Sikri, J. - (1.) The principal question which arises in this appeal by special leave is whether on the facts as found by the High Court the appellant is guilty under Section 323 or Section 325 or 304, Part II, I P.C. The learned Additional Sessions Judge convicted the appellant under Section 304(1), I P.C., and sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 250/- in default to suffer further rigorous imprisonment for two months.
(2.) The High Court convicted the appellant under Section 304, Part II, I.P.C. and sentenced him to rigorous imprisonment for three years. The High Court set aside the sentence of fine.
(3.) The relevant facts as found by the High Court and as appearing on the record are as follows : At about 4.30 p.m. on August 11, 1965, the deceased, Shankar, was passing by, the station road accompanied by Mohanlal Gujarathi, P.W. 2. when they came near the shop of the appellant-hereinafter referred to as the accused which is at a distance of about 20 feet from the Station Road, the deceased uttered ,Kojtn Hui bonduk Kiski Aawaj Hat Aajao" Hearing this the appellant came out of the shop and warned the deceased not to give abuses and asked him to go ahead. In spite of this the deceased seems to have continued abusing the accused, Three-witnesses were produced by the prosecution. The High Court found as follows : __________ "In spite of some minor contradictions and minor discrepancies, it is clear from the evidence, of these eye witnesses that the deceased and Mohan Gujarat were passing by the Station Road and when they came near the shop of the accused the deceased started abusing the accused. It also appears that the deceased was under the influence of liquor, it is also clear from this consistent evidence that though the deceased was asked by the accused to go ahead, the deceased still stood firm and continued abusing the accused. t is also clear that the accused then came from his shop and gave blows to the deceased and the deceased fell down with his face towards the sky and immediate result noticed by all the witnesses was that the deceased became unconscious and his mouth and ear started bleeding." The High Court further said that it may be that some small weapon was available to the accused and he might have used it but it was a matter of speculation. The High Court, therefore, concluded that it was as a result of the act of pushing by the accused that deceased fell down and became unconscious and blood started oozing from his mouth and ears.;