Judgment :- 1. This appeal was posted before me, sitting as a single judge, pursuant to the provisions of the Kerala High Court Act, 1958, Act V of 1959. A preliminary objection to the competency of a single judge to hear the appeal, was raised on behalf of the appellant, who is the accused in the case, on the ground, that he has a vested right to have the appeal heard, by a bench of two judges, under the earlier High Court Act of 1125. Reliance was placed by his learned counsel on the decision of the Supreme Court in Garikapati Veeraya v. N. Subbiah Chowdhry, A.I.R. 1957 S. C. 540, particularly, the observations of the learned Chief Justice in Para.48 of his judgment, and also, on the decision of the Punjab High Court in Gordhan Das Baldev v. Governor General in Council, A.I.R. 1952 Punjab 103. The question for decision in the case before the Supreme Court was, whether by reason of a subsequent change in the law, a right of appeal to the Federal Court which was previously in existence, was extinguished; this was answered in the negative. The dictum of the Supreme Court is of little relevance in the present case, for the right of the appellant to appeal to the High Court, conferred by S.410, Criminal Procedure Code, has not been taken away by the High Court Act of 1959, which has been enacted, as the preamble says, only "to make provisions regulating the business and the exercise of the powers of the High Court". The view taken by the Travancore - Cochin High Court in Narayana Panicker Sankaranarayana Panicker v. Sankaranarayana Panicker Narayana Panicker, 1952 K. L. T. 339, with respect to the earlier High Court Act, that no litigant has a vested right that his appeal should be heard by a particular number of judges and that the provisions of the Act prescribing the powers of Single Judges and Division Courts are only matters affecting procedure, must hold even under the High Court Act of 1959. 2. As noticed in Fateh Chand v. Muhammad Bakush, I.L R. XVI All. 259, there is a distinction between'a right of action' and a 'right of action to be conducted in a particular way'. The former is a vested right, while the latter is merely a matter of procedure. 2. As noticed in Fateh Chand v. Muhammad Bakush, I.L R. XVI All. 259, there is a distinction between'a right of action' and a 'right of action to be conducted in a particular way'. The former is a vested right, while the latter is merely a matter of procedure. It is unnecessary to discuss the cases bearing on this point, many of which, have been considered by Koshi, C.J. in the Travancore-Cochin case cited earlier. If, as I think, the view held in that case is sound, it must follow, that the provision in the High Court Act of 1959, empowering a Single Judge to hear an appeal of this category, must have retrospective operation so as to apply to pending appeals. 3. Some reliance was placed on the following observations of the Supreme Court in Garikapati's case, "we think, that the suit, out of which this application arises, having been instituted before the date of the Constitution, the parties thereto had, from the date of the institution of the suit, a vested right of appeal upon the terms and conditions then in force", and it was urged, that the right of hearing before a bench of judges, was "a term or condition" within the meaning of the above observations, and cannot now be denied to the appellant. It is clear to my mind, that the term or condition referred to, must at least qualify the right of appeal, if it is not so intimately connected with it as to form part of that right. The judgment of the court, in which these observations are found, itself furnishes instances of such terms or conditions, which amply illustrate the meaning of these words, in the context in which they were employed. 4. The case decided by the Punjab High Court, cited above, has no application to a criminal appeal; the rationale of that decision was, that the effect of an amendment in the law, by which a single judge became competent to hear civil appeals which used to be heard by a divisional court, was to take away the right of a further appeal to the Supreme Court, under Art.133(3) of the Constitution. The Travancore-Cochin High Court, has dissented from the view so taken, in Narayana Panicker Sankaranarayana Panicker's case. I therefore hold, that a Single Judge is competent to hear this appeal. 5. The Travancore-Cochin High Court, has dissented from the view so taken, in Narayana Panicker Sankaranarayana Panicker's case. I therefore hold, that a Single Judge is competent to hear this appeal. 5. The appellant was convicted by the learned Sessions Judge of Trivandrum, for an offence under S.304 Part II, I.P.C. and was sentenced to undergo rigorous imprisonment for 18 months. He married Nagamma, the deceased, about 57 days before her death, which took place on the night of the 22nd January 1958. He was living with his paternal uncle, Pw. 4, and other members of the latter's family, consisting of his wife, Pw. 5, and his sons Pws. 6 and 7. The appellant began to suspect, that his wife was in criminal intimacy with P. W. 6, about 18 years of age; he had often warned her against it, but to no purpose. On the night of the 22nd January, when the appellant returned home at, about 9.30, he noticed his wife and P.W. 6, coming out of a lane attached to their residence. The case against the appellant is, that he then caught hold of his wife, took her into her room, pushed her against a wall, then brought her out into the courtyard, assaulted her by hitting her on the left side of the chest and the abdomen and then pulled her by her hands to the road side, when his sister intervened, and the deceased ran towards P. W. 4. After a time, the appellant removed some of his vessels and also a box, as if he had nothing more to do with her, and then left the place. Later, in the night, he went to the house of his father-in-law, P. W.1 at Vanchiyoor, and insisted on a divorce being arranged then and there. On the next morning, news reached the ears of