DESAI, J. ( 1 ) THE appellant was the accused in Sessions case No. 30/83 on the file of the Sessions judge,. Kodagu, Madikeri. He was tried for an offence punishable under Section 302 IPC for committing the murder of deceased - K. C. Chengappa alias Nani by shooting him with the revolver - M. O. 1. As the accused denied the commission of the said offence, P. Ws. 1 to 15 were examined and Ex. P. 1 to 18 and M. Os. 1 to 18 were produced on behalf of the prosecution. Exhibit D : was got marked for the accused during the cross-examination of P. W. 4. No evidence was adduced on behalf of the accused. The defence of the accused was one of total denial. ( 2 ) IN his written statement filed under Section 313 Cr. P. C. the accused stated inter-alia, that the land from which bamboo shoots were cut does not belong to him and so he had no reason to object to anybody cutting them; that on 25. 7. 1983 he worked in his paddy field repairing the breaches in the bunds and was resting in the afternoon; that as usual he left his house at 5. 00 p. m. and reached the Victoria club at Virajpet at 6. 00 p. m. ; that at about 6. 30 p. m. a Constable went to the club and informed him to meet the Circle Inspector; that when he reached the police station, the Circle Inspector informed him that a dead body with a gun shot wound was lying adjacent to his land; that he would like to make a general check of the weapon held by him and others in the vicinity; that he offered to hand over his weapon and he handed over his revolver and six live cartridges after going to his house in the police jeep; that thereafter the Circle Inspector informed him that he was under arrest ; and that he had no reason whatsoever to shoot the deceased as he was in cordial terms with the deceased. ( 3 ) ACCEPTING the prosecution evidence the learned Trial Judge held him guilty for causing the death of the deceased by shooting him with the revolver, by his judgment dated 15. 9. 1984. ( 3 ) ACCEPTING the prosecution evidence the learned Trial Judge held him guilty for causing the death of the deceased by shooting him with the revolver, by his judgment dated 15. 9. 1984. Thereafter, the learned Sessions judge, questioned the accused as regards the sentence stating that he had convicted him under Section 302 IPC. Thereafter on the same day, the learned Trial Judge, proceeded to consider that the offence committed by the accused was one under Section 304 Part -II IPC. Regard being had to the facts that there was an altercation between the accused and the deceased; that there was no malice; that there was no pre-meditation ; that their meeting was a chance meeting : that the cause of quarrel though trivial was just sudden and in view of the decision in state of Karnataka v Kamalaksha (1978 Cr. L. J. p. 290) (2) Jagtar Singh v State of Punjab (1983 Crl. L. J. p. 852) and in view of the age, health of the accused and the circumstances in which the offence had been committed, he imposed a sentence of R. I. for 5 years on him. Hence, this appeal by the accused against the said convection and sentence through the Superintendent of Central Jail, mysore. ( 4 ) WHEN the Appeal came up for hearing before our learned brother, Navadgi J, it was held that the appeal should be heard by a division Bench since the appellant had been convicted under Section 302 IPC and the punishment provided for the offence of murder under that Section is either death or imprisonment for life and as the sentence of r. I. for five years imposed by the Trial Court was clearly illegal and directed the office to place the recorde before the Hon'ble Chief justice for necessary orders. That is how, the appeal has come up for hearing before us. From the records, we find that the accused had sent a petition dated 2. 9. 1987 through Jail for dismissing his appeal as withdrawn. No orders have been passed on that petition. The appeal was admitted on 8. 2. 1985. When once the appeal is admitted, there is no provision in the Criminal Procedure code, enabling the party to. withdraw the appeal and the appeal has to be disposed of in accordance with Section 386 Cr. No orders have been passed on that petition. The appeal was admitted on 8. 2. 