Judgment

VAIDIALINGAM, J. : - In this appeal, by special leave, by the State of Uttar Pradesh, the question that arises for consideration is whether the acquittal, by the High Court, of the respondent for the offence under Section 302, I. P. C. is correct.

2. The respondent is a lawyer and was residing at the material time in Mohalla Dunkinganj in a three storeyed house. He and his family occupied first and the second floors in that house though they had to use the water tap and the latrine on the ground floor. The ground floor rooms had been lat out to several persons including Smt. Keshar, P. W. 24. She was living in the rooms for over six years and was paying rent to the respondent. But the respondent was taking steps to evict her and had also asked her to vacate the rooms. P. W. 24 appears to have represented about this to several people in the locality including Munder. On the evening of December 6, 1965 the respondent again asked P. W. 24 to vacate the rooms and actually threw out her household articles on the road. At that time Munder came to that place and protested against the conduct of the respondent in throwing out the articles of P. W. 24. An altercation ensused between the respondent and Munder, but an adjoining shop-keeper Ram Prasad, P. W. 4, intervened and separated them, as a result of which P. W. 24 took back the articles to her house.

3. According to the prosecution, on December 7, 1965 at about 9 A. M. the respondent sent his nephew Babbu, D. W. 1, to bring Munder. When Munder came near the house of the respondent, the latter immediately shot him with a single barrel breach loading gun, Ex. 2. On being hit by the gun shot Munder instantly fell down and died on the spot. On hearing the news about the shooting incident, the neighbours including one Sri Ram, who was a friend of Munder and Bhole Nath (P. W. 3) came near the house of the accused. Sri Ram began to abuse the accused for killing an innocent person. On this the accused fired with the same gun another shot at Shri Ram, who fell down dead. One of the pellets from the gun shot hit Bhola Nath who sustained an injury and ran away crying that he had been injured by the accused. Several people came to the scene and infuriated at the conduct of the accused began to throw stones and empty bottles towards his room. The police, who had been informed by P. W. 5 by telephone that shooting was taking place in the area, immediately arrived on the scene headed by the Sub-Inspector, P. W. 25. On seeing the police party, the crowd stopped pelting stones and throwing empty bottles towards the house of the respondent. The accused was arrested with the gun and taken to the police station. His wife and child were also taken away by the police party so that no harm may be caused to them by the crowd which had assembled there.

4. P. W. 3, who had sustained an injury was examined by the doctor P. W. 2 and he has issued the wound certificate EX. Ka-4. The injury has been described as follows:

"An abrasion 1/2" x 1/4" together with traumatic swelling 1 1/4" x 3/4 located 3/4 below the anterio-superioriliace spine and in front of the upper part of the left thigh."

The doctor has stated that the injury might have been caused by friction against a hard object, which could have been the gun shot. But he has nevertheless stated that the injury was simple.

5. P. W. 14 performed the post-mortem on the bodies of Munder and Sri Ram. The post-mortem certificates in respect of Munder and Sri Ram are Exs. Ka - 19 and 20 respectively. With reference to Munder, it stated that he had received a circular gun shot injury 1 1/2" in diameter and that there was no burning or charring around the wound. It is further noted that on internal examination the right 6th and 7th ribs at Munder on the anterior side for about 2" were found almost wholly absent and the missing pieces were found embedded in lungs and liver. According to the doctor death was caused by haemorrhage due to injury sustained by the gu