P. W.1, that his daughter had died. P. W.1 then gave the first information, Ext. P1, at 10.35 A.M., at the Puthanchanthai Police Station, stating that he suspected foul play at the hands of the appellant. The police registered a case, and held an inquest over the dead body on the same day, when P. W. 7 and others put up a theory, that the deceased had committed suicide by taking kerosene oil and by hanging herself afterwards. The police registered a case, and held an inquest over the dead body on the same day, when P. W. 7 and others put up a theory, that the deceased had committed suicide by taking kerosene oil and by hanging herself afterwards. It was strange, that no mark of violence was noticed by the Sub-Inspector, P. W.12 at the inquest. The post-mortem examination took place only on the succeeding day when it was revealed, that there were four contusions on the body, on the left side of the abdomen and of the chest and on the face and on the left shoulder. Corresponding to the contusion on the left side of the chest, there was a laceration on the lower lobe of the left lung, while the spleen was contused and swollen. In the opinion of the surgeon, the injury of the lung was fatal, but not the injury to the spleen, which was said to be a serious one. The cause of death was syncope from shock and haemorrhage, due to the injuries to the lung and the spleen. On the above evidence, it may be concluded, that Nagamma died on the 22nd night, as a result of an injury to the lung. 6. It was clearly proved in the case, that the appellant had a suspicion concerning Nagamma's relations with P. W. 6, and that in consequence, he had warned her several times; it is also in evidence that Nagamma did not pay much attention to his warnings, and that on the night of the occurrence, he found her coming out of the lean with PW. 6. So much, was practically admitted by the appellant, in his statement under S.342, Criminal Procedure Code. I discard the theory of the defence, that Nagamma had drunk kerosene oil, or that she committed suicide by hanging herself. Probably, P. Ws. 4 to 7 and others, who were more closely related to the appellant than to Nagamma, and were cross-examined as witnesses in the case hostile to the prosecution, being confronted and contradicted with parts of their previous statements also, wanted to give a turn to the early version about the occurrence, and so worked upon such a theory, even at the time of the inquest. Apart from the testimony of P.Ws. Apart from the testimony of P.Ws. 3 and 8 on whom the learned judge has relied, all that appears against the appellant, is, that he had a motive to assault Nagamma, and that she was found dead afterwards, with injuries to her lung and her spleen. PW.10 testified, that the spleen injury, though fatal, was serious. He said that the spleen was enlarged. Whether this was on account of the swollen condition of the spleen, which was made mention of in the certificate or not, has not been made clear. 7. P. W. 8 only testified, that he saw the appellant taking the deceased by the hand to the road-side, while she was crying aloud that there was none to help her. It was then, that the appellant's sister came and intervened. The appellant then declared, that he did not want his wife any more and the latter ran home. After some time the witness saw the appellant leaving the house with some vessels and a box; his evidence, standing by itself, does not connect the appellant with the crime. 8. So all that remains is the testimony of P.W. 3. It may be noted, that he was interrogated by the Circle Inspector of Police, only on the 24th January 1958 after the post-mortem examination. He was not a neighbour but was living at some distance away. He was a sweet-meat vendor at the time. He was said to have been taking tea in a tea shop on the eastern side, marked 13 in Ext. P-11. He said he heard a cry at 9 P.M. and then got out of the shop. He stated, that he saw the appellant hitting the deceased on the left side of the chest and of the abdomen, when the appellant's sister came. According to P. W. 8, it was after the deceased was taken towards the road, that the appellant's sister intervened. The appellant then beat her, and the deceased went home and sought the help of P. W. 4. Immediately, the appellant removed the vessels and left the place. This version does not correspond to that of P. W. 8. P. W. 3 did not appear to be quite familiar with the locality, and went wrong in mentioning the location of the residence of the appellant, with respect to the tea shop. Immediately, the appellant removed the vessels and left the place. This version does not correspond to that of P. W. 8. P. W. 3 did not appear to be quite familiar with the locality, and went wrong in mentioning the location of the residence of the appellant, with respect to the tea shop. Though he professed to have seen the appellant earlier, he said he was able to identify the appellant's sister only by reason of what the neighbours told him. In his statement under S.162, Criminal Procedure Code to the police officer, he said he witnessed all this, standing on the road; in his deposition he said, that he got inside the garden from the road and witnessed what took place. It seems to me, that it is not quite safe to rely on his testimony alone to enter a conviction. 9. The learned Public Prosecutor urged, that the circumstantial evidence by itself is conclusive to establish the guilt of the appellant. The circumstances pointed out by him were the motive for an attack on his wife, and the injury detected on post-mortem examination. I am of the view, that these circumstances alone are not sufficient to bring home the guilt of the appellant. The result is, that the conviction of the appellant entered by the learned Sessions judge is hereby quashed and the sentence is set aside. The appellant is acquitted, and set at liberty forthwith, if not wanted on any other charge. The directions regarding the disposal of the material objects will stand. The appeal is allowed. Allowed.