P.L Bhargava, J.:— This is an appeal by Mohammad Sharif and his own brother, Laiq Ahmad, residents of Kot Sharki in the town of Sambhal, district Moradabad. The charge against Laiq Ahmad was that he had, on the 9th June, 1948, at about 7 or 8 p.m, committed murder by intentionally causing the death of Badri Prasad, and thereby committed an offence punishable under section 302 of the Indian Penal Code, it was alleged that he had stabbed Badri Prasad with a knife while he was passing in front of his (Laiq Ahmad's) house in the company of his sons, Mahesh Chandra, Girish Chandra and Bishesh Chandra. Mohammad Sharif was charged under section 302/109, Indian Penal Code and also under section 392, Indian Penal Code. It was said that he had abetted the murder of Badri Prasad and forcibly removed currency notes of the value of Rs. 250 from the pocket of Mahesh Chandra. The learned Civil and Sessions Judge, who tried them, found Laiq Ahmad guilty and convicted him under the second part of section 304, Indian Penal Code and sentenced him to rigorous imprisonment for five years. He also found Mohammad Sharif guilty and convicted him only under section 392, Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs. 250 or in default of payment of fine to further undergo rigorous imprisonment for six months.

While admitting the appeal filed by Laiq Ahmad a learned Judge of this Court issued notice to him to show cause why the sentence imposed upon him be not enhanced; and that is the subject-matter of revision.

The occurrence, in connection with which the appellants were prosecuted, took place after nightfall on the 9th June, 1948. During the course of the occurrence Badri Prasad was fatally wounded. He was immediately removed to the hospital at Sambhal. Dr. Chimman Lal, the Medical Officer of the hospital at Sambhal, examined Badri Prasad and found a penetrating wound 3″ × ¾″ opening into the abdominal cavity in front of abdomen left upper part, some portion of intestine coming out of the wound and a cut ½″ long over the intestines, through which faecal matter had come out. He also found three incised wounds in front of the index, middle and ring fingers of the left hand and also three abrasions on the right side of the face, on the inner side of the right elbow and in front of the right chin upper part. In the opinion of the Medical Officer the abrasions were caused by friction against some hard substance while the other injuries had been caused by some sharp-edged weapon.

When the condition of Badri Prasad appeared serious, the Medical Officer called Shri Shamshad Ahmad, who was then the Tahsildar of Sambhal. He immediately reached the hospital and recorded the dying declaration of Badri Prasad at 8.30 p.m In this dying declaration the following version of the incident was given:

“It was about 7.30 or 8 o'clock when after closing my shop I was returning home along with my sons Mahesh Chandra, Girish Chandra and Bishesh Chandra. On the way in mohalla Kot near the post office and the stall of Kalian lies the house of Sharif, Hanif, Idris and Laiq.

Sharif caught hold, of the hand of my son Mahesh Chandra and, made him sit on the cot and said ‘as long as you will not pay my money you will not be able, to go.’ Mahesh said ‘you owe me money and I do not owe you any money.’ He then said ‘unless you pay my money you will not be able to go otherwise I will get you all killed.’ Laiq, Sharif, Hanif, Idris, Ismail, Kalian and Mushtaq caught hold of all four of us at once and Laiq brought a knife and stabbed me in my abdomen. I caught hold of the knife but the fingers of my left hand got cut. As soon as the knife pierced, the intestines from my abdomen came out. I at once went a little distance and after that I at in a tonga and came to the hospital. Sharif took out from the pocket of my elder son Rupees 250. The name of my elder son is Mahesh Chandra. When I was stabbed with the knife at that time two Punjabi men were there. The name of one of them is Munshi Lal but I do not know the name of the other. There were other persons also. When I started many persons had assembled there. It was dark when I was stabbed with the knife. In the dark I did not see what persons saw me being stabbed. I have made this statement while I am in my senses.”

The same story was repeated in the first information report, which was made by Mahesh Chandra at P.S Sambhal the same night at 9.30 p.m In the report Ram Murti, Prem Prakash and Nand Kishore were named among the witnesses of the occurrence.

Badri Prasad was removed to the hospital at Moradabad on the 10th June, 1948, where he died on the evening of the 11th June, 1948. The Civil Surgeon of Moradabad held post mortem examination on the body of Badri Prasad. He did not notice the abrasions which were found by Dr. Chimman Lal. He found:

“1. Stitched wound 3″ × ⅛″ by cavity deep in the left, hypochondriac region 2½″ from the middle line. There were five stitches of silk. They cut through the whole thickness abdominal wall, the left part of the omentum and the transverse colon. The transverse colon had a stitched wound 1½″ × 1⅓″ with three stitches on its front surface at the site of the wound.

