I.D. DUA, J.
1. In this appeal be special leave the appellant Deedar Singh challenges his conviction and sentence of imprisonment for life under Section 302 IPC for the murder of one Kashmera Singh. The appellant, along with three others, Dhanna Singh, Jagat Singh and Bhagat Singh was tried in the Court of the Sessions Judge, Bijnor on two counts: (i) under Section 302, read with Section 34 IPC, (ii) Deedar Singh under Section 323 and the others under Section 323, read with Section 34 IPC Jagat Singh and Bhagat Singh were real brothers, being sons of Charan Singh. The three other co-accused of Deedar Singh are stated to be the latter's friends and neighbours. On June 1, 1963, at about noon there was a quarrel between Kashmera Singh, deceased, and Smt Mahendro, daughter of Deedar Singh in their village, Jamanwala. The trouble arose out of a dispute in regard to the right of passage from Kashmera Singh's house to the public road through a piece of land stated to be in Deedar Singh's possession. Kashmera Singh claimed the right of way through this passage to which Deedar Singh and his family members objected. During the quarrel on June 1, 1963, Kashmera Singh is said to have used filthy language towards Smt Mahendro and abused her. Smt Mahendro's mother later approached Gurdip Singh (PW 3), brother-in-law of Kashmera Singh and, appraising him of the incident, asked him to restrain Kashmera Singh from behaving in this manner. Gurdip Singh went to Kashmera Singh's house but finding him absent told Kashmera Singh's mother Smt Bal Kaur to ask her son not to behave in such manner. Jagat Singh and Bhagat Singh were also against Kashmera Singh because of some other dispute with him. According to the prosecution on the night of June 1, at about 8 or 9 p.m. when Kashmera Singh was lying on a cot in front of his chhapper the four accused persons went there with the common intention of murdering him. Deedar Singh, Dhanna Singh and Bhagat Singh, accused, were armed with lathis while Jagat Singh was armed with a ballam. They beat Kashmera Singh as a result of which he fell down on the ground. Smt Bal Kaur, mother of Kashmera Singh, Smt Amar Kaur, his wife and Amrik Singh, a 12 year old son of Kashmera Singh's sister saw the incident and raised an alarm. Smt Bal Kaur intervening tried to save Kashmera Singh but she was also given a beating by Deedar Singh. Gurdip Singh (PW 3) and another Gurdip Singh, son of Prem Singh, who was produced as court witness (CW 2) and who was in the house of Gurdip Singh (PW 3) on hearing the cries also reached the place of occurrence; so also did Ranjeet Singh (PW 6) and Ratan Singh (CW 3) who were at that time in the house of Har Charan Singh at a distance of about 50 or 60 yards. The trial court, believing the prosecution version, sentenced all the four accused persons to imprisonment for life under Section 302, read with Section 34 IPC. Deedar Singh was in addition sentenced to six months' rigorous imprisonment under Section 323 IPC and the other three accused persons were sentenced to similar sentences under Section 323, read with Section 34 IPC The sentences under the different counts were to run concurrently.
2. On appeal, the Allahabad High Court, giving benefit of doubt to Jagat Singh, Dhanna Singh and Bhagat Singh acquitted them but altered Deedar Singh's conviction from Section 302, read with Section 34 to one under Section 302 IPC. According to the High Court there was greater probability that Deedar Singh alone was responsible for causing all the injuries to Kashmera Singh as deposed by Gurdip Singh, son of Prem Singh (CW 2) and Ratan Singh, (CW 3). Jagat Singh, Bhagat Singh and Dhanna Singh were also acquitted of the offence under Section 323, read with Section 34 IPC. The High Court, however, said nothing about Deedar Singh's conviction under Section 323 IPC for causing injuries to Smt Bal Kaur.
3. In this Court Shri Hardev Singh, learned counsel for the appellant, strongly argued that it was not possible on the record to fix the blame for the injuries caused to the deceased solely on the appellant and in the absence of trustworthy evidence showing that Deedar Singh alone was responsible for causing the fatal injuries to the deceased his conviction alone, in face of the acquittal of the other three co-accused persons, is unsustainable in law.
4. The submission is unacceptable. The other co-accused were given the benefit of doubt by the High Court as the court witnesses supported the prosecution case only in respect of Deedar Singh, about whose complicity in the assault on Kashmera Singh resulting in his death, all the prosecution witnesses were agreed. The number and nature of injuries caused in the course of the occurrence were also considered by the High Court to be not inconsistent with the assailant being only one person. On this view the High Court felt that there was a greater probability Deedar Singh alone was responsible for causing Kashmera Singh's death and giving injuries to Smt Bal Kaur. This does not mean that the prosecution story is false; nor does it mean that Deedar Singh's conviction is based on mere probabilities and not on evidence which establishes his guilt beyond reasonable doubt. The greater probability, according to the High Court, lies in the other co-accused not being responsible for the death of Kashmera Singh and not in regard to Deedar Singh's guilt about which there is not the least doubt on the evidence led in the case. Even otherwise, the suggestion by the counsel that the mere probability of Deedar Singh alone being the murderer does not exclude the likelihood of his companions also being the participants in the crime cannot help him as Deedar Singh was by all accounts the prominent assailant. In any event, the High Court having on appreciation of evidence came to a positive conclusion that Deedar Singh is responsible for causing injuries to the deceased and to Bal Kaur it is not open to this Court in the present appeal to weigh the evidence over again to see for itself if Deedar Singh has committed the offence. The appellant's learned counsel tried essentially to re-agitate the question of appreciation of evidence for which no justification has been made out. The appeal fails and is dismissed.