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CASE NO.: Appeal (crl.)  101 of 2006

PETITIONER: MalleshappAa

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 21/09/2007

BENCH: R.V. Raveendran & B. Sudershan Reddy

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 101 OF 2006

B.Sudershan Reddy, J.

1.      The appellant along with six others was tried by the  Court of Sessions for the offence punishable under Section  302 of the Indian Penal Code (hereinafter referred to as  ’IPC’) and sentenced to undergo life imprisonment and to  pay a fine of Rs. 2,000/-.  He was also convicted for the  offence punishable under Section 364 IPC and sentenced to  undergo rigorous imprisonment for 5 years and to pay a fine  of Rs. 1,000/-  and in default of payment of fine, to undergo  rigorous imprisonment for 3 months. Further, he was  convicted for the offence punishable under Section 201 IPC  and sentenced to undergo rigorous imprisonment for 1 year  and to pay a fine of Rs. 1,000/- and in default of payment,  to undergo rigorous imprisonment for 3 months. All  sentences were directed to run concurrently. The Sessions  Court acquitted accused Nos. 2, 3, 4 and 5. The appeal of  the appellant was dismissed by the High Court of Karnataka  by the impugned judgment, however, accused Nos. 6 and 7  were acquitted by the  High Court  of all the charges leveled  against them.  In this case we are concerned with the sole  appellant (Accused No. 1).  

2.      The conviction of the appellant is based on  circumstantial evidence.  

3.       In brief, the case of the prosecution is that the  deceased-Yankanna Balakannavar had illicit intimacy with  the wife  of the appellant Smt. Hanamawwa (PW\02619).  Deceased was working as the driver of the tractor of the  appellant during 2001. The appellant’s suspicion about the  deceased having illicit intimacy with his wife led to serious  misunderstanding between them because of which,  deceased left his job as the tractor driver. On 12.7.2001 at  about 8.00 p.m., the appellant and accused Nos. 6 and 7  went in the car of the appellant to the house of the  deceased. He was not at home.  The appellant and accused  Nos.6 and 7 told deceased Yankanna’s mother Yallawwa  (PW-10) that they required the services of her son  in  connection with digging of a borewell in the land of the  appellant.  When deceased Yankanna returned home within  half an hour, he was immediately taken by the appellant and  accused Nos. 6 and 7 with them. On that night, deceased-

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Yankanna did not return home.  On the next day, Yallawwa  (PW-10) went in search of her son but could not find him.  On questioning, the appellant informed PW-10 that he had  brought back deceased Yankanna at about 11.00 p.m. on  the same night and had left him in the village. Not satisfied  with the answer given by the appellant, PW-10 went to  accused Nos.  6 and 7 and inquired about the whereabouts  of her son but they also did not give any satisfactory  answer. Thereafter, PW-10 and her nephew-Kamanna  Parameshwar (PW-18) went in search of the deceased  Yankanna and in the process, made inquiries in nearby  villages namely Dadanatti, Rugi, Chabbi etc. but could not  find him.  

4.      On 21.7.2001, Inspector of Bilagi Police Station (PW- 29) received information that there was a dead body found  floating in the Ghataprabha river. Immediately, he rushed to  the place and found the dead body of a person near the  pump house. The dead body was taken out from the river.   It was found that the head and rest of the portion of the  body had been severed. The body was highly decomposed  and the bones were exposed. The legs of the dead body  were found folded and tied with a rope.  The body was tied  by another rope at the place of neck also.  Inspector of  police (PW-29) lodged information with regard to the same  and the same was registered as Crime No. 91/2001 of Bilagi  Police Station  for the offences  punishable under Section  302 and 201 of the IPC.  The First Information Report is  exhibit P-23 dated 21.7.2001.  Thereafter, PW-29 conducted  inquest in the presence of PW-1 and 2 and sent for the  medical officer to conduct the post mortem  examination.   Dr. Sabu Satihal, Medical Officer, KIMS, Hubli (PW-21)   conducted the post mortem examination.  The Medical  Officer could not confirm as to whether the body was that of  a male or female since the genital  portion had been highly  decomposed. However, there was underwear found on the  body which was  taken out and the body was preserved for  two days for identification.  