2. Incised wound 1″ × ½″ bone deep on the palmer surface of the digit, the left index finger.

3. Incised wound 1½″ × ⅓″× skin deep on the palmer aspect of the pronominal digit of the left middle finger.”

He also found one pound of liquid blood in the abdominal cavity. In his opinion the death was due to shock and haemorrhage from the abdominal wound.

S.I Moti Ram, who was present when the first information report was lodged, started the investigation and recorded the statements of some of the witnesses. There was a communal not at Sambhal on the 12th June, 1948, and the sub-inspector got busy in that connection. He completed the investigation in due course and the appellants were prosecuted.

In the committing magistrate's court the appellants denied having committed the offences with which they were charged and alleged that they had been falsely implicated on account of enmity. Laiq Ahmad added that since the 15th March, 1948, he was on leave on account of illness; thereby suggesting that he could not have participated in the attack on Badri Prasad. In the Court of Session Laiq Ahmad further stated that there was enmity between Badri Prasad and Mohammad Sharif, who used to work for Kanti Devi, the daughter-in-law of Badri Prasad, and that Badri Prasad and his sons suspected that Mohammad Sharif had illegal connection with Kanti Devi, although that was not a fact. He also stated that there was some enmity between them in connection with the execution of a mukhtar-nama which had been executed by Kanti Devi in favour of Mahesh Chandra but was subsequently cancelled. Mohammad Sharif mentioned another enmity arising out of the business which was carried on by him in partnership with Girish Chandra, the son of Badri Prasad, and which had to be dissolved on account of other enmities.

The learned Sessions Judge held that Laiq Ahmad had stabbed Badri Prasad in the manner alleged by the prosecution and that Mohammad Sharif had forcibly removed a sum of Rs. 250 from the pocket of Mahesh Chandra. He further held that Laiq Ahmad had no intention of causing the death of Badri Prasad or to cause such injuries which were in the ordinary course of nature sufficient to cause his death, and that the case did not fall within the purview of section 300, Indian Penal Code. In his opinion when Laiq Ahmad inflicted the injuries found on the person of Badri Prasad he knew that his act was likely to cause his death. Accordingly, he convicted and sentenced the appellants as stated above.

The case for the prosecution rested upon the dying declaration and the oral evidence consisting of the statements of Mahesh Chandra, Prem Prakash, Nand Kishore and Munshi Ram, who claim to be the eyewitnesses of the occurrence. Learned counsel for the appellant has contended that the dying declaration should not have been relied upon because it contained obviously false statements, it shows that an attempt has been made to rope in all the brothers of the appellant and certain other persons, it contains interpolations, which throw doubt on its genuineness, and it does not mention the names of witnesses.

The statement alleged to be false is to the effect that Laiq, Sharif, Hanif, Idris, Ismail, Kallan and Mushtaq had caught hold of Badri Prasad and his three sons and Laiq had brought a knife and stabbed him in the abdomen. There is evidence on the record to show that Badri Prasad was accompanied by his three sons and in order to overpower these four persons the presence of a larger number of persons was natural. It is, therefore, not possible to say that this statement of Badri Prasad in the dying declaration was untrue. It is true that the other witnesses have not spoken about all these persons catching hold of Badri Prasad and his three sons. But this discrepancy is not sufficient to discard the dying declaration, which otherwise appears to be perfectly natural and straightforward and stands corroborated by the medical evidence. For instance, it is stated in the dying declaration that Badri Prasad caught hold of the knife and his fingers of left hand were cut. As already pointed out the Medical Officer found three incised wounds on the fingers of the left hand. The statement in the dying declaration that Badri Prasad was stabbed and his intestine had come out is also borne out by the medical evidence. The learned Sessions Judge has found as a fact, and the finding is borne out by the evidence on the record, that Mohammad Sharif had taken out Rs. 250 from the pocket of Mahesh Chandra. In this respect also the dying declaration is supported by the other evidence on the record. The truthfulness of the dying declaration would be evident from the fact that Badri Prasad named only one witness Munshi Lal and did not give the names of the other persons, who were present there. If there had been any tutoring or consultation before the dying declaration was recorded the names of the other witnesses, who were mentioned in the first information report, would have also been there. The statement that in the darkness Badri Prasad did not notice who had witnessed the assault on him is another straightforward statement.

The second criticism namely, that Badri Prasad made an attempt to rope in all the brothers of the appellant and other persons, is also without any force. As already pointed out Badri Prasad was accompanied by his three sons and there must have been a larger number of persons when he was attacked. The presence of the brothers of the appellant when the incident had taken place in front of their house was only natural.

