JUDGMENT

Shah, J.-In Sessions Trial No. 391 of 1977, Jhinkoo Nai and Tahir were convicted for the offence punishable under Sections 302 and 307 read with 34 IPC. Third accused Imtiyaz alias Chitharu was acquitted. Against that judgment and order, Jhinkoo Nai alongwith Tahir filed Criminal Appeal No. 2478 of 1980 before the High Court of Allahabad. Pending appeal, Tahir expired and his appeal proved abated. By judgment and order dated 28.5.1999, the High Court set-aside the conviction of Jhinkoo Nai for the offence punishable under Section 302 read with Section 34 IPC and Section 307 read with Section 34 IPC but convicted him for the offence punishable under Section 324 IPC and sentenced to suffer RI for two years.

2. Against that judgment and order, the State has preferred Criminal Appeal No. 1077 of 1999. Accused Jhinkoo Nai has also filed special leave petition against the said order which is delayed by 454 days.

3. The learned counsel for the appellant-State submitted that the judgment and order passed by the High Court acquitting the respondent for the offence punishable under Section 302 read with Section 34 IPC is on the face of it, illegal and erroneous. As against this, learn