Judgment :- 1. This is a petition under Art.134 (1) (e) of the Constitution for a certificate that the case is a fit one for appeal to the Supreme Court. We may straightaway observe that this is not a fit case for appeal under Art.134(1) (e). 2. But, when the petition came up for hearing on a previous occasion, we felt that the case might come within the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, Central Act 28 of 1970. And the petition was adjourned at the request of the counsel of the petitioners; and it has come up now for further consideration. Article 134(1) (a) reads: "An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death." And S.2 (a) of Act 28 of 1970 reads: "Without prejudice to the powers conferred on the Supreme Court by clause (1) of Art.134 of the Constitution, an appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to imprisonment for life or to imprisonment for a period of not less than ten years." These two provisions are similar in language: in other words, S.2 (a) of Act 28 of 1970 is just an enlargement of the ambit of Art.134 (1) (a) of the Constitution. Now, the first question we have to consider is whether the case will fall within S.2 (a) of Act 28 of 1970. 3. The petitioners and two others were prosecuted under S.302 of the Penal Code read with S.34 thereof; and the Sessions Judge acquitted all except the first petitioner. The first petitioner was convicted under S.304 part 11 and sentenced to rigorous imprisonment for seven years. Both the first petitioner and the State filed appeals, the first petitioner against his conviction and sentence under S.304 and the State against the acquittal of all the accused persons under S.302 read with S.34. The first petitioner was convicted under S.304 part 11 and sentenced to rigorous imprisonment for seven years. Both the first petitioner and the State filed appeals, the first petitioner against his conviction and sentence under S.304 and the State against the acquittal of all the accused persons under S.302 read with S.34. We dismissed the appeal filed by the first petitioner and allowed the appeal filed by the State in part convicting the first petitioner under S.302 and sentencing him to imprisonment for life and convicting the second petitioner under S.323 and awarding him a sentence of rigorous imprisonment for six months. And we dismissed the appeal against accused persons 3 and 4 confining their acquittal. 4. It may be possible to urge that S.2 (a) of Act 28 of 1970 does not apply to a case like this and the Act applies only to a case of complete acquittal and not to a case where a person has been charged of a more serious offence, and convicted of a lesser offence, but, on appeal convicted of the more serious offence and awarded life imprisonment or imprisonment of not less than ten years. We do not think that this contention can stand, because, when a person is charged of a more serious offence but is convicted and sentenced of a lesser offence, what happens is that he is acquitted of the more serious offence. Therefore, in a case like the one before us where the charge was under S.302 and the conviction was under S.304 part II, what the Sessions Judge did was to acquit the first respondent of the offence under S.302 and to convict and sentence him of a lesser offence. If so, the case must squarely fall within; S.2 (a) of Act 28 of 1970. 5. In this connection, our attention has been drawn to the decision of the Supreme Court in Tarachand Damu Sutar v. The State of Maharashtra (AIR. 1962 S.C.130) dealing with Art.134 (1) (a) of the Constitution, which, as already pointed out, is in the same language as S.2 (a) of Act 28 of 1970. 5. In this connection, our attention has been drawn to the decision of the Supreme Court in Tarachand Damu Sutar v. The State of Maharashtra (AIR. 1962 S.C.130) dealing with Art.134 (1) (a) of the Constitution, which, as already pointed out, is in the same language as S.2 (a) of Act 28 of 1970. The five learned judges who constituted the Bench have agreed (though there has been a divergence of opinion on the merits of the case) that the word "acquittal" in Art.134 (1) (a) does not mean that the trial must have ended in a complete acquittal but would also include the case where an accused person has been acquitted of the charge of murder and has been convicted of a lesser offence. During the course of the discussion, we find the Supreme Court referring to the decision of the Privy Council in Kishan Singh v. Emperor (AIR. 1928 PC. 254), where Their Lordships of the Privy Council have considered S.439 (4) of the Code of Criminal Procedure, After referring to this decision, the Supreme Court has applied the same principle to Art.134 (1) (a) of the Constitution, which interpretation must apply equally to S.2 (a) of Act 28 of 1970. Therefore, the first petitioner is entitled to appeal, as of right, to the Supreme Court. 6. The next question that arises is whether the present petition is maintainable before us. In our opinion, the petition is not maintainable. The language of Art.134 (1) is different from the language of Art.133 (1) relating to appeals to the Supreme Court in civil matters. Art.133 (1) reads: "An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies ' Whereas Art.134 (1) reads: "An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of b High Court in the territory of India if the High Court " (We have already extracted this once.) 7. Evidently, under Art.133 (1) a certificate from the High Court is necessary, even if the case falls under clause (a) of the Article that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than twenty thousand rupees, etc., whereas under Art.134 (1) no such certificate from the High Court is necessary. It follows that the present petition for a certificate of fitness (may be that the appeal is even as of right) does not lie to this Court. The petitioners should go straight before the Supreme Court. The petition is dismissed.