Judgment

JASWANT SINGH, J.:- The above noted three appeals, the first two out of which viz. Criminal Appeal No. 213 of 1977 under S. 2 (a) of the SC (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and Criminal Appeal No. 237 of 1977 by special leave challenge the reversal of acquittal and conviction of Salim Zia alias Fodi, appellant under S. 302 of the Indian Penal Code and S.27 of the Arms Act and the last one whereof viz. Criminal Appeal No. 238 of 1977 by special leave which challenges the affirmance of conviction of the appellant under S. 25 of the Arms Act will be disposed of by this judgment as they are all directed against the judgment and order dated April 13, 1977 of the Allahabad High Court.

2. Briefly stated, the case as put forth by the prosecution was that Jaffar Ali, the father of the appellant who migrated to Pakistan and is now a Pakistani national owned a big farm measuring approximately 250 acres in villages Hamid Nagar and Parbatbans within the jurisdiction of Police Station, Bilaspur, District Rampur. Out of the said area of the farm Jaffar Ali had leased out one acre of paddy growing land to Habib, deceased the son of Bandu (P. W. 17) who was a Mistri or Mechanic by profession on Ahdiya ghalla batai basis in lieu of his services for maintaining in working order the hand pumps installed by the former for irrigating the farm. On November 11, 1969, the appellant armed himself with a 12 bore double barrel gun belonging to his uncle, Hamid Ali and accompanied by his younger brothers. Mohd. Jaffar and Salim Jaffar, who have since been acquitted, went to the aforesaid field where the deceased was harvesting and thrashing the crop raised by him and told the later that this time he would be allowed only one third and not one half of the produce. Thereupon the deceased protested asserting that he was entitled to half of the produce as agreed to between him and the appellants father and that cruelty and injustice should not be perpetrated on him. Annoyed at the audacity of the deceased, the appellants aforesaid brothers started hurling abuses at the deceased and exhorted the appellant to finish the deceased without being deterred by the consequences which they might have to face. Thereupon, the appellant fired four shots at the deceased from his aforesaid gun as a result whereof the deceased fell down and died on the spot. Intimation of the incident was sent by Azmat Ali (P. W. 1) to Bandu (P. W. 17), the father of the deceased through Muzammil (P. W. 7). On his return after apprising Bandu of the incident, Muzammil was deputed by Azmat Ali to carry the report (Exh. Ka. 1) which he got written by Abrar Hussain (P. W. 11) to the Police Station, Bilaspur where it was lodged at 5.10 P. M. When Muzammil reached the Police Station, he found the appellant already present over there. On receipt of Exhibit Ka. 1, S. I. Narain Singh Negi (P. W. 18) registered a case under S. 302 of the Penal Code and repaired to the scene of occurrence after sending the appellant to the Government Dispensary at Bilaspur for examination of the injuries on his person and recording his statement. On arrival at the place of occurrence, Narain Singh Negi prepared the inquest report and sent the dead body of the deceased for post-mortem examination to the District Hospital at Rampur where Dr. R. K. Misra, M. O. Incharge of the Hospital conducted the autopsy and found the following injuries on the body of the deceased :

"1. Multiple lacerated gun shot wounds of entry in an area 2" x 1/2" on front and outer side of right thigh lower part. the wounds are oval and congested and margins are inverted. Size 1/2" x 1/2" x depth to wounds of exit near hip.

2. Multiple lacerated gun-shot wounds of exit in an area 2 1/2" x 2" on back of right thigh lower part and back of right knee joint. The margins of wound are averted. Size 3/4" x 1/2". There is fracture of thigh bone in its lower part in injuries 1 and 2.

3. Lacerated gun shot wound of entry with