1. The accused and the deceased were Bhils, who lived with their families in adjacent -houses in the village of Visrampura.
2. On February 23, 1923, both the accused and the deceased with their wornan-kind went from Visrampura to the village of Sandheli in order to do some shopping. After the shopping the women came home-but aceeused and deceased remained behind to drink. They both drank and that is deposed to by the liquor shop-keeper Ganesh Harakha Ex. No. 7. They were both seen drunk and quarrelling in Sandheli. This quarrelling was deposed to by the witness J)adamia Nauumia Ex. 9, who saw them between the Musjid and his house. The accused had bought a pair of shoes, and witness Ex. 9 saw the deceased snatch the shoes from him, and when the accused asked for the return of the shoes the deceased told that he would not return them unless accused supplied him with more liquor. This was the occasion of the quarrel, and there is curious corroboration of this in the fact that this new pair of shoes were found tied round the corpse of the deceased. After this quarrel in Sandheli, the accused and the deceased were seen going towards Visrampura from Sandheli by witness Ex. 8, who says they were drunk and abusing each other.
3. That night the accused came back to the village alone. When he came back alone he gave no information as to what had happened to the deceased either to his own wife or to the wife of the deceased, who came to make enquiries.
4. The next moreing, February 24, the wife of the deceased sent her son and the deceased's father to look for him. They found the corpse of the deceased lying on the road-side not far from the village. The deceased had evidently been murdered. There were wounds on the head, and the skull had been, crushed. The father stayed with the corpse and the son came back and informed his mother. The mother reported the-matter and later at about 10 A.M. that morning, the accused went to the Police Patel and made a statement to the effect that the deceased had been killed by somebody. The Patel went with the accused to the Head Constable. The Head Constable noticed that the accused had abrasions on his body and bloodstains on his dhotar. The Head Constable made a Panchnama ' about the blood-stains on the dhotar of the accused and the abrasions on his body and went with the accused, who showed him the place where the corpse was lying.
6. Later that day the Sub-Inspector searched the house of the accused and found there a blood-stained coat and a pair of old shoes on which also there were spots of blood. In the evening the accused made a statement in consequence of which the Police searched his house and found an axe lying in a bundle of wooden lumber.
7. The accused was then arrested and before the Committing Magistrate he said that he was coming back from Sandheli with the deceased when four men who were lying in ambush attacked them, striking the deceased with sticks, and that he then ran away home and gave no information because he was afraid of doing so.
8. Now the Sessions Judge attaches no importance to the fact of the axe having been found in the house of the accused, because there were no blood-stains on that axe.
9. He also attaches no importance to the old shoes found bloodstained in the house of the accused because these shoes did not fit him.
10. Conceding these two points what of the blood-stained coat and the blood-stained dhotar? The blood-stained dhotar was attached at the same time that the abrasions on the body of the accused were noticed. It is difficult to understand why the Sessions Judge believes the one and not the other. If the accused had been drunk and brawling the night before, it is extremely probable that he would have abrasions on his body and when a Bhil who has been recently drinking comes to report a murder what more likely than that the Polige should look, at him critically.
11. These abrasions coupled with the blood-stained dhotar and the blood-stained coat which the Sessions Judge also finds were found in the house of the accused, raises a strong presumption of the guilt of the accused. With these, circumstances must be connected the fact that he was last seen with the deceased, that he had been quarrelling with the deceased the evening before; that when he came home he gave no explanation as to what became of the deceased; that he takes no action the next morning till 10 o'clock; and that the explanation he gives is an explanation, which cannot be true. It cannot be true that the deceased was beaten to death by four persons, for there were no injuries except on the head and if there had been such an attack the accused would certainly have raised an alarm on coming home. These facts form a chain of circumstantial evidence which can lead to no other conclusion but that of his guilt.
12. The Sessions Judge in his judgment of acquittal fails to consider the conduct of the accused and he suggests that the stains of human blood found in the clothes of the accused may have been caused at the time when the accused and the deceased were attacked by other persons. It is wildly improbable that the accused if innocent should have been so near the deceased as to get splashed with blood. It is true no witness says the accused had an axe but it is not established that an axe was used at the murder.
13. It is said that we should not interfere in an appeal against acquittal unless we consider the lower Court's appreciation of the evidence is perverse. But the correct rule is that as to appreci-tion of evidence there is no difference between an appeal from conviction and an appeal from acquittal. It is true that the Allahabad High Court in the eases of Empress of India v. Gayadin I.L.R. (1881) All. 148 and Queen-Empress v. Robinson I.L.R. (1894) All. 212 goes the length of saying that the High Court should not interfere unless there has been an egregious failure of justice. But they have been practically overruled by the same High Court in Queen-Empress v. Prag Dat I.L.R. (1898) All. 459 and we think the view taken by the Bombay, Calcutta and Madras High Courts in Queen-Empress v. Karigowda I.L.R. (1894) 19 Bom. 51; Queen-Empress v. Bibhuti Bhusan Bit I.L.R. (1890) Cal. 485 and Re Sinnu Goundan I.L.R. (1914) Mad. 1028 is the correct one. The Code makes no distinction between an appeal from an acquittal and an appeal from a conviction. In an appeal from an acquittal if the Court thinks the lower Court has taken an erroneous view of the evidence it has no jurisdiction to refuse to convict. The, power of appeal under Section 417 is one that should be exerced sparingly by Government. But the discretion to exercise that right to appeal appertains to Government and is not subject to the control of the Court. I have no doubt as to the guilt of the accused and would reverse the acquittal and convict him under the first part of s 304, Indian Penal Code.
14. I agree that this acquittal should be reversed. The circumstantial evidence in this case is so strong that in my opinion the learned Sessions Judge erred in holding that the prosecution had failed to prove the accused's complicity in the crime charged against him. The fact of the new pair of shoes that the accused had bought in Sandheli being found on the deceased supplies strong corroboration to the evidence of the witness Nanumiya as to his having seen the accused and the deceased quarrelling and the deceased snatching the shoes away from the accused. The explanation given by the accused in the Sessions Court for the shoes being found on the deceased is that the latter had purchased them under a promise to pay later, but this is obviously very improbable. Having regard to the accused's admission that he was with the deceased at the time he met his death and the circumstantial evidence against him, I think the only reasonable conclusion is that he dealt the blows which resulted in the deceased's death.
15. No doubt there is no direct evidence that the accused had with him a hatchet, such as it is suggested was used for the commission of the offence. But it is not established that the blows were given with a hatchet and supposing one was used, it does not seem to me improbable that the accused may have been carrying one tied up round his waist, so that it would not be observed, and the fact that an axe with a broken handle was found concealed in his house would be another piece of circumstantial evidence against him.
16. PER CURIAM. Considering the circumstances of the cane and the fact that the offence was committed after some provocation and in a drunken brawl, we sentence the accused to suffer seven years' rigorous imprisonment under Section 304 of the Indian Penal Code.