JUDGMENT : SAMVATSAR, J. 1. This is a petition under Art. 134(1)(c), Constitution of India, for a certificate that our decision in Criminal Appeals Nos. 56 of 1954 and 118 of 1954, is fit one for further appeal to the Supreme Court. 2. The petitioner Rama s/o Dewa was tried by the Sessions Judge, Ujjain on the charge of murder of one Dewa by a gun shot. The learned Judge however found him guilty under S. 304 Pt. 1 I.P.C. and sentenced him to rigorous imprisonment for seven years. He filed an appeal against his conviction and sentence which was registered as Criminal appeal No. 56 of 1954. The State also filed an appeal against the acquittal of the petitioner of the charge of murder and that appeal was registered as Criminal appeal No. 113 of 1954. As both the appeals arose out of the same incident, they were decided by a common judgment. 3. After hearing both the parties, Criminal appeal filed by the petitioner was dismissed whereas the appeal filed by the State was allowed and the conviction was altered to one under S. 302, I.P.C. The sentence was consequently enhanced to one of transportation for life. 4. The petitioner wants to prefer a further appeal to the Supreme Court and has therefore applied for a certificate under Art. 134(1)(c) as stated above. 5. The trial Court had, on the evidence of one D.W. Gulab came to the conclusion that the petitioner's case was covered by Exception (1) to S. 300, I.P.C. In appeal we rejected the evidence of Gulab as unreliable and unhelpful to the petitioner. We were of the opinion that in view of the language of S. 105, Indian Evidence Act, when a person is accused of an offence, the burden of proving the existence of circumstances bringing the case under any of the general exception or provisos contained in any other part of the same code or in any law defining the offence, is upon the accused and the Court shall presume the absence of any such circumstances. As there was no material on the record to hold that there was grave and sudden provocation, we came to the conclusion that Exception (1) to S. 300, I.P.C. did not apply and the accused deserved to be convicted under S. 302, I.P.C. 6. Mr. As there was no material on the record to hold that there was grave and sudden provocation, we came to the conclusion that Exception (1) to S. 300, I.P.C. did not apply and the accused deserved to be convicted under S. 302, I.P.C. 6. Mr. Pande learned counsel for the petitioner, referred to some decisions where the courts have given the accused person benefit of the Exception without there being any specific plea raised in that behalf. But these cases obviously have no application as in the present case we have found on evidence that there was no material to apply the provisions of Exception (1) to the S. 300 I.P.C. Our decision is thus based purely on appreciation of evidence and circumstances of the case. 7. A case cannot be certified as fit one for appeal to the Supreme Court if injustice of a serious and substantial character has not occurred to the petitioner and if the case does not involve such a substantial question of law, as by reason of there being conflict of existing authorities as to the principle of law involved, requires an authoritative decision from the highest Court in the land. It is not the function of the Supreme Court to re-assess evidence and an argument on point of fact which did not prevail with the Court below, cannot avail the appellant in the Supreme Court. 8. There are no grounds to entertain this petition and it is hereby dismissed. 9. NEVASKAR, J. :- I agree. Petition dismissed.