Sikri, J. - (1.) This appeal by special leave was limited to the question whether the case comes under Section 302 of the Indian Penal Code. The case of the prosecution which has been accepted by the learned Sessions Judge and the High Court was, in brief, as follows:
(2.) On January 31, 1962, at about 2.30 P.M a fight took place between Dalip Kumar P. W. 12 and Harjinder Singh, appellant, near the water tap in front of a tin factory in Zamirwali lane, Delhi. Harjinder was apparently worsted in the fight and he then left the place holding out a threat that he would teach a lesson to Dalip Kumar. The appellant returned with his brother Amarjit Singh to the house of Dalip Kumar and shouted to Dalip Kumar to come out Mst. Tejibai opened the door of the house and asked the appellant and Amarjit Singh to go away, hut either these two or the appellant pulled Dalip Kumar out of the house into the lane and gave him beating near a lamp-post in the corner of Zamirwali lane. At that time the deceased Kewal Kumar who was the brother of Dalip Kumar, came and tried to intervene and rescue his brother. It is at this stage that the evidence is conflicting as to what exactly happened. According to one version. Amarjit Singh accused caught hold of Kewal Kumar and the appellant took out the knife and stabbed the deceased. According to the other version, given by Mohd. Ali, P. W. 5, this is what happened: "Dalip Kumar's brother holding Jinda accused asked him not to, fight. Jinda at that time took out the knife from his pocket and opened it with both his hands and then gave a blow with it under the belly and the upper portion of the left thigh. Amarjit Singh accused did not do anything."
(3.) In cross-examination he stated: "Jinda accused was holding Dalip Kumar from the collar of his shirt by his left hand. At that time Kewal Kumar was on right hand side of Jinda accused. When Jinda took out the knife and opened it with both his hands, Dalip Kumar and his brother Kewal were grappling with Jinda accused Jinda accused gave only one knife blow to Kewal Kumar Kewal Kumar was in bent condition when he was stabbed only once." After inflicting this injury the appellant ran away.;