be exercised, especially when such exercise of power is required to prevent a miscarriage of justice. I am fortified in this view by the decisions of the Supreme Court, inter alia, in the cases of D. Stephens v. Nosibolla , Logendranath Jha v. Polailal , K. Chinnaswamy Reddy v. State of Andhra Pradesh and Satyendra Nath v. Ram Narain . It is true that the above decisions of the Supreme Court were passed while dealing with S. 439 of the old Cr.P.C. but the said section is corresponding to the new S. 401. Thus the law laid down in the said authorities is entirely applicable under S. 401, Cr.P.C.

25. It is also true that in all the above four authorities though there was no appeal filed by the State against the acquittal nevertheless, there was a revision filed by the complainant. Thus, the question that arises is whether, in the present case, where neither an appeal was filed against the acquittal by the State nor the complainant has challenged, in any manner, the said acquittal, is it possible for this Court to suo motu exercise the powers under S. 401, Cr.P.C. in order to convert the said finding of acquittal into one of conviction. In Ramesh Chandra v. A. P. Jhaveri , the Supreme Court answered this question in the affirmative. It was observed :-

"7. It is no doubt true that the High Court acted suo motu in setting aside the acquittal of the appellant, but that fact would not show that there was any irregularity in the procedure adopted by the High Court. The opening words of S. 439 of the Code of Criminal Procedure, viz., "in the case of any proceedings the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge", as observed by this Court in the case of The State of Kerala v. Narayani Amma Kamala Devi produce the result that revisional jurisdiction can be exercised by the High Court by being moved either by the convicted person himself or by any other person or suo motu on the basis of its own knowledge derived from any source whatsoever without being moved by any person at all. All that is necessary to bring the High Court's powers of revision into operation is such information as makes the High Court think that an order made by a Subordinate Court is fit for the exercise of its powers of revision."

The same view was again reiterated by the Supreme Court in Municipal Corpn. of Delhi v. Girdharilal Sapuru . It is thus free of doubt that nothing prevents this Court from suo motu exercising in the present case the revisional powers under S. 401 read with S. 397, Cr.P.C., since in the present case if the findings of acquittal is allowed to stand, a gross miscarriage of justice will be occasioned.

26. The Appellate Side Rules of our High Court in Part I, Chapter I, Para 2 lay down that save as otherwise expressly provided by the rules, a single Judge may dispose of civil and criminal matters as mentioned therein. In sub-clause II, the criminal matters which can be disposed of by a single Judge was discriminated and sub-clause (a) postulates that appeals against convictions in which only a sentence of fine has been awarded or in which the sentence of imprisonment awarded does not exceed five years with or without fine, appeals against acquittals wherein the offence with which the accused was charged is one punishable on conviction with a sentence of fine only or with a sentence of imprisonment not exceeding two years or with such imprisonment and fine, and appeals under S. 377 of the Code of Criminal Procedure, revision applications and Court notice for enhancement of sentence for offences punishable on conviction with sentence of fine only or with sentence of imprisonment not exceeding two years or with such imprisonment and fine are to be dealt with by a single Judge. Now, in the present case, the learned Sessions Judge has convicted the appellant for an offence punishable under S. 304, Part II, I.P.C. and sentenced him to undergo four years of rigorous imprisonment. In view of this factual position, this appeal was placed for disposal before me as a single Judge. The findings above given by me are to the effect that the conviction recorded and subsequent sentence passed by the learned Sessions Judge are erroneous and that the finding of acquittal for an offence punishable under S. 302, I.P.C. is to be reversed. This being the case, in view of the above rule of the Appellate Side Rules, a Single Judge has no jurisdiction to deal with the matter. Hence, the present appeal has to be placed for disposal before a Division Bench.

27. In the result, this appeal be placed for hearing before a Divisional Bench and a notice be given under sub-section (2) of S. 401, Cr.P.C. to the accused.

28. Order accordingly.