5.      In the meanwhile, PW-10 along with PW-18 had gone  to Kaladgi police station and lodged a complaint on  22.7.2001 inter alia alleging that her son was working as a  tractor driver for about 3-4 years with the appellant and  about 3 months back, her deceased son left the job on  account  of some disputes between them. She suspected  that there was some dispute between her son and the  appellant, accused Nos. 6 and 7 since they were frequently  roaming around her house, making inquiries about her son.  She made inquiries with her deceased son in that regard  who did not respond.   She apprehended  that the appellant  may cause harm to her son.  It is further alleged that about  11 days back i.e. on 12.7.2001, herself, the deceased and  Lacchavva-wife of the deceased (PW-11)  were sitting in  their house and at that time the appellant, accused Nos. 6  and 7 came to her and stated that they  required her son in  connection with digging of a borewell in the land of the  appellant.  The deceased refused to go but they took her son  forcibly  and the same was noticed by her neighbours.  It  was about 8.00 p.m. Thereafter, her son did not return   to  home. She made inquiries with the appellant who stated  that he had dropped her son in the village at 11.00 p.m.  Other accused also did not  give any satisfactory  explanation. She suspected that the said three persons  might have killed her son.  On the basis of the said  information a case was registered by sub-Inspector(PW-28),

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Kaladgi Police Station as Crime no. 50/01 for the offence  under Section 364 read with 34 IPC.  Intimation of detection  of dead body in Ghataprabha river was flashed to the  neighbouring  police stations and the same was received by  Kaladgi police station and in furtherance of the same, PW\026 10 and PW-11 were taken to the place. PW-10 identified the  body as that of her son Yankanna on the basis of the  underwear found on the body.  On 26.7.2001, appellant and  accused Nos. 2 and 3 were arrested.  In furtherance of the  voluntary information given by the appellant, PW \02629  could  ascertain the places where the deceased had been taken by  the appellant and other accused, who were involved in the  incident as well as the place where the dead body of  Yankanna had been thrown into river. Weapons of offence  were also recovered on the basis of the voluntary  information furnished by the appellant. As it was revealed  that the incident occurred within Kaladgi limits, PW-29  submitted the entire papers on 8.8.2001 to Kaladgi Police  Station for further investigation. Police Inspector of Bagalkot  police station (PW-26)  took up further investigation on  9.8.2001 and filed charge sheet against the appellant and  accused Nos. 2 to 7 for offences punishable under Sections  143, 147, 148, 354, 302, 201 read with 149 of the IPC.  

6.      The accused pleaded not guilty of the charges and  claimed to be tried.   The prosecution, in order to establish  the case, examined in all 30 witnesses. No witness was  examined on behalf of the accused.  The learned Sessions  Judge  found that the materials were not sufficient  and no  case was made out as against accused Nos. 2 to 5  and  consequently, acquitted them of all the charges.  The  remaining accused namely appellant and Accused Nos. 6 and  7 were convicted for the offences punishable under Section  302 , 364, and 201 of the IPC.  On appeal, the High Court  allowed the appeal of accused Nos. 6 and 7 and acquitted  them. The High Court dismissed the appeal of the appellant  and confirmed the conviction and sentences imposed as  against the appellant.  

7.      We have elaborately heard the learned counsel  appearing for the appellant as well as for the State.  

8.      Shri Sushil Kumar, learned senior counsel for the  appellant contended that the High Court committed a  serious error in holding that the burden shifted to the  appellant to  show what happened to the deceased in view  of the evidence of PW-10 and PW-11 that he took the  deceased and this amounts to requiring the accused to  prove his innocence. He pointed out another error  committed by the High Court in coming to the conclusion  that the appellant with the help of some others (not the  other accused who had been acquitted) were responsible for  committing the murder of the deceased-Yankanna.  The  learned counsel submitted that the chain of circumstances is  not complete and, therefore, the conviction of the appellant  cannot be sustained.  Further contention of the learned  counsel was that assuming that the prosecution has been  able to establish the circumstance of being last seen  together, namely, the deceased having left with the  appellant  on 12th July, 2001, that by itself, could not  connect the appellant with the commission of crime in the  circumstances of the case.  

9.      On the other hand, the learned counsel for the State  submitted that the evidence of PW-10 and 11 which is

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consistent and the circumstances in which the dead body  was found in the river clearly indicated that the dead body  had been thrown into Ghataprabha river after committing  murder of the person and the identification by PW-10 that  the dead body was that of Yankanna, the chain of events is  complete and in the absence of any explanation by the  appellant, only conclusion to be arrived at is that the  appellant was responsible and liable for the murder of the  deceased-Yankanna.  

