JUDGMENT

FAZAL ALI, J. :— This appeal by special leave is directed against a judgment dated 29th Aug., 1975/1st Sept., 1975, of the Bombay High Court convicting the appellant, Mohanlal Gangaram Gehani (hereinafter referred to as A-1) under Sec. 326, I. P. C. and sentencing him to rigorous imprisonment for three years. He was also convicted under Section 323 read with S. 34, I. P. C. but no separate sentence was awarded.

2. The trial Court had convicted A-1 under S. 326/34, I. P. C. which was altered by the High Court to one under Section 326 simpliciter. The details of the prosecution case are to be found in the judgment of the High Court and it is not necessary for us to repeat the same. We shall, however, give a brief resume of the important facts which are germane for deciding the short points raised by Mr. Jethmalani, counsel for the appellant.

3. The occurrence out of which the present appeal arises appears to have taken place on April 2, 1972 at about 11/11.30 p. m. According to the prosecution while Ishrat Malik Faqih (hereinafter referred to as Ishrat) was returning from a movie in Paradise Cinema, situated at Lady Jamashedji Road, Mahim at about 12.15 a.m. he met Salim, a fr