DESAI, J. ( 1 ) THIS appeal by the State is directed against the order of acquittal passed by the learned VII Additional City Civil and sessions Judge, Bangalore City, in Sessions case No. 5/83 on his file. ( 2 ) THE respondent was the accused in the said case. He was tried for an offence punishable under Section 302 i. PC on the allegation that on 13-10-1982 at about 5-30 P M. in the shop of khader (P W -1) situate at No. 48, S. L. N. Charity Building, Kalasipalyam Main road, Bangalore, he committed murder of Rafi alias Mohamad Rafi, who was his colleague working in the shop of P. W.-1, by assaulting him with the knife (M. 0-7) with the intention of causing his death. ( 3 ) AS the accused denied the commission of the said offence, P. Ws-1 to 16 examined and Exhibits P-1 to P-23 and m. Os-1 to 9 were produced on behalf of the prosecution. ( 4 ) THE defence of the accused was one of total denial. No defence evidence was adduced. ( 5 ) DISBELIEVING the evidence of the solitary eye witness P. W-1 and the evidence regarding the other circumstances, the learned trial Judge acquitted the accused. Hence, this appeal by the State after obtaining leave. ( 6 ) THE prosecution case may be briefly stated as follows ; khader (P. W-1) is running a shop at no. 48, S. L. N. Charity Building, Kalasipalyam main Road, Bangalore, selling "samosas" in his shop. He had engaged the accused, the deceased, Hamza (P. W-8) and Narasimha Murthy (P. W-6) as servants for working in his shop for assisting him in preparing eatables like "samosas, Vadas" etc. The shop premises of p W-1 measured 30 x 20 feet and the shop had been divided by placing an almirah into two portions. In the front portion, P. W-1 was selling the eatables and in the rear portion, his servants were working in the act of preparing eatables about 15 days prior to the incident, there was a quarrel between the deceased and bakshu, the younger brother of the accused, and the deceased had assaulted the said Bakshu in the said quarrel. On that count, it is stated that there was ill-will between the eccubeg and the deceased. On that count, it is stated that there was ill-will between the eccubeg and the deceased. On 13-10-1982 at about 5-30 P. M. , p. W-1 was sitting in the front portion for selling eatables and the accused and the deceased were working in the rear portion. They were engaged in cutting vegetables, onions etc. P. W-6 had gone to a flour-mill for getting the dhal floured and P. W-8 had gone for taking his meals. At that time, P. W 1 heard a cry from the rear oor'ion of his shop to effect " (Master I am dying ). On hearing that, P. W-1 rushed to the rear portion and saw deceased rafi lying injured in a pool of blood and the accused standing there. On seeing him, Rafi told him pointing out at the accused. Then P. W-1 caught the accused who was trying to go out of the shop and with the help of the passers who collected there, an auto was stopped and in that auto, he took the deceased and the accused to the Victoria Hospital. The deceased was pronounced dead when he was examined by the Doctor in the emergency Ward. Then P. W-1 told the a. S. I. (P. W-11), who was working in the out-Post in the Victoria Hospital, that the accused Ameer had assaulted Rafi with a knife and had caused his death and handed over the accused to his custody. P. W-11 took the accused to his custody and informed the C. P. I. (P. W-16) over the phone about it. P. W-1 went to Kalasipalyam police Station, which had jurisdiction over the place of incident, and narrated the incident to the P. S. I. (P. W-13 ). P. W-13 got the complaint of P. W-1 reduced to writing as per Ex. P-1 by his subordinate. On the strength of Ex. P-1, he registered a case in Crime No. 733/82 and sent F. I. R. as per Ex. P-10 to the jurisdictional Magistrate. He rushed to the Victoria Hospital where P. W-16 was also there and had taken the accused into custody. P. W-16 took over the further investigation of the case from p. W-13. P,w-16 took the accused to the Kalasipalyam Police Station. He asked his subordinate to keep watch over the dead body of Rafi which was in the emergency Ward of the Victoria Hospital. P. W-16 took over the further investigation of the case from p. W-13. P,w-16 took the accused to the Kalasipalyam Police Station. He asked his subordinate to keep watch over the dead body of Rafi which was in the emergency Ward of the Victoria Hospital. He secured panchas and seized the bloodstained banian (M. 0-2) and the knicker (M. O-3) from the person of the accused under Ex. P-2 in the presence of panchas p. Ws-3 and 4. M Os-2 and 3 were sealed and the seal was given to the possession of P. W-3. Then he recorded the statements of P. Ws-2, 6 and 8. The accused volunteered to point out the scene and the knife. On 14-10-1982, p. W-16 held inquest proceedings over the dead body of Rafi, which was in the mortuary