10.     Having heard learned counsel for the parties and on  perusal of the record, we find that the prosecution miserably  failed to establish the charge against the appellant.  

11.     It is required to notice that most of the witnesses  namely, PW Nos. 1 to 9, 13, 14, 15, 6, 17, 19, 23 and 30  had turned hostile and did not support the prosecution case.   The whole case of the prosecution rests on the evidence of  the mother and wife of the deceased (PW Nos. 10 and 11)  and the police officers ( PW Nos. 28 and 29). We may  proceed now to consider the evidence of PW Nos. 10 and 11  in somewhat detail.  

12.     PW-10, in her evidence, stated that the appellant along  with accused Nos. 6 and 7 came to her house at about 8.00  p.m. and took her son Yankanna as his assistance was  required in connection with digging of a borewell  in the land  of the appellant.  Thereafter, her son has not returned. She  had searched for her son in neighbouring villages but could  not find him.  The appellant and accused No. 6 came  along  with her and also searched for  the deceased-Yankanna.   Thereafter she and her relatives demanded the appellant to  produce the deceased\026Yankanna. Having waited for  about   5-6 days, she filed a written complaint, written through PW- 18 addressed to Kaladagi Police Station marked as  exhibit  P-6.  The police traced the dead body of Yankanna. It was  found in Anagwadi river. She specifically states that "I saw   the  body  and his head was chopped off and hands and legs  were cut-off  and the rope was tied to the body. I saw and  identified the underwear (M.O.1)  and identified the body as   it belongs to  my son."  she suspected the appellant had  committed  the murder of her son. She further stated that  when she insisted the appellant to produce her son, the  appellant told her deceased Yankanna had illicit connection  with his wife - Hanamawwa (PW-19)  - "because of that he  killed my son".    

13.     In the cross-examination, she stated in categorical  terms that at  the time of  arrival of the appellant at her  house, her son Yankanna was not present at home and only  half an hour later he returned  home and immediately the  appellant took him away. Prior to the arrival of the  deceased, she and the appellant  and PW-11 were present in  the house. The appellant took the deceased and went away.   She accepted that on receipt of information about floating of  a dead body in the Ghataprabha river, she went there and  identified the dead body as that of her son. She did not file  any complaint to the Bilagi Police Station. Bilagi Police  Station took her to Kaladgi Police Station in the police jeep  where she lodged Exhibit P-6.  

14.     In Exhibit P-6 (FIR), it is stated by  PW-10  that her  deceased son Yankanna left his job about 3 months prior to  the date of the incident. It is further stated in the Exhibit P-6  that on 12.7.2001 in the evening  she was sitting in her

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house along with the deceased and his wife-Lacchavva (PW- 11) and that time the appellant, accused nos. 6 and  7   came to her house and she invited them inside. She did not  state that her son was not present when the appellant along  with other accused came to her house and her son returned  home only after half an hour. In exhibit P-6 there is no  mention of her coming to the Ghataprabha river and  anything about the identification of the dead body of her  son.  Had she really identified the dead body of her son on  21.7.2001 nothing prevented her from referring to it  in  exhibit P-6.  In her evidence, she stated that she did not  claim the dead body of her son nor the police told her to  take away the body of the deceased. She did not attend the  funeral of her son.             15.     PW-11 is none other than the wife of the deceased. She  stated in her evidence that about 3 years ago at 8.00 p.m.,  appellant with  two others came to her house and took away  her husband with them.  Thereafter, her husband did not  return home. That after 7-8 days having received the  information about a dead body floating in the Ghataprabha  river, PW-10 and herself went and saw the dead body and  found it to be of her husband. PW-10 filed the complaint to  the police.  According to her, appellant suspected that her  deceased  husband had illicit intimacy with his wife because  of that, appellant and accused No.2 took her husband and  committed the murder. Looking at M.O.1 first time in the  court, she identified the same as underwear of her husband.  It is admitted by her in the cross-examination  while she  was waiting in Bilagi police station, her mother-in-law (PW- 10) went and saw the dead body of her husband and she  came and told her that it was the dead body of her husband  Yankanna. On the next day, she along with PW-10 went to  Kaladagi police station where PW-10 filed  the complaint  Exhibit P-6. She did not see the body of her husband. She  did not perform the funeral. She further stated in her  evidence, it is the police who told her that there was illicit  relationship between deceased and Hanamawwa, wife of the  appellant.  