1985. When once the appeal is admitted, there is no provision in the Criminal Procedure code, enabling the party to. withdraw the appeal and the appeal has to be disposed of in accordance with Section 386 Cr. P. C. This Appeal is from a conviction and sentence and so, it has to be disposed df in accordance with Section 386-D of the Criminal procedure Code 1973. The said view finds support from the decisions in Emperor v ghulam Mohammed (AIR (29) 1942 Lahore p. 296) (full bench) (2) Lal Singh v State of punjab and others (1981 Cr. L. J. p. 1069) (Full bench) (3) Biswanath Chakravarthy v haripada De Dhara and Others (AIR 1959 Calcutta 443 ). ( 5 ) THEREFORE, we reject the application of the accused for withdrawal. The prosecution case may be briefly stated as follows: on 25. 7. 1983 at about 1. 30 p. m. K. A. Somaiah P. W. 1, Chengappa - deceased and poonacha - P. W. 4 went to Karthamotte forest near Kottoli Village, Virajpet Taluk of kodagu District for cutting bamboo shoots. Poonacha - P. W. 4 stood on the foot path while Somaiah - P. W. I and deceased -Chengappa went into the forest in different directions for the purpose of cutting bamboo shoots. At about 2. 30 p. m. on that day, somaiah P. W. 1 heard exchange of hot words from the side where the deceased - Chengappa had gone. On hearing that, P. W. 1 proceeded towards that place and found the accused and the deceased exchanging hot words. Then accused shot the deceased -Chengappa means of revolver which he was holding in his right hand. The bullet hit the chest of Chengappa and he fell down to the ground. P. W. 1 called out Poonacha - P. W. 4 saying that the accused had shot Chengappa. On hearing that, P. W. 4 rushed to the spot, and saw the accused running away holding a pistol in his hand towards his house, situated at a distance of about 150 yards from the spot. Then P. W. 1 and 4 found Chengappa dead. Then they went to the house of Chengappa and informed his mother and other relatives about the incident. Then P. W. 1 and 4 found Chengappa dead. Then they went to the house of Chengappa and informed his mother and other relatives about the incident. As requested by the mother of Chengappa, P. Ws 1 and 4 went to meet Dr. Bopanna - P. W. 5 at Virajpet as he happened to be the headman of the Village. They could not find him at Virajpet and they were told that he had gone to his estate. He returned at about 5. 30 p. m. Then p. Ws. 1 and 4 informed him that the accused shot at Chengappa and killed him. Then Dr. Bopanna advised them to report the matter to the police. Accordingly, P. Ws. 1 and 4 went to Virajpet Rural Police Station at about 6. 00 p. m. The P. S. I.- P. W. 3 recorded the complaint of Somaiah - P. W. 1 as told by him as per Ex. P. 1 and obtained his signature as per Ex. P. 1a. On the Strength of Ex. P. l, p. W. 3 registered a case in Crime No. 169/83 under Section 302 IPC and submitted F. I. R. and Ex. P. 5 along with the original complaint ex. P. 1 to the Jurisdictional Magistrate at virajpet who received them at 7. 30 p. m. on the same day. Then P. W. 3 submitted copy of the F. I. R. to C. P. I. Ramachandraiah - p. W. 15 who immediately took up the investigation of the case. He recorded the statement of P. W. 4. at about 8. 00 p. m. on that day. When P. W. 15 was in the Rural Police station at Virajpet the accused appeared before him. During interrogation, the accused told the Circle Inspector that he had kept the revolverin his house and that he would produce it as per Ex. P. 14. Thereafter, the accused led P. W. 15 and the panchas, P. W. 6 and 12 to his house and produced thejevolver - M. O. 1 which had been kept beneath the pillow on the cot inside his house. M. O. 1 contained one empty cartridge - M. O. 10 and four live cartridges - m. O. 11. It was sealed and seized by the circle Inspector under Ex. P. 6. On 26. 7. 1983, at about 7. M. O. 1 contained one empty cartridge - M. O. 10 and four live cartridges - m. O. 11. It was sealed and seized by the circle Inspector under Ex. P. 6. On 26. 7. 1983, at about 7. 30 a. m. P. W. 15 secured panchas and held inquest proceedings over the dead body of Chengappa as per ex. P. 3 and seized M. Os. 2 to 8 under it. During the inquest, he examined the mother of the deceased, P. W. 11 - sister of the deceased, the brother of the deceased and others. He forwarded the dead body for post-mortem examination through P. W. 13. Dr. Nanje Gowda - P. W. 8 conducted postmortem over the dead body of the deceased -Chengappa and gave his Post Mortem report as per Ex. P. 9 stating therein interalia that the deceased had died due to shock and haemorrhage due to the injury to vital organ (lung) as a result of revolver shot injury. P. W. 13 produced M. Os 13 to 18, found on the dead body of the deceased and they were seized under Ex. P. 15. On 3. 