of the Victoria Hospital, as per Ex. P-3. M. Os-4 to 6, which were on the dead body, were seized. Then he handed over the dead body for P. M. examination along with the requisition. Then the accused led the C. I. and the panchas to the shop of P. W-1 and pointed out the spot. There blood was lying on the ground. The knife (M. O-7) and the blood-stained towel (M. O-9) were lying there. The blood-stained scrappings on the floor (M. O-8) were also seized under ex P-8. The accused was produced before the jurisdictional Magistrate and he was remanded to judicial custody. The sketch of the scene of offence was got prepared as per Ex. P-18. P. W-7 conducted the P. M. examination and gave his p. M. Report as per Ex P-6. P. W-16 sent the blood-stained articles M Os-2 to 9 along with P. W-12 to the Chemical Examiner and received the report of the Chemical Examiner and the Serologist as per ex. P-23. After completing the investigation, he submitted a charge-sheet against the accused for the said offence. ( 7 ) MR. S. S. Koti, the learned High court Govt. Pleader, took us through the evidence and urged that the reasons given by the learned trial Judge for disbelieving P W-1 are not at all proper and he ought to have accepted his (P. W-1 fs) evidence and convicted the respondent- accused. On the other hand, Mr. ( 7 ) MR. S. S. Koti, the learned High court Govt. Pleader, took us through the evidence and urged that the reasons given by the learned trial Judge for disbelieving P W-1 are not at all proper and he ought to have accepted his (P. W-1 fs) evidence and convicted the respondent- accused. On the other hand, Mr. Kulkarni, the learned counsel for the respondent- accused, urged that the learned trial judge, who had the opportunity of seeing the witnesses and marking their demeanour, has chosen to disbelieve P. W-1 and has given cogent reasons for the same and there is no reason to disagree with him. ( 8 ) THAT deceased Rafi died a homicidal death is clear from the evidence of dr. H. A. Somaiah (P. W-7), who conducted the post-mortem examination over his dead body. P. W-7 noticed the following injuries on the dead body of the deceased : 1) A reddish abrasion over the dorsum of right hand 1x1 cm. 2) Two abrasions 1 x 0. 5 cm each situated over right side chest one below the other 4 cms above right nipple on its medial side at a distance of 2 cm from each other. 3) A stab wound, horizontal, 16 cms below root of neck on right side of mid line, over back 2 cms from mid line, measuring 2 cms x 0. 8 cms directed inwards to the front. The medial end was blunt and the outer end was sharp. ( 9 ) ON dissection, P. W-7 found that injury No. 3 had passed through posterior chest wall, 7th intercastal space, right pleural cavity and had entered the upper portion of the back of right lower lobe of lung for 7 cms passing out at its base. The total depth was 12 cms. Pleural cavity contained clots of blood 5 cms in thickness and right lung was pushed forwards. He has stated that the said injuries were ante-mortem ; that the deceased had died due to shock and haemorrhage as a result of stab injury over the back of chest; that injury No. 3 was sufficient in the ordinary course of nature to cause death and it was fatal; that injury No. 3 had been caused by the knife (M. O-7) which had one edge blunt and one edge sharp ; and that Ex. P 6 is his P. M. Report. P 6 is his P. M. Report. There is nothing elicited in his cross-examination to discredit his testimony though he has been cross-examined at length. Hence, accepting his evidence, we have no hesitation in holding that deceased Rafi died due to the injuries sustained by him on 13-10-1982. ( 10 ) THAT the deceased was injured in the shop premises of P. W-1 also is clear from the evidence on record. Bloodstains were noticed in the rear portion of the said shop by P. W-16, who drew up panchanama of the scene of offence as per Ex. P-8. That fact is also not seriously disputed by the defence. ( 11 ) REGARD being had to the nature of injury No. 3 caused to the deceased and the nature of the weapon (M. O-7) used for causing the same, the intention of the assailant of deceased Rafi must have been to cause his death and the offence would be one punishable under section 302 I. P. C. ( 12 ) AS regards the connection of the accused with the commission of the offence, the prosecution rely on the evidence of P. W-1 and the evidence regarding the following circumstances: 1) The seizure of the blood-stained banian (M. O-2) and the knicker (M. O-3) from the person of the accused under Ex. P-2; and 2) that the stains on the knicker (M. 0-3) were of human blood and they were of the same blood group as that of the deceased. ( 13 ) BEFORE dealing with the said evidence, it would be useful to bear in mind the extent of the powers of this court in dealing with the appeal against acquittal. In Salim Zia v. State of Uttar pradesh ( AIR 1979 SC 391 ), while considering the said question, the Supreme court was pleased to observe thus. "1. The High Court in an appeal against an order of acquittal has full power to review at large the evidence on which the order of acquittal was founded and to reach conclusion that upon the evidence, the order of acquittal should be reversed. 