P. K. Chatterjee, for the appellant.H. J. Umrigar and B. H. Dhebar, for the respondent.The Judgment of the Court was delivered by IMAM, J.-This appeal is by special leave.The appellant was convicted under s. 304, Part I of the Indian Penal Code and sentenced to, imprisonment for life.He appealed to the Bombay High Court.According to the judgment of the High Court the appeal was admitted only on the point of sentence.The High Court reduced the sentence from imprisonment for life to 10 years' rigorous imprisonment.It was submitted on behalf of the appellant that the High Court could not, in law, admit an appeal only on the point of sentence and the appellant was entitled to have his appeal heard on the merits of his conviction as well.The evidence upon which the appellant was convicted was unsatisfactory and he was entitled to be acquitted.Shortly stated, the case of the prosecution was that the appellant had caused the death of Zina Hira on April 6, 1957, when the deceased was returning from an adjoining village to the village of his residence.The appellant met him on the way and accused him of having committed theft in the appellant's house which the deceased denied.Upon this the appellant attacked him with a stick which had iron rings round it.A number of blows were given by the appellant with this stick in consequence of which Zina Hira fell down.In our opinion, the form of the order admitting the appeal in the present case was invalid and the appellant could have insisted that since the appeal had not been summarily dismissed, the High Court should have heard his appeal on the merits as well.As the appeal was not heard on the merits, we considered whether the appeal should be sent back to the High Court for rehearing on the merits.We have, however, thought it fit to hear the appeal on the merits for ourselves.We, accordingly, heard the learned Advocate for the appellant on the evidence.It is clear to us from a perusal of the evidence that the case has been amply proved against the appellant.There was an eye-witness who saw the appellant assaulting the deceased with a stick.Bogha Jiwa also corroborated Keshav in this respect.None of these witnesses have any real motive to depose against the appellant.In addition to this evidence there was the dying declaration of the deceased as to who his assailant was.The other circumstantial evidence need not be referred to.It was urged on behalf of the appellant that the reason for the appellant assaulting the deceased could not be true as no reference was made to it in the First Information lodged by Keshav.Reference also was made to the evidence of the Police Officer Priyakant that no information of the theft had been lodged by the appellant at the thana.The appellant in his statement denied that the deceased had committed any theft in his house and the witness Karsan brother of the appellant had stated in cross examination that there had been no theft in their house.This witness was examined by the prosecution but was declared hostile and permission was granted by the Court to cross-examine him.It seems to us, however, that even if the story about the accusation of theft against the deceased made by the appellant was not stated in the First Information the omission is of little consequence because even 137 Keshav stated in the First Information that he ha( enquired from Bava Tapu as to how the quarrel ha( started.Merely because there was no information lodged about the theft at the police station, it doe not necessarily follow that the appellant could no have been suspecting the deceased.The denial of the appellant and of his brother cannot assume much.importance as it would be natural for them to den, any such thing.Apart from this even if the read cause for the assault may be obscure, if the evidenc is clear that the appellant assaulted the deceased, matters very little if the Court has not before it a verclear motive for the assault.As we have already said apart from Bava Tapu hesitating to admit that he was somewhat related to the deceased, there was no apparent motive for him to depose against the appellant in such a serious case as this.His conduct would show that he had, in fact, witnessed the assault because, immediately after the assault he went to the Police Patel Keshav and informed him that the appellant had assaulted the deceased with a stick.There is no reason to doubt the genuineness of the dying declaration.There is no good reason for supposing that the deceased would have accused the appellant falsely a there was no previous enemity established.It is also unlikely that he would let go his real assailant and accuse the appellant falsely.The dying declaration in corroborated by the evidence of the eye- witness Bava Tapu.It further receives corroboration from the recovery of the stick stained with human blood at the instance of the appellant which had been identified by Bava Tapu as belonging to the appellant.It is clear, therefore, that the evidence in the case which we have carefully examined and see no good reason to distrust, established beyond doubt that the appellant had struck the deceased several blows with a stick and thus caused his death.He was, therefore, guilty at least under s. 304 of the Indian Penal Code as found by the trial court.The reduced sentence imposed by the High -Court does not appear to be unduly severe' The appeal is, accordingly, dismissed.Appeal dismissed.

Sections cited: Section 419 in The Indian Penal Code, Section 304 in The Indian Penal Code, Section 417 in The Indian Penal Code, Section 420 in The Indian Penal Code