8. 1983, P. W. 15 sent M. Os. 1,10,11,13 and 14 to the Ballistic expert through P. W. 14. Prabhakar - P. W. 9 who is the Ballistic Expert examined the said articles and gave his certificate as per Ex. P. 12. On 7. 9. 1983 the I. O. seized the licence - ex. P. 8 produced by the son of the accused under Ex. P. 7. That deceased - Chengappa died due to the bullet injury received by him on 25. 7. 1983 at about 2. 30 p. m. in the forest of Karthamotte is no longer in dispute before us. The dead body of Chengappa was found lying there and the inquest proceedings were held as per Ex. P. 3 which has been proved by p. Ws. 2 and 15. Dr. Nanje Gowda - P. W. 8 conducted the Post-mortem over the dead body of the deceased between 1. 00 p. m. and 2. 15 p. m. on 26. 7. 1983 and noticed the following external injuries on his dead body :- 1) An entry wound on the front of the chest on the medial line at the nipple level size of about 1 cm. , inverted edges, charred tissues around the wound round in shape. 00 p. m. and 2. 15 p. m. on 26. 7. 1983 and noticed the following external injuries on his dead body :- 1) An entry wound on the front of the chest on the medial line at the nipple level size of about 1 cm. , inverted edges, charred tissues around the wound round in shape. 2) An exit wound on the back of the right side of the chest below the right scapula, with everted edges. Blood around. Round shape measures 2. 05 c. m. He noticed the following internal injuries on his dead body: 1) Chest cavity contained blood and blood clots. A round shape opening on the manubrium sterne. Punctured on the front side conjested. Middle lobe of right lung was punctured and lacerated. Opening on the back side, conjested. Reddish blue. Bronchial vessels had been cut on the right side. A round shape opening on the back side of the right side of the chest. He has stated that the deceased had died due to shock and haemorrhage as a result- of injury to the lung as a result of revolver shot injury; that M. O. 1 can cause the said injuries and that the said injuries were sufficient in the ordinary course of nature to cause death. There is nothing elicited in his cross- examination which would cast doubt on his testimony. Hence, accepting his evidence we hold that the deceased died due to the injury sustained by him due to the bullet fired from the revolver resulting an injury to the lung. But the main point to be determined in this appeal is whether it is the accused who shot at the deceased with M. O. 1 and caused his death? ( 6 ) IN order to prove the same, the prosecution rely on the direct evidence of Somaiah - p. W. 1 and on the following circumstances :- (1) That the accused was seen running away with the revolver from the spot towards his house by Poonacha - p. W. 4; (2) That the accused surrendered himself before P. W. 15 at about 8. 00 p. m. on that day and told him that he would produce the revolver is he was taken to his house as per Ex. 00 p. m. on that day and told him that he would produce the revolver is he was taken to his house as per Ex. P. 14 and produced the revolver - M. O. 1 containing empty Cartridge - M. O. 10 and 4 live cartridges M. O. 11 which were seized under Ex. P. 6. (3) That Bamboo bush was found in the 'kadange' situated between the coffee Estate of the accused and the land where the occurrence took place as noted by the learned trial judge at the time of spot inspection as noted by him in his notes of inspection and in his Judgment. (4) That M. O. 10 was fired from M. O. 1 according to Ballistic Expert - P. W. 9 and there were signs of discharge in the barrel of the revolver when examined by P. W. 9 and a bullet fired from M. O. 1 can cause injuries on the person of the deceased according to the Doctor - P. W. 8. P. Ws. 1 and 4 have given evidence in terms of the prosecution case as stated above. There is nothing elicited in their cross- examination to show that they had any motive to falsely depose against the accused. Their conduct in immediately going and informing the relations of the deceased including his sister - P. W. 11 is most natural. Their evidence finds support from the medical evidence and the evidence of Ballistic Expert and other circumstances in the case. It is also corroborated by the conduct of the accused in voluntarily surrendering before p. W. 15 and producing the revolver M. O. 1 containing M. Os. 10 and 11 in pursuance of his statement as per Ex. P. 14. Mr. Kcmpanna, Amicus Curiae for the accused urged that the. delay in filing the complaint - Ex. P. 1 casts doubt on the testimony of P. Ws. 1 and 4. No doubt, there has been a delay of about three hours in filing the complaint. That has been explained by p. Ws. 1 and 4. According to them, they immediately went and informed the relations of the deceased at about 3. 