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PETITIONER: S. VELAYUDHAN

       Vs.

RESPONDENT: KRISHNAN AND ORS.

DATE OF JUDGMENT:       01/04/1998

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                      J U D G E M E N T Nanavati ,  J.      The two  respondents were  convicted under  section 302 read with  Section 34  IPC for  causing death of Shanku. The trial court  based their conviction upon the evidence of PWs 1,2,3 and  4. The  High  court  after  reappreciating  their evidence  set   aside  the   conviction  and  acquitted  the respondents.      The High  Court in its judgement has observed that upto a certain  point, the  prosecution version  and the  defence version are  the same  and, therefore, the only question was whether the  deceased and  PWs 1  and 3 were the aggressors. After taking  into consideration  the fact  that all the eye witnesses were close relatives of the deceased and that they had not explained the injury on accused No.1, the High court came  to the conclusion that it was not proved  by the prosecution that  the respondents  were the  aggressors. The High Court  further   observed that out of the two versions, the version of the defence was more probable. Thus accepting the defence  versions, the High Court allowed the appeal and acquitted the respondents.      After scrutinising  the evidence,  we do  not find that the view  taken by  the High Court is unreasonable and calls for any  interference by  this court. However, we would like to say that the observation made by the High Court that even if the  prosecution evidence was believed, the accused could have been convicted only under Section 323 IPC and not under Section 302, does not appear to be correct.      Subject to this observation, this appeal is dismissed.