16.     PW-29, Inspector of Police, Bilagi police station stated  in his evidence that on receiving information on 21st July,  2001  about  floating a dead body  at the Northern bank of  Ghataprabha river  near the pump house, went  there and  found one unknown dead  body  was floating in the  Ghataprabha  river  near the pump house. He returned to  the Bilagi police station and lodged information exhibit P-22.  On that basis he registered the case as Crime No. 91/01  for  the offence under Section 302  & 201 IPC and dispatched  the first information report to the court at 1430  hours and  again proceeded to the spot where the dead body was  found. The dead body was taken out of the river.  It was in a  highly decomposed condition.   He summoned the Medical  Officer (PW-21)  to conduct post mortem examination at the  spot and thereafter buried the body there itself. He also says  that he got the photos of the body taken prior to  ’cremation’. Post mortem examination was conducted at the  spot itself by PW-21 between 4.45 p.m. to 6.15 p.m.  It is  on 24th July, 2001, PW-10 to 12  came to the police station  Bilagi  and he had shown M.O. 1 (underwear), M.O. 6 (Waist  thread) and photos to PW-10 to 12  based on which they  identified the dead body as that of Yankanna. He undertook  further investigation and arrested the accused.  He claims to  have made certain recoveries.  It is on 8th August, 2001 he  made over the case for further investigation to the C.P.I of

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Bagalkot, Rural Circle through Kaladgi  police station.   

17.     The evidence of PW-10 is full of contradictions apart  from being at variance with exhibit P-6 (FIR) lodged by her  before the Kaladgi police station and the evidence of the  Investigating Officer (PW-29).  In Exhibit P-6 she stated that   her deceased son was taken away forcibly  by the appellant,  accused nos. 6 and 7.   In the FIR, PW-10 does not say  that  the deceased-Yankanna  was working with the appellant as  tractor driver but in her evidence she stated that deceased- Yankanna  was working  with the appellant. In the first  information report she does not say anything about the illicit  relationship of deceased-Yankanna  and appellant’s wife- Hanamawwa(PW-19).  She merely stated that there was  some dispute between the appellant and the deceased but in  evidence, she stated that the appellant told her that  deceased-Yanakanna had illicit connection with his wife- Hanamawwa (PW-19) because of that he killed her son.   PW-11, Lacchawa-wife of the deceased admitted in her  cross-examination that she learnt that there was illicit  relationship between the deceased and the wife of the  appellant only when the police told her.  She asserted that  PW-10 filed a complaint to the police "as we came to know  about the illicit relationship between the deceased and  Hanamawwa-wife of the appellant through police."

18.     On an analysis of the evidence referred to herein  above, we find it very difficult to believe the evidence of PW- 10 and PW-11. They are not trustworthy witnesses. It is  doubtful as to how and in what circumstances exhibit P-6  came into existence. If PW-10 had seen the dead body and  identified it as that of her son there is no reason why she  could not have stated about it in exhibit P-6.    If one goes  by the contents of exhibit P-6 it becomes clear that she  knew nothing about the dead body found in the Ghataprabha  river. The question of identifying the dead body as that of  her son does not arise.  PW-29, in his evidence, stated that  PW-10  to 12  identified the body as that of deceased- Yankanna only on the basis of M.O. 1 (underwear) and M.O.  6 (Waist thread) and some photos on 24.7.2001.  No  photographs are marked as material objects.  It is difficult to  believe that one could identify the highly decomposed  and  mutilated dead body as that of deceased-Yankanna when  the Medical Officer (PW-21) was not even in a position to  say whether the dead body was that of a male or female.  It  is only the Forensic Expert (PW-22) who stated the body as  that of a male after examining the bones. PW-10 and 11  assert  that dead body was identified by PW-10 even on 21st  July, 2001 but PW-29 says that dead body was buried  immediately after the post mortem examination.   Exhibit P- 6 is obviously got into existence may be after prolonged  consultation with the police. The dead body remained  unidentified.  

19.     PW-11’s evidence is also not trustworthy. She states, in  her evidence, that Bilagi police came in a jeep  and informed  her  and PW-10 that  a dead body was found in the river and  thereafter, she and PW-10 went to Bilagi police station but  she did not see the dead body of her husband. She was  waiting in Bilagi police station but PW-10  and her father-in- law went to saw the dead body of her husband. But her  father-in-law (PW-12)  does not say that he saw the body of  his son. Next day they went in police jeep to Kaladagi police  station where PW-10 lodged first information report (exhibit  P-6).  The version given by PW-11 is also highly artificial and

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cannot be accepted. It is difficult to believe that she did not  go to the spot where the body was found.   It is difficult to  reconcile the statements of PW-10 and PW-29. It is doubtful  that PW-10 at all had seen the dead body of her son. PW-29,  in his evidence, stated that he could not trace the relatives  of the dead person since it was highly decomposed and had  therefore got buried the body on 21.7.2001 itself.  Thus in  effect no one identified the body buried on 21.7.2001 as that  of Yankanna.  

