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PETITIONER: PEDDA NARAYANA & ORS.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT08/04/1975

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA UNTWALIA, N.L.

CITATION:  1975 AIR 1252            1975 SCR   84  1975 SCC  (4) 153  CITATOR INFO :  RF         1986 SC 250  (39)  R          1991 SC1853  (8)  D          1992 SC  49  (15)  R          1992 SC 891  (15)

ACT: Evidence-Appreciation   of-Omission  of  details  in   First and Inquest Report-Effect of-Code of Criminal Procedure (Act 5 of 1898) s. 174-Scope of.

HEADNOTE: The  first accused borrowed money from the deceased  and  as the  money was not repaid the deceased filed a suit  against him.   Angered by being drawn into litigation, A. 1 to A.  3 and three others came upon the deceased in a jeep driven  by A.  4, and A. 1 to A. 3 getting down from the  jeep  stabbed the deceased with daggers and while the deceased was falling down  carried  him away in the jeep.  The companion  of  the deceased at the time when the occurrence took place gave the first  information  to  the police.  Three  days  after  the incident the dead body was recovered, and inquest was held. The  four accused were charged with offences of  murder  and kidnapping,  but  the  trial court acquitted  them  for  the reasons  :  (i) the First Information did  not  contain  the overt  acts attributed to each of the accused; (ii)  details of  the overt acts were not mentioned in the Inquest  Report and therefore it must be inferred that the eye witnesses did not mention the overt acts to the police; (iii) there was no reliable  evidence identifying the dead body, and  (iv)  the motive was not sufficient to impel the accused to murder the deceased. On appeal the High Court convicted A. 1 to A. 3 for offences tinder s. 302 read with ss. 34 and 148 and under s. 364 read with s. 34 I.P.C.- A. 4 was convicted under s. 302 read with s. 149 and under s. 364 read with s.-34, I.P.C. Dismissing  the  appeal to this Court of A. 1 to  A.  3  and allowing that of A. 4, HELD  : The High Court rightly believed the evidence of  the prosecution witnesses and there was no error in its approach to the case. [91 A-B]. (1)  The  witness who gave the first information  must  have been  extremely  perturbed  having seen the  attack  on  his

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companion.  Even so, all the essential details which a first information  should  contain are there.  The  names  of  the accused  and the circumstances of the murderous assault  are mentioned.   Shorn  of  minute  detail  the  broad   picture presented  by  the prosecution was mentioned  in  the  first information  which was lodged soon after the occurrence.  it is  neither customary nor necessary to mention every  minute detail in the first information. [88 A-C] (2)  The object of the inquest proceedings under s. 174  Cr. P.C. is merely to ascertain whether a person has died  under suspicious  circumstances  or  whether  it  was  a  case  of unnatural  death, and if so, what was the apparent cause  of death.   The  question regarding the details as to  how  the deceased  was assaulted or who assaulted him or  under  what circumstances  is  foreign to the  proceedings.   Therefore, neither  in  practice nor in law was it  necessary  for  the police  to have mentioned details of all the overt  acts  of the  accused  in the inquest report.  From such  absence  of details  in the inquest report it was wrong to presume  that the  witnesses  did not mention the details  to  the  police during investigation. [89 C-E] (3)  The  dead body was identifiable and was  identified  by the  son  of the deceased, the witness who  gave  the  first information and a co-villager. [90 E]                              85 (4)  Various  persons  react to circumstances  in  different ways  and  it  is difficult to say when a  motive  would  be sufficient   for  a  crime.   Moreover,  in  view   of   the independent testimony of eye witnesses, whom the High  Court has believed   the question of motive become academic. [90G- H]. (5)  This  is not a case where two views are possible.   The only  possible view is that taken by the High Court and  the High  Court rightly reversed the acquittal under s. 417  Cr. P. C. [91 C-D]. 6(a) The medical evidence showes that the deceased must have died  before the body was put in the jeep and so the  charge of kidnapping fails. [91D-E]. (b)  As regards A. 4 there is no reliable evidence to  prove actual  complicity in the murder.  He is a young boy  of  18 engaged as a driver.  His name is not mentioned in the first information  to the police as having taken any part  in  the assault. [91 H]. (c)  Therefore,  he could not be convicted for  murder.   He could be guilty of the offence under s. 201 I. P. C. but  he was  acquitted of that charge by the trial court.  The  High Court had not convicted him under that section and no appeal against his acquittal has been filed in this Court and hence he could not be convicted of that offence either. [92 C-D].

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 92  of 1971. From the Judgment and Order dated the 31st December, 1970 of the Andhra Pradesh High Court in Criminal Appeal No. 868  of 1969. P.   Basi Reddy and G. Narayanarao, for the appellants. P.   Rama Reddy and P. P. Rao, for the respondent. The Judgment of the Court was delivered by FAZAL  ALI,  J.-Appellants A-1 to A-3  have  been  convicted under  s.  302 read with s. 34 I.P.C. as also under  s.  148 I.P.C. They are also convicted under S. 364 read with s.  34 I.P.C.  A-1 to A-3 have been sentenced to  imprisonment  for

