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The principle of the English Case does not, therefore, apply to the facts in the instant case and this was recognised by .Niyogi, A. J. C. who observed that this principle was stated in connection with a case where the Legislature did not make an provision for enforcing the Appellate Court's judgment, but he observed that the same principle will apply with equal force to a case where the Appellate Court is unable to enforce the powers conferred on it by law. He seems to have taken the view that if in an appeal from acquittal the accused is convicted under Section 302 Indian Penal Code there would be a conflict between the decisions of the High Court given in an appeal against acquittal and given in an appeal against conviction. If the High Court confirms the conviction of the accused under section 304 Indian Penal Code and if subsequently another Bench in an appeal from an acquittal convicts the same accused person under Section 302 Indian Penal Code, there would not be a conflict between the two orders. An offence is described in Section 40 Indian Penal Code as a thing made punishable by the Indian Penal Code. An act may be punishable under two sections of the Code. If an accused person gives one blow to the victim as a result or which the victim dies, the blow might amount to grievous hurt as defined in Section 320 Indian Penal Code. In such a case, the accused would be guilty both under Section 326 Indian Penal Code if he had used dangerous weapon and he may be guilty also under Section 302 Indian Penal Code. In fact even at the trial such a person can be convicted both under Sections 326 and 302 Indian Penal Code in respect of the same blow. This is contemplated in Section 71 Indian Penal Code which reads as follows:-

Section 71 Indian Penal Code, therefore, limits the punishment awardable in such a case, but it does not take away the power of the Court to convict an accused person of all the offences under which the act falls. Section 2 of the Indian Penal Code provides as follows:-

"Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India."

It is clear, therefore, that a person can be convicted of two different offences in respect of the same or a single act. The act of giving a blow with a dangerous weapon may amount to an offence under Section 326 Indian Penal Code and also to an offence under Section 302 Indian Penal Code if the blow causes death; and he can be found guilty under both the sections. In such a case the punishment is regulated by Section 71 Indian Penal Code. But the case of Section 304 and Section 302 might present some difficulty, because section 304 of the Indian Penal Code punishes culpable homicide not amounting to murder and Section 302 Indian Penal Code punishes culpable homicide amounting to murder. If therefore in an appeal from a conviction, the High Court has confirmed the conviction under Section 304 Indian Penal Code holding that the offence is culpable homicide not amounting to murder, then it is possible to argue that it may not be open to the Court in an appeal from acquittal to differ from that finding that the offence does not amount to murder, although the question whether the culpable homicide amounted to murder may not have been considered. The difficulty arises because of the use of the words 'not amounting to murder' in section 304 Indian Penal Code. In such a case, in view of the finding of the High Court in the appeal from conviction that the offence of which the accused is guilty is culpable homicide not amounting to murder, it is possible to contend that it would not be open in the High Court in an appeal from acquittal, even if it is heard subsequently, to convict the accused under Section 302 Indian Penal Code. But here again, the fact that a particular order cannot be passed by the High Court in an appeal on a point which is already res judicata does not take away the competency of the High Court to hear the appeal. In AIR 1932 Nag 121 the learned Judicial Commissioner, Nachair, J. C., observed:

If the High Court confirms a conviction under Section 326 Indian Penal Code the order is certified to the Sessions Court. The Sessions Court makes a note that the High Court confirmed the conviction under Section 326 Indian Penal Code and the sentence passed thereon. If subsequently, in an appeal from acquittal, the High Court convicts the accused persons under Section 302 and sentences him to imprisonment for life, the High Court can certify the order to the Sessions Court and the 'Sessions Court will make a record of the fact that in an appeal from acquittal, the accused has been convicted under Section 302 Indian Penal Code and sentenced to imprisonment for life. By doing so, the provisions of Section 425 Criminal Procedure Code are in no way contravened. If the High Court convicts the accused under Section 302 Indian Penal Code and sentences him to imprisonment for life, if would make clear that its sentence is subject to the provisions of section 71 Indian Penal Code. It would make clear in the judgment that the accused should not Buffer a more severe 'punishment than imprisonment for life, notwithstanding the fact that he has been convicted under Section 326 and also under Section '302 Indian Penal Code.

15. With great 'respect, therefore, we differ from the views expressed by the Full Benches of the Madhya Bharat .High Court and the Punjab High Court and with the contention advanced by the learned counsel for the respondents. The real overriding considerations are the provisions contained in the Criminal Procedure Code itself. The Criminal Procedure Code gives a right to the State to file an appeal against acquittal and it makes it obligatory on the High Court to hear the appeal if the High Court gives notice under section 422 Criminal Procedure Code. Once such a notice is given it is obligatory on the High Court to hear and decide the appeal and to pass judgment thereon. This right cannot be affected by what a Bench of the High Court does and is not affected even if the High Court hears the appeal from conviction earlier than the appeal by the State from acquittal. A right given by the -Criminal Procedure Code cannot be taken away by anything other than an express provision to the contrary in a statute. While hearing the appeal against acquittal, however, the Bench hearing the appeal must bear in mind the provisions of section 430 Criminal Procedure Code and Section 71 Indian Penal Code. The findings of the First Bench of the High Court deciding the appeal from the conviction on all points which arose for its determination are final and cannot be touched by the High Court 'when hearing the appeal against acquittal. It cannot also order a retrial because by so doing, it would upset the finality of the decision of the First Bench which had heard the appeal against conviction. Subject to these qualifications, the appeal which is competent, must be heard and decided and must result in a judgment either allowing the appeal or dismissing the appeal as provided in Section 423 (i) (a) Criminal Procedure Code. We, therefore, hold that this appeal against acquittal must be heard and decided".