2. "1. The High Court in an appeal against an order of acquittal has full power to review at large the evidence on which the order of acquittal was founded and to reach conclusion that upon the evidence, the order of acquittal should be reversed. 2. The different phraseology used in the judgments of the Supreme Court such as- (a) 'substantial and compelling reasons'; (b) -good and sufficiently cogent reasons' ; (c) 'strong reasons', are not intended to curtail or place any limitation on the undoubted power of an Appellate Court in an appeal against acquittal to review the entire evidence and to come to its own conclusion as stated above but in doing so it should give proper consideration to such matters as (i) the views of the trial judge as to the credibility of the witnesses ; (ii) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial : (iii) the right of the accused to the benefit of any real and reasonable doubt ; and (iv) the slowness of an Appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. " ( 14 ) KHADER (P. W-1) has given evidence in terms of the prosecution case as stated above. His evidence establishes the following facts : 1) that the accused, the deceased, p. W-6 and P. W-8 were working in his shop as servants and were assisting him in preparing "samosas, Vadas", etc. J 2) that at the time of the incident, the accused and the deceased were the only two persons working in the rear portion of his shop and he was sitting for selling the eatables in the front portion of his shop ; (3) that he heard the cries to the effect that "oandksandscs6' do. doottojo" (Master I am dying) ; (4) that on hearing the said cries, he went to the rear portion and saw the deceased lying injured in a pool of blood and the accused standing and the deceased told him "oand^js^ eatfc"' siredote) do, rfoo*" sa^o" pointing towards the accused. doottojo" (Master I am dying) ; (4) that on hearing the said cries, he went to the rear portion and saw the deceased lying injured in a pool of blood and the accused standing and the deceased told him "oand^js^ eatfc"' siredote) do, rfoo*" sa^o" pointing towards the accused. " (Ameer (accused) assaulted me and I am dying)" ; (5) that he caught the accused and took the accused and the deceased in an autorikshaw with the help of the persons gathered to the Victoria Hospital ; (6) that the deceased was examined by the Doctor in the Casuality Ward of the Victoria Hospital and doctor pronounced Rafi dead ; (7) that he told the A. S. I. (P. W-11) of the Victoria Hospital Out-Post that the accused had assaulted deceased rafi and had caused his death and handed over the accused to his custody ; (8) that P. W-11 after taking the accused to his custody, informed the c. P. I. (P. W-16) about it and P. W-16 went there and took the accused to his custody ; and (9) that P. W-1 went to the Kalasipalyam police Station and gave complaint as per Ex. P-1 to the P. S. I. (P. W-13), who registered a case and submitted F. I. R. to the jurisdictional Magistrate. P-1 to the P. S. I. (P. W-13), who registered a case and submitted F. I. R. to the jurisdictional Magistrate. ( 15 ) THE reasons given by the learned trial Judge for disbelieving P. W-1 are as follows : (1) that P. W-1 did not pour water into the mouth of the deceased ; (2) that there were no customers in the shop of P. W-1 at the time of the incident although, according to him, there used to be many customers in the evening in his shop ; (3) that P. W-1 was not able to identify the persons who gathered near his shop after the incident; (4) that none of the persons alleged to have been collected near the shop of p. W-1 were examined by the prosecution ; (5) that the A. S. I (P. W-11) had not made any entry in the Station House diary regarding what P. W-1 told him and regarding his taking the accused to custody; (6) that the Doctor in the Emergency ward of the Victoria Hospital, who examined the deceased and pronounced him dead, has not been examined to show what was the history given by p. W-1 to him; (7) that P. W-1, who is an illiterate man, could not have gone to the Kalasipalyam police Station without being told by somebody to go there ; (8) that the clothes of P. W-1 were not blood-stained although the injury of the deceased was profusely bleeding like water from the tap ; (9) that the eatables said to have been kept for sale in the shop of P. W 1 were not seized; (10) that there was delay in the seizure of the blood-stained clothes from the person of the accused ; and (11) that the motive alleged has not been proved. ( 16 ) ACCORDING to P. W-1. he took the injured in an auto to the hospital. This shows his anxiety in securing medical aid to the deceased. Under the circumstances, his conduct in not pouring water into the mouth of the deceased cannot be said to be improbable. ( 17 ) NO doubt, P. W-1 has stated that usually in the evening there will be many customers in his shop. That does not mean that there should be customers at every moment in his shop. Under the circumstances, his conduct in not pouring water into the mouth of the deceased cannot be said to be improbable. ( 17 ) NO doubt, P. W-1 has stated that usually in the evening there will be many customers in his shop. That does not mean that there should be customers at every moment in his shop. At the time of the incident, which must have lasted for a few minutes, there may not be customers. On that score alone, his evidence cannot be said to be improbable and untrue. P. W-1 must have been in an agitated mood after seeing the ghastly incident and he must have been confused especially when he had caught hold of the accused He has also anxious to secure immediate medical aid to the deceased. Under the circumstances, his conduct in not identifying the persons who had come to his shop after the incident also cannot be said to be improbable. When the deceased and the accused were taken to the hospital, the persons gathered might have disappeared. P. W-1 also could not have paid attention to mark those persons. Under the circumstances, the non-examination of those persons would not affect the testimony of P. W-1. ( 18 ) NO doubt, the A. S. I. (P. W-11) has not made an entry in the Station house Diary about P. W-1 handing over the accused to him and about his informing the C. P. I, over the phone. He has not been given an opportunity to explain the reason for not making the entry by either side. Any way, it must be said that P. W-11 has been negligent in the discharge of his duties and he ought to have made an entry regarding the same in the Station house Diary. But because of his negligence, the evidence of P. W-1 cannot be disbelieved. ( 19 ) THE Doctor in the Emergency ward of the Victoria Hospital merely examined the deceased and pronounced him dead. P. W-1 has stated that he did not tell the history to the Doctor. If the doctor had asked him and if he had given a different history, that would have been of use to the accused. If the Doctor fails to question him, P. W-1 cannot be blamed, especially as he is an illiterate witness. P. W-1 has stated that he did not tell the history to the Doctor. If the doctor had asked him and if he had given a different history, that would have been of use to the accused. If the Doctor fails to question him, P. W-1 cannot be blamed, especially as he is an illiterate witness. More over, it was not obligatory on the part of the Doctor to question p. W-1 about the history of the assault. ( 20 ) P. W-1 has stated that the injured was lifted by the persons who had collected and placed in the auto. Under the circumstances, it is just possible that his clothes were not blood-stained. No doubt, in the complaint (Ex. P-1), P. W-1 has stated that he lifted the injured. But in his evidence, he has stated that it is the persons who gathered who lifted the deceased and placed him in the auto. On that minor discrepancy alone, it would not be proper to disbelieve P. W-1. ( 21 ) THE learned trial Judge has observed that P. W-11 has not stated about the oral complaint alleged to have been given to him by P. W-1. But on going through the evidence of P. W-1, we find that P. W-1 has stated about it. This shows that the learned trial Judge has misread the evidence on record. ( 22 ) THE learned trial Judge has also failed to notice an important fact that the knicker (M 03) seized from the person of the accused was stained with human blood of the same group as that of the deceased. This important circumstance has been ignored by the learned trial judge. This unexplained circumstance shows that there was the hand of the accused in causing the injuries to the deceased. ( 23 ) ACCORDING to P. W-1, the deceased, the accused, P. Ws-6 and 8 were working in his shop. The said aspect has been admitted by the accused in his statement under Section 313 Cr. P. C. But according to the accused, as he went late to the shop of P. W-1 on 24-7-1982, p. W-1 had withheld his salary of Rs. 300/- and had asked him not to come to his shop for work thereafter. P. W-1 has denied the said fact. P. C. But according to the accused, as he went late to the shop of P. W-1 on 24-7-1982, p. W-1 had withheld his salary of Rs. 300/- and had asked him not to come to his shop for work thereafter. P. W-1 has denied the said fact. According to the accused, he had given a complaint about it in the Kalasipalyam Police Station and the