20.      Yet another aspect of the matter is that there is no  explanation as to why no complaint has been made  ever  since 12th July, 2001 when Yankanna was forcibly taken  away till lodging  the first information report on 22nd July,  2001 at 1900 hours.

21.     There is no convincing evidence placed by the  prosecution to show that there was motive and that the  deceased Yankanna had illicit relationship with  Hanamawwa  (PW-19) wife of the appellant. Be it noted, PW-19 also  turned hostile and did not support the prosecution case. In  this regard, the evidence of PW-11 gains some significance  wherein she admitted that the complaint was filed only after  they were informed by the police about the illicit relationship  of the deceased-Yankanna and Hanamawwa (PW-19). No  witness has spoken about the alleged illicit relationship  between the deceased and PW-19 except PW-10 and 11 who  got the information from the police.  

22.     Next, we shall refer to the evidence of PW-21 who  conducted the post mortem examination. It is in his  evidence that the body was highly decomposed, head was  missing, both legs were flexed and tied with rope over the  abdomen. Hands were missing. Survival bone was exposed,  external genitalia was highly decomposed and unable to  make out sex organs. He could not make out as to whether  the body was of a male or female, age and cause of death,  time of death, he accordingly preserved the samples and  sent to the Forensic Expert.  The Forensic Expert examined  as PW-22 stated that he received a sealed box containing  bones from PW-21  and on opening the box, he found 8  human bones as mentioned in his report.   They were of  male body. He admitted that by examining the bones, exact  age of the deceased cannot be given. Even the time of death  cannot be given exactly.  

23.     In the light of the evidence available on record, can it  be said that the circumstances of last seen together by itself  and necessarily lead to the inference that it was the  appellant who committed the crime?  The High Court took  the view that accused Nos. 6 and 7 are entitled to the  benefit of doubt though, PW-10 stated in her evidence that  the appellant, accused Nos. 6 and 7 took her son Yankanna  on the fateful day. No motive was shown with regard to  accused Nos. 6 and 7 for their involvement in the crime. It is  under those circumstances, the High Court said that the  burden shifts to the appellant to show as to what happened  to the deceased-Yankanna.  In our considered opinion, the  High Court committed serious error in arriving at such  conclusion.  The first information report lodged by PW-10  itself is highly doubtful.  PW-10’s evidence itself does not  reveal any circumstances to hold that the prosecution has  established the charge against the appellant.  The  appellant’s failure to offer any explanation in his statement  under Section 313 Cr.P.C. is not a circumstance to hold

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appellant guilty of the charge.  The prosecution has failed to  establish as to when the death of Yankanna took place, it  could be at any time between 12th July, 2001 to 21st  July,  2001. There is nothing on record to show as to what  transpired between 12th July, 2001 to 21st July, 2001. Mere  non-explanation on the part of the appellant, in our  considered opinion, by itself cannot lead to proof of guilt  against the appellant. Learned counsel for the State relied  upon the decision in Mohibur Rahman & Anr.  Vs. State  of Assam [ (2002) 6 SCC 715] which in fact is in support of  the defence and nor the prosecution.  "The circumstance of last seen together  does not by itself and necessarily lead  to the inference that it was the accused  who committed the crime. There must  be something more establishing  connectivity between the accused and  the crime. There may be cases where on  account of close proximity of place and  time between the event of the accused  having been last seen with the deceased  and the factum of death a rational mind  may be persuaded to reach an  irresistible conclusion that either the  accused should explain how and in what  circumstances the victim suffered the  death or should own the liability for the  homicide. In the present case there is  no such proximity of time and place. As  already noted the death body has been  recovered about 14 days after the date  on which the deceased was last seen in  the company of the accused. The  distance between the two places is  about 30-40 kms. The event of the two  accused persons having departed with  the deceased and thus last seen  together (by Lilima Rajbongshi, PW6)  does not bear such close proximity with  the death of victim by reference to time  or place. According to Dr. Ratan Ch. Das  the death occurred 5 to 10 days before  9.2.1991. The medical evidence does  not establish, and there is no other  evidence available to hold, that the  deceased had died on 24.1.1991 or  soon thereafter. So far as the accused  Mohibur Rahman is concerned this is the  singular piece of circumstantial evidence  available against him. We have already  discussed the evidence as to recovery  and held that he cannot be connected  with any recovery. Merely because he  was last seen with the deceased a few  unascertainable number of days before  his death, he cannot be held liable for  the offence of having caused the death  of the deceased. So far as the offence  under Section 201 IPC is concerned  there is no evidence worth the name  available against him. He is entitled to  an acquittal."