As regards the interpolation, which has been pointed out to us, there can be no doubt that it is in the handwriting of the Tahsildar, who wrote down the dying, declaration. The dying declaration was read out to the Tahsildar and he verified its correctness. The Tahsildar was not cross-examined at all and there was no suggestion made at any time that there has been any interpolation in the dying declaration as recorded by the Tahsildar. The dying declaration was read over to Badri Prasad and the addition, which suggests the presence of other persons at the time of the occurrence, appears to have been added at the instance of Badri Prasad himself at that very time.

The omission of the names of the witnesses is a factor which proves the genuineness of the dying declaration and does not affect it adversely. It goes to show that no attempt was made to mention anything in the dying declaration which Badri Prasad had not seen himself. We, therefore, see no reason to doubt the genuineness of the dying declaration or to discard the same.

Learned counsel for the appellant made an attempt to show that the oral evidence produced on behalf of the prosecution to connect the appellant with the crime was unreliable. Mahesh Chandra is the son of Badri Prasad and he is the man who was caught and robbed. Prem Prakash, Nand Kishore and Munshi Ram were named as witnesses of the occurrence in the first information report, which was made without any delay. Munshi Ram was mentioned in the dying declaration also. It was pointed out that in the dying declaration Munshi Lal was mentioned while the person examined was Munshi Ram. That, however, makes no difference. The person, who was described as Munshi Lal in the dying declaration, is a Punjabi and Munshi Ram, who was produced by the prosecution, is also a Punjabi refugee. There can be no doubt whatsoever about the identity of the witness. It was pointed out that when the incident took place it was dark and the witness might not have been able to see the assailants. It appears from the evidence that in Sambhal there is electric light and there was an electric lamppost not far away from the scene of occurrence. Mahesh Chandra was accompanying Badri Prasad and in fact he was the person with whom the dispute began. Consequently, he must have been in a position to see the assailants.

Munshi Lal or Munshi Ram was the person, whom even Badri Prasad was able to recognize. He lived at a distance of about a furlong from the scene of occurrence. Prem Prakash was also accompanying Badri Prasad and had just stayed behind to purchase betels from a shop closeby. Nand Kishore was also not far away when the dispute was going on and the incident took place. So, they must have reached the scene of occurrence and seen the assailants. It was the month of June and the incident had taken place between 7.30 and 8 p.m Therefore, the witnesses could easily recognize the appellant, who was known to them.

It was suggested on behalf of the appellant that there was a dispute between Badri Prasad and Mohammad Sharif. We are inclined to think that dispute was mainly responsible for the attack on Badri Prasad. The whole incident was deposed to by Badri Prasad in his dying declaration and the witnesses have merely repeated the same story. Consequently, there is no force in the suggestion that on account of the enmity between Badri Prasad and Mohammad Sharif Mahesh Chandra has come forward to make a false statement. In any case, Munshi Lal and other witnesses, who had seen the occurrence had no particular reason to falsely implicate the appellant.

The learned Sessions judge believed the oral evidence; and, after going through the same, we see no reason whatsoever to take a different view. In our opinion, therefore, the appellant was rightly found guilty.

Learned counsel for the complainant has contended that the appellant should have been held guilty under section 302, Indian Penal Code. The learned Sessions Judge has observed in his judgment:

“It cannot, however, be forgotten that the accused hit Badri Prasad an old man with a dangerous weapon. He hit him on a vital and vulnerable part of the body. He hit him with such a force that the knife cut through the whole thickness of the abdominal wall and also the left part of the omentum and the transverse colon. A person who stabs another on the stomach with such force, must in my opinion be held to have acted with the knowledge that his act is likely to cause death.”

He further added that there was no previous enmity or pre-meditation and it was obvious that Laiq Ahmad had no intention of causing death of Badri Prasad or of causing such injury which was sufficient in the ordinary course of nature to cause his death and that he had stabbed Badri Prasad in a fit of momentary impulse without any pre-meditation and without any intention of causing death or causing such bodily injury as was likely to cause death.

The learned Sessions Judge recognized the serious nature of the attack, which was made by a dangerous weapon; but he failed to realize that when a person stabs another person, more especially an old unarmed person, with a knife or any other sharp-edged cutting weapon on a vital part of the body, like the abdomen, he obviously intends to cause death or to cause such bodily injury as is sufficient in the ordinary course of nature to cause death; and he would be guilty of murder as defined in section 300, Indian Penal Code. A similar intention must be attributed to Laiq Ahmad who stabbed Badri Prasad with a knife in the brutal manner pointed out by the learned trial Judge.