00 p. m. That has been spoken to by the sister - P. W. 11 of the deceased. The said evidence of P. W. 11 has not at all been challenged in the cross- examination. 1 and 4. According to them, they immediately went and informed the relations of the deceased at about 3. 00 p. m. That has been spoken to by the sister - P. W. 11 of the deceased. The said evidence of P. W. 11 has not at all been challenged in the cross- examination. When once they have disclosed about the incident immediately to P. W. 11 the delay in filing the complaint loses all importance. More-over, as advised by the mother of the deceased, they went to meet dr. Bopanna P. W. 5 and told him after his return from the Estate at about 5. 00 p. m. about the incident and immediately went to the Police Station as directed by him and filed the complaint. Dr. Bopanna has supported them in that behalf. Hence, we are of the view that the delay in filing the complaint has been satisfactorily explained and we see no force in the said contention of Mr. Kempanna. According to the accused, he was taken from the club and he produced revolver as the Circle Inspector wanted to checkup the revolvers of the persons residing in the neighbourhood of the place of incident. But no such suggestion was put to P. W. 15 in his cross-examination. Hence, the say of the accused appears to be an afterthought. ( 7 ) MR. Kempanna, urged that P. W. 4 must not have accompanied the deceased and p. W. 1 to the forest on that day and he must not have been near the spot as he had not heard exchange of words between the accused and the deceased. P. W. 4 has stated that there was thick jungle inbetween the foot-path where he was standing and the place where the deceased was cutting the bamboo shoots. Under the circumstances, he must not have been able to hear the exchange of words between the accused and the deceased. P. W. 11 also has stated that p. Ws. 1 and 4 accompanied her brother -deceased - Chengappa for cutting bamboo shoots on that day. That aspect has not been challenged in her cross- examination. Therefore, we see no force in the said contention of Mr. Kempanna. The existence of the bamboo bush in a 'kadange' inbetween the boundary of the coffee Estate of the accused and the spot where the incident took place also probablises the prosecution version. That aspect has not been challenged in her cross- examination. Therefore, we see no force in the said contention of Mr. Kempanna. The existence of the bamboo bush in a 'kadange' inbetween the boundary of the coffee Estate of the accused and the spot where the incident took place also probablises the prosecution version. On seeing the deceased cutting the bamboo shoots, the accused must have gone to ask him as to why he was cutting the bamboo shoots there, and there must have been some alteration between the two leading to the incident. Regard being had to all the circumstances of the case, we are satisfied that the evidence of P. Ws. 1 and 4 substantially represents the truth, and their evidence coupled with the other circumstances as stated above proves beyond all reasonable doubt that it is the accused who shot at the deceased with his revolver - M. O. 1 and caused his death. This brings us to the question as to what is the offence committed by the accused. No doubt there was no serious motive for the accused to commit the murder of the deceased. The reason for the altercation was also trivial. Cutting of bamboo shoots by the deceased was the only reason. There was also no premeditation and the incident appears to have taken place in a sudden quarrel. But the weapon used by the accused is a revolver which is a dangerous and deadly weapon. He has shot at the deceased on his chest and the bullet has passed through the body of the deceased and it could not be traced. The injuries caused to the deceased were sufficient in the ordinary course of nature to cause death. Hence, looking to