24.     In the present case also, there is no proximity of time  

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and place.  We have already noted that the dead body, even  if it is to be accepted, was  that of the deceased-Yankanna,  had been recovered after 10 days after the date of which the  deceased was last seen in the company of the appellant.  This singular piece of circumstantial evidence available  against the appellant, even if the version of  PW-10 is to be  accepted, is not enough. It is fairly well settled that the  circumstantial evidence in order to sustain the conviction  must be complete and incapable of explanation of any other  hypothesis than that of the guilt  of the accused. It is true as  has been held by this Court in Lakshmi & Ors. Vs. State of  U.P.   [ (2002) 7 SCC 198] that it is not an inflexible rule   that the identification of the body, cause of death and  recovery of weapon with which the injury may have been  inflicted on the deceased  though are factors to be  established by the prosecution but it cannot be held as a  general rule and broad proposition of law that where these  aspects are not established, it would be fatal to the case of  the prosecution and in all eventualities, it  ought to result in  acquittal of those who may be charged with the offence of  murder  provided the charges against the accused otherwise  can be established on the basis of the other reliable and  trustworthy evidence.   

25.     There is no reliable and trustworthy evidence in the  present case.  The High Court in the present case took the  view that as to what happened to the deceased-Yankanna  was within the knowledge of the appellant and he having  failed to explain, and mutilated body of Yankanna having  been found, having shown that Yankanna had been  murdered, the only conclusion one can arrive at is that the  appellant with the help of some others committed the  murder of Yankanna, cut off head and some part of the body  and threw the body in Ghataprabha river. Too many  surmises and conjectures! it is highly dangerous to convict  any accused on the basis of which the High Court has  chosen to do so.   

26.     It is not the case of the prosecution that the appellant  together with some unidentified persons kidnapped the  deceased-Yankanna and killed him.  The specific case of the  prosecution is that the appellant along with accused Nos. 2  to 7 committed the crime of kidnapping and murder of the  deceased. The trial court as well as the High Court gave the  benefit of doubt to the rest of the accused. The High Court in  the circumstances could not have propounded  a new theory  that the appellant with the help of some others may have  committed the murder of Yankanna. Neither there are any  circumstances nor any evidence available on record to take  such a view in the matter in order to convict the appellant.  The decision of this Court in  Khujji @ Surendra Tiwari Vs.  State of Madhya Pradesh [ (1991) 3 SCC 627]  upon  which, the reliance has been placed by the learned counsel  for the State to sustain the conviction of the appellant has  no application whatsoever to the facts and situation in the  present case. It was the case where this Court on an  independent appreciation of the evidence of the three eye- witnesses came to the conclusion that several persons had  participated in the commission of the crime including the  appellant but for some reasons all other accused except the  appellant therein were acquitted of the charge under Section  302 read with 149 IPC.  This Court took the view that in the  absence of the State appeal, it is not possible to interfere  with their acquittal but this Court was not bound by the facts  found proved on the appreciation of evidence by the courts

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below and is, in law, entitled to reach its own conclusion  different from the one recorded by the courts below on a  review of the evidence.   It is under those circumstances,  this Court  sustained  the conviction of the appellant under  Section 302 IPC with the aid of Section 34 and 149 IPC and  maintained the sentence awarded to him.  In the present  case, there is no evidence available on record to arrive at  any conclusion that accused Nos. 2 to 7 were also involved  in the commission of the crime though they were acquitted  by the trial court.  We, accordingly, hold that the judgment  have no application to the present case in hand.  

27.     For all the aforesaid reasons, we hold that the  prosecution did not establish the charges framed against the  appellant under Sections 302, 364 and 201 IPC.  The  conviction and sentence awarded against the appellant is,  accordingly, set aside and he is acquitted of all the charges.  He is ordered to be released forthwith unless required in  any other case.          28.     The appeal is, accordingly, allowed.