The present case is not covered by any of the exceptions mentioned in section 300, Indian Penal Code. The learned Sessions Judge has pointed out that there was no previous enmity or pre-meditation on the part of Laiq Ahmad, who seems to have acted in a fit of momentary impulse and, even if we assume that he acted upon a sudden quarrel between his brother and Mahesh Chandra, in order to bring the case within exception 4, mentioned in the said section, it had to be established that he did not take any undue advantage or acted in a cruel or unusual manner. We, however, find that in attacking an unarmed person who was trying to end quarrel, Laiq Ahmad did take undue advantage and, having regard to the manner of the attack, there can be little doubt he acted in a cruel manner. In such a case, it would be wrong to say that he merely acted with the knowledge that his act was likely to cause death and the offence committed by him fell within the purview of the second part of section 304, Indian Penal Code.

Laiq Ahmad was, therefore, really guilty of an offence punishable under section 502, Indian Penal Code. The learned Sessions Judge having acquitted him of that offence and he having been called upon merely to show cause why the sentence imposed upon him under part two of section 304, Indian Penal Code, be not enhanced the question arises whether this Court has got the power to convert the finding of acquittal under section 302, Indian Penal Code, into a finding of conviction under that section and to enhance the sentence imposed upon him.

The powers exercisable by an appellate court, while dealing with an appeal from an order of acquittal as well as from a conviction, are set out in clause (1) of section 423 of the Code of Criminal Procedure. The appeal before us is not against an order of acquittal; it is an appeal against a conviction. In an appeal from conviction the appellate court may—

(1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a court of competent jurisdiction subordinate to such Appellate Court, or committed for trial; or

(2) alter the finding, maintaining the sentence, or with or without altering the finding, reduce the sentence; or

(3) with or without such reduction and with or without altering the finding, alter the nature of the sentence, but, subject to the provisions of section 106, sub-section (3), not so as to enhance the same.

In the present case, Laiq Ahmad has been found not guilty and acquitted of the offence punishable under section 302, Indian Penal Code and lie has been found guilty under section 304 part two, and sentenced to rigorous imprisonment for five years. The Court has the power to reverse the finding of conviction and sentence and acquit him. The Court has also got the power to alter the finding, whether of acquittal or of conviction, but that power has to be exercised subject to the limitation that the sentence must not be enhanced. The power to alter a finding of acquittal implies the power to convert it into one of conviction and the power to alter a finding of conviction implies the power to alter the conviction under one section to another. Here we are asked to alter a finding of acquittal into one of conviction under section 302, Indian Penal Code. We have no power to do so, as it is not possible for us to alter the finding, maintaining the sentence. If we set aside the finding of acquittal and record a finding of conviction under section 302, Indian Penal Code, the sentence will have to be enhanced to death or transportation for life. Consequently, under section 423 Criminal Procedure Code, we cannot alter the finding of acquittal recorded in favour of Laiq Ahmad. There is no other provision of law under which in an appeal from a conviction we have the power to convert a finding of acquittal into one of conviction. We may alter the conviction under part two of section 304 to one under part one of the same section, but we will have to maintain the sentence.

The view which we have taken is supported by a Full Bench decision of this Court in King-Emperor v. Zamir Qasim. In that case the question arose whether a court of appeal was empowered under section 423(1)(b)(2) of the Code of Criminal Procedure to alter a finding of acquittal into one of conviction. That question was answered in the affirmative by a majority of three to two. Sir Iqbal Ahmad, C.J, who delivered the leading judgment in that case, held that—

“an appellate court is, subject to the other provisions contained in the Code, empowered under section 423(1)(b)(2) to alter a finding of acquittal into one of conviction even though no appeal has been preferred by the Provincial Government. This power is however, subject to the condition that the appellate court cannot enhance the sentence imposed by the trial court”

Therefore, as a court of appeal, this Court has no power, in the present case, to convert the finding of acquittal into one of conviction under section 302, Indian Penal Code.

Section 439 of the Code of Criminal Procedure empowers the High Court to enhance the sentence in exercise of its revisional powers; but, as pointed out by their Lordships of the Privy Council in Kishan Singh v. King Emperor, the High Court, while dealing only with the application for revision, has no jurisdiction to convert the trial court's finding of acquittal on the charge of murder into one of conviction of murder.