the nature of the injuries caused to the deceased, the vital part chosen and the weapon used by the accused his intention must have been to cause the death of the deceased. It is not suggested in the cross-examination of P. W. 1 as to what were the words used by the accused and deceased. The accused has also not stated the words used by the deceased. So, it cannot be said that he acted under a grave and sudden provocation. It is not the case of the accused that his act falls under any one of the exceptions to Section 300 IPC. The accused has also not stated the words used by the deceased. So, it cannot be said that he acted under a grave and sudden provocation. It is not the case of the accused that his act falls under any one of the exceptions to Section 300 IPC. Hence, we are of the view that the offence committed by the accused in causing the death of the deceased would be one punishable under. Section 302 IPC. But the question is whether in this appeal filed by the accused in the absence of the appeal filed by the State against the acquittal of the accused under Section 302 IPC, the conviction of the accused can be altered to one under Section 302 IPC and he can be sentenced accordingly. In exercising powers conferred by Section 386 (b) (2) Cr. P. C. which is clearly applicable to appeals against the convictions, this Court cannot in the absence of appeal by the State against the acquittal convert the order of acquittal into one of conviction. That is the view taken in Lakkan Mahto and Others v State of Bihar ( AIR 1966 SC 1742 ) (2) State of andhra Pradesh v Thadi Narayana ( AIR 1962 SC 240 ). Mr. Jadhav, learned High Court Government pleader, urged that this Court can exercise its power under Section 401 Cr. P. C. and enhance the sentence imposed on the accused by the trial Court. According to Section 401 (3) Cr. P. C. nothing in the said section shall be deemed to authorise the high Court to convert a finding of acquittal into one of conviction. So, even exercising the powers under Section 401 Cr. P. C. the conviction of the accused under Section 304 part II IPC by the trial court cannot be converted into one under Section 302 IPC. ( 8 ) IN the first part of the Judgment delivered on 15-9-1984 the learned Trial Judge has nowhere considered the question as to what was the offence committed by the accused. The point raised by him in the Judgment is whether the prosecution proves that it is the accused who shot at the deceased with the revolver - M. O. 1 and caused his death. No doubt, he has questioned the accused stating that he had been convicted under Section 302 IPC and what he had to say about the sentence. The point raised by him in the Judgment is whether the prosecution proves that it is the accused who shot at the deceased with the revolver - M. O. 1 and caused his death. No doubt, he has questioned the accused stating that he had been convicted under Section 302 IPC and what he had to say about the sentence. In the 2nd part of the Judgment he has considered the question of offence and has given a finding rightly or wrongly that the offence committed by the accused would be one punishable under Section 304 Part II ipc. and he has sentenced the accused to r. I. for 5 years. This clearly shows that the. accused was acquitted of the offence under section 302 IPC. There is no appeal by the state against the acquittal of the accused under Section 302 IPC. ( 9 ) ACCORDING to Section 354 Cr. P. C. among other things, the Judgment has to specify the offence of which and the Section of the Indian penal Code or other law under which the accused is convicted and the punishment to which he is sentenced. So, the first part of the Judgment without the sentence would not be the judgment within the meaning of section 354 Cr. P. C. In the second part of the Judgment, the learned trial Judge has clearly given a finding that the accused is held guilty under Section 304 Part-II IPC. He could have considered the question of offence in the first part of his Judgment. But as he had not done so, he was justified in considering it in the second part of the Judgment atleast. Hence, the sentence of five years R. I. for an offence punishable under section 304 Part-II IPC imposed by the trial court cannot be said to be grossly inadequate and it does not call for enhancement in exercise of our powers under Section 401 cr. P. C. In the result, the appeal is dismissed. --- *** --- .