Police had detained P. W-1 in respect of his complaint and P. W-1 had to spend a lot of money for being released by the police. P. W-1 has denied the said fact. If it was a fact, then the accused ought to have got his complaint produced in the case. That has not been done. No such suggestion was put to the P. S. I. (P. W-13) of the Kalasipalyam Police Station. P. Ws 6 and 8, who were the co-workers of the deceased and the accused, have denied the said suggestion. Hence, we are not satisfied that the suggestion of the accused has any force. ( 24 ) WHEN the accused and the deceased were the only persons working in the rear portion of the shop and when p. W-1 after going to the rear portion on hearing the cries, saw the deceased lying injured and the accused standing, it must be the accused and accused alone who caused the injuries to the deceased. The conduct nf P W-1 in taking the accused and the deceased to the hospital and handing over the accjsed to the custody of p. W-11 after the deceased was pronounced dead and lodging the complaint (Ex. P-1) in the jurisdictional Police Station amply corroborate his version. His evidence that the deceased pointed out the accused who was standing there and told him that he (accused) had assaulted him and that he was dying is also most natural under the circumstances. He has no reason to falsely implicate the accused. He is also not interested in the deceased. ( 25 ) THE seizure of the blood-stained knicker (M. 0-3) which is reported to be stained with the blood of the same group as that of the deceased hits the last nail in the coffin of the accused and proves beyond doubt that it is the accused and accused alone who caused the injuries to the deceased. ( 25 ) THE seizure of the blood-stained knicker (M. 0-3) which is reported to be stained with the blood of the same group as that of the deceased hits the last nail in the coffin of the accused and proves beyond doubt that it is the accused and accused alone who caused the injuries to the deceased. ( 26 ) THE learned trial Judge ought not to have made much of the delay of one-and-half hours in seizing the bloodstained clothes (M. Os-2 and 3) from the person of the accused, as the accused had to be taken from the Victoria Hospital Out Post to the Kalasipalyam Police station ; that arrangement had to be made for keeping watch over the dead body and that panchas had to be secured for holding the panchanama besides going through the formalities of arresting the accused. ( 27 ) NO doubt, the statement of the accused that he would point out the scene and the kinfe would be inadmissible in evidence as the same had, been mentioned in the complaint (Ex. P-1) and the Police had knowledge about the same. Even excluding that, the other evidence is sufficient to connect the accused with the commission of the offence. ( 28 ) P. W-6 has stated about the quarrel between the deceased and the brother of the accused. The learned trial judge has disbelieved P. W-6 on his admission that no complaint had been filed in that regard. In a petty quarrel, it is improbable that people will resort to filing complaints Even assuming that the prosecution has not been able to establish the motive, it is not going to affect the prosecution case, as, in this case, the evidence clearly establishes beyond doubt that it is the accused and accused alone who caused the injuries to the deceased. When the motive is a factor, which was within the knowledge of the accused and the deceased, when the deceased is dead and gone and the accused is behind the bars, the prosecution may not be able to collect the evidence regarding the same ( 29 ) THE learned trial Judge has not made any record of his remarks about the demeanour of the witnesses. His appreciation of the evidence on record is opposed to a reasonable appraisal of the same bearing in mind the relevant point or points sought to be established by the evidence. Under the circumstances, we are left with no option, in the interest of justice, but to step in and interfere with the acquittal to do justice in the case, as observed in Ravinder Singh v. State of haryana ( AIR 1975 SC 856 ). ( 30 ) THIS brings us to the question of sentence. The accused was aged about 19 years' old at the time of the incident. We are convicting him after reversing the order of acquittal passed by the learned trial Judge. Under the circumstances, we think the lesser sentence of imprisonment for life would meet the ends of justice. ( 31 ) IN the result, the appeal is allowed and the order of acquittal passed by the learned trial Judge is set aside. The respondent-accused is convicted for an offence punishable under Section 302 i. P. C. and he is sentenced to undergo imprisonment for life. The trial Judge is directed to issue warrant for the arrest of the accused and commit him to the Jail for serving out the sentence. --- *** --- .