Laiq Ahmad having filed an appeal and the Court having issued a notice for enhancement of sentence, the question arises whether, in exercise of its appellate jurisdiction coupled with its revisional powers, the High Court can convert the finding of acquittal into one of conviction and enhance the sentence. This question was raised before the Full Bench in Zamir Qasim's case, but no opinion was expressed thereon. Dar, J. in his judgment referred to an unreported decision of this Court in Sia Ram v. King Emperor(2) and to a reported decision in Moti Ram…Applicant; v. King-Emperor…Opposite Party.. The view expressed in the unreported decision was that the power to alter a conviction so as to include an acquittal exists, but the two powers of the High Court—appellate and revisional—cannot be combined to prejudice the accused. In Moti Ram's case, Allsop, J. has expressed the view that in exercise of appellate powers a lighter sentence cannot be changed into a more serious offence of which the accused had been acquitted. As we have already seen, the High Court, in exercise of its appellate powers, has no power to alter a finding so as to enhance the sentence imposed by the trial court and in exercise of its revisional powers the court is empowered only to enhance the sentence. The legislature could never have intended that the two powers should be combined and exercised simultaneously. There may be a case where the High Court, having examined the record of a criminal proceeding brought to its notice by an appeal from the conviction therein, may call upon the appellant to show cause why the sentence imposed upon him be not enhanced, and having heard and dismissed the appeal, may proceed to enhance the sentence in exercise of its revisional powers, although precluded by section 423, Criminal Procedure Code, from doing so in the appeal. The distinction between the powers exercisable under section 423 Criminal Procedure Code and section 439 of the same Code were thus explained by their Lordships of the Privy Council in Chunbidya v. King Emperor:

“The powers relating to appeals under section 423 of the Criminal Procedure Code are given to the appellate court, and the appellate court may include a court subordinate to the High Court, and the appellate court as such has no power to enhance the sentence, differing from the provision which was in the old Criminal Procedure Code of 1872. On the other hand, the powers of enhancing of sentence in revision are given to the High Court alone and the powers of revision are given to the High Court in the case of any proceeding the record of which has been called for by itself or which has been reported for orders or which otherwise comes to its knowledge.”

In the case before the Privy Council the appellant had been convicted by the Sessions Judge under section 302, Indian Penal Code and sentenced to transportation for life. The appeal preferred by the appellant was dismissed and the High Court after issuing notice to the appellant to show cause why the sentence be not enhanced had, in exercise of its revisional powers, enhanced the sentence and sentenced him to death. There it was Held that the High Court had the power to do so.

We therefore, respectfully agree with the view expressed by Allsop and Verma, JJ. in the unreported decision cited above. Accordingly; we hold that this Court has no power to alter the finding of acquittal recorded under section 302, Indian Penal Code and to record a conviction under that section. We undoubtedly have got the power to reverse the finding of conviction recorded under section 304, Indian Penal Code and to order a retrial, but we do not propose to adopt that course, because Laiq Ahmad was only called upon to show cause why his sentence be not enhanced, and not to show cause why a retrial should not be ordered. We, therefore, propose to maintain the finding of conviction under section 304, part two of the Indian Penal Code, and to enhance the sentence in exercise of our revisional powers.

Learned counsel for Laiq Ahmad contended that the appellant was a government servant and not in a fit state of health when he is said to have committed the, crime, and that he is a young man of 23 and will lose his job; consequently the sentence imposed upon him ought not to be enhanced. As far as Laiq Ahmad's losing his job is concerned, it is immaterial whether we maintain the sentence already imposed upon him or enhance it; he will lose his job in any case. The appellant has already attained an age when a man should be able to know the nature and consequences of his act. The appellant was not suffering from any serious disease at the time when he committed the offence. The learned trial Judge has rightly pointed out that it is not possible to take a lenient view of the act of Laiq Ahmad, inasmuch, as he made, an unprovoked attack on Badri Prasad an old man who was unarmed and was trying to avoid the dispute by asking his son to go away. Having regard to the, nature of the offence committed by the appellant, the sentence imposed upon him is wholly inadequate and it must be enhanced.

As, far as Mohammad Sharif is concerned, we find that there is ample evidence on the record to justify his conviction. We, therefore, see no reason to interfere with his conviction or the sentence imposed upon him.

The appeal filed by Mohammad Sharif and Laiq Ahmad is dismissed; and, in exercise of our revisional powers, we enhance the sentence imposed upon Laiq Ahmad under section 304, Indian Penal Code part two, from five years to ten years' rigorous imprisonment.

We further direct that out of the fine imposed upon Mohammad Sharif, if realised, a sum of Rs. 250 be paid to Mahesh Chandra, the complainant.

Mohammad Sharif is on bail. He will surrender at once and serve out the sentence imposed upon him.

Appeal dismissed.