R.S. SARKARIA, J.

(1) HIS appeal under the Supreme court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, is directed against a judgment, dated February 17/18, 1975, of the High court of Bombay. It arises out of the following facts:

(2) ASHOK Narhari Naik, appellant herein, is the original accused 2. He, along with eight others, was tried by the Additional Sessions Judge. Greater Bombay, for having committed offences under S. 143, 147, 14-8, 323 read with S. 149 and 302, Penal Code, or in the alternative under S. 302 and 302/34, Penal Code.

(3) ON 17/06/1972, the deceased, Dindi, gave a beating to accused I who was, at all material times, a door-keeper in the Shreyas Cinema Theatre at Ghatkopar. On the following day when Dindi was going along with his cousin, Amrit Kumar, in the latters car to the house of as friend, Ravindra, accused 1 was seen along with four or five others who administered threats to Dindi because of the previous days incident. On 19/06/1972, accused I made a report at Ghatkopar Police Station against the deceased, Dindi, In respect of the beating administered to him by the deceased on 17/06/1972.

(4) ON 5/07/1972, Dindi deceased along with his friend, Ravindra (PW 6), went to Shreyas Talkies to see a picture at 3 p.m. At that time, accused I was the door-keeper on the ground floor of the upper stall of the said talkies. The deceased and Public Witness 6 purchased balcony tickets for the show and went in to see the picture. This balcony was on the first floor. There are two stair- cases leading to this balcony, one on the north side and the other on the south. The Southern staircase is nearer to the Managers room and the booking office, while the northern staircase is at the other end near the gents lavatory. The southern staircase was used for going up 10 the balcony for the purpose of seeing the show and the northern staircase was used for coming down from the balcony after the end of the show. In order to enter the auditorium, there is a waiting hall on the ground floor. There is a similar waiting hall for the balcony on the first floor. The way to the balcony is through this waiting hall on the ground floor.

(5) KANNAN (Public Witness 5), at the material time on that day. was the door-keep- er ai this main entrance to the waiting hall on the ground floor. All cinema goers had to first enter this waiting hall through that door. This doorkeeper used to allow only such persons who had tickets for the particular show. Accused 1 asked the door-keeper, Kannan (Public Witness 5) to allow four or five persons, who are said to be the assailants of the deceased, to enter from that door into the wailing hall and the latter allowed two batches of those persons to go into the waiting hall. The cinema show was over at about 6 p.m. and the cine-goers from the balcony started coming out. The deceased, Dindi, and Ravindra also came out into the waiting hall at the north-eastern corner at which there is a tea stall close to the staircase meant for coming down. There is also a gents lavatory by the side of this staircase. On its left side, there Is a passage between the auditorium and the gents lavatory and Other rooms nearby. According to the prosecution, the incident took place in this passage. When the deceased along with his companion, Public Witness 6 came in that passage between the auditorium and the gents lavatory, lie was stopped by the appellant with a knife, while his companion fisted, slapped and dragged the deceased towards the lavatory. Dindi was trying to save himself. Ravindra went to the rescue of the deceased and raised an alarm. Thereupon, some of the assailants gave fist blows to Ravindra and then pushed him into the lavatory where he fell down bleeding. He then regained his composure, washed his face, went out io the Managers room wiih his bleeding, swollen lips and told the Manager that he and his friend, Dindi had been assaulted by some persons. He also