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life  under s. 302 read with S. 34 and A-4 has been  awarded the same sentence under s. 302 read with s. 149 I.P.C. Under s 364 read with s. 34 the four appellants have been  awarded five  years  rigorous  imprisonment each.  In  view  of  the sentences passed, no separate sentence was imposed under ss. 147  and 148 I. P. C. The accused had been acquitted by  the Additional Sessions Judge, Anantpur, in the State of  Andhra Pradesh.   On  appeal against acquittal filed by  the  State before  the  High Court of Andhra Pradesh,  the  appeal  was allowed  and  the appellants A-1 to A-4 were  convicted  and sentenced  as mentioned above.  Against  these  convictions, the  present appellants have preferred this appeal  to  this Court.   As the High Court had awarded the sentence of  life imprisonment  after reversing the order of acquittal  passed by the Additional Sessions Judge, the appeal to the  Supreme Court lies even on facts and as a matter of right under s. 2 of  the  Supreme Court (Enlargement  of  Criminal  Appellate Jurisdiction) Act, 1970. The  prosecution case may conveniently be divided into  four separate  parts-Part-I constitutes the immediate motive  for the murder 86 of  the  deceased;  Part 11 relates, to  the  visit  of  the deceased  to Anantpur where he was shadowed  and  threatened and  forms the genesis of the occurrence; Part III  consists of the actual murderous assault on the deceased resulting in his death and the last part-Part IV-relates to the  recovery of  the dead body three days after the occurrence.  This  is rather  an unfortunate case where the appellants  sought  to hit  upon  a preconceived plan to do away with the  life  of the  deceased animated by rancor and hatred  resulting  from the  act  of  the deceased in embroiling the  accused  in  a litigation over a monetary transaction. In  order  to  understand  the  case  put  forward  by   the prosecution it may be necessary to give briefly a resume  of the four stages of-. the prosecution case. Part-I.   The  story  of the prosecution  begins  with,  the purchase  of a jeep by A-1 and his brother being  jeep  No. A.I.A.   2781   from  one  Kona  Rama   Subbareddi   for   a consideration  of  Rs.  6,000/-.   In  order  to  meet   the consideration of the jeep A-1 and his brother had borrowed a sum of Rs. 6,900/- on April 18, 1964 from the deceased after executing  a promissory note in his favour.  As  this  money was not paid by A-1 to the deceased, the deceased brought  a suit  in  the Court of the Subordinate Judge,  Anantpur  for realisation  of the amount.  Some time in the year 1969  A-1 filed  an Insolvency Petition before the  Subordinate  Judge showin-  his debts to the tune o@ Rs. 1,96,000/-.  The  suit filed  by  the deceased was posted on February 6,  1969  for evidence  to be given by A-1 and this appears to  have  been the  immediate  provocation and occasion- for  planning  the murder of the deceased by the appellants. Part-II.   In view of the fact that the suit was  posted  to February  6, 1969 the deceased along with P. W.  1-who  will hereafter be referred to as Chinna-proceeded to Anantpur  on February  5, 1969 and reached there at 8-30 P.M. It is  said that while P.W. 1 China and the deceased were alighting from the  bus they saw A-1, A-2 and A-4 sitting in the jeep  near the  petrol  pump  which is  situated  near  the  bus-stand. Chinna  and  the  deceased  then went to  the  house  of  N. Narayana Rao, P.W. 20 who was their counsel and stayed there for  the night.  On the next day i.e. February 6,  1969  the suit  was  adjourned and after the adjournment of  the  case Chinna  and the deceased went to the place where  they  were staying  and  on  the way some persons  with  big  mustaches

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appear  to have threatened them.  Chinna, however,  did  not take the threat seriously and proceeded to his destination. Part-III.  On the night of February 6, 1969 the deceased and Chinna went to witness a picture called "Tenali Ramakrishna" in  Raghuveera  Talkies  and it is said  that  some  of  the accused  had also followed the deceased and went to see  the cinema  show.  After returning from the picture,  while  the two  persons namely Chinna and the deceased were  proceeding south to north and had covered 20 feet from the hotel  where they had taken their food, suddenly a jeep came and  stopped near the deceased.  According to the prosecution A-1 to A-3 87 got down from the jeep along with three other strangers  and surrounded  the  deceased.  Chinna was about one  bara  away from the deceased.  Thereafter A-2 stabbed the deceased with a dagger on his stomach and A-1 stabbed him on the left side of the chest and when the deceased was about to fall A-3  is said to have stabbed the deceased with a dagger on his  left knee.   When  Chinna  P.W.  I wanted  to  intervene  he  was threatened by the three stranger-who were armed With daggers and  was  pushed  aside  by  those  strangers.   Before  the deceased  could fall down on the ground he was put into  the jeep and carried away. Part-IV.   On February 9, 1969 P.W. 16 and the Inspector  of Tadipatri   Went   to  Cherlepalli  for   the   purpose   of investigation where P.W. 16 received information that a dead body  was lying near the Railway gate at  Taticherla.   The, police  party proceeded to that place and found a dead  body lying on its back with injuries on the body.  The body  was, however,  in a bloated condition.   Subsequently.proceedings for  inquest under s. 174 of the Code of Criminal  Procedure were taken and after the usual investigation a  charge-sheet was submitted against the appellants.  We might mention here that  the F.I.R. in the case was lodged by P.W. I Chinna  on February  6,  1969  before  the  Sub-Inspector  of   Police, Anantpur Police Station and is Ext.  P-1 in the case. The learned Additional Sessions Judge after consideration of the  evidence  produced  before him  acquitted  the  accused without  considering,, the intrinsic merits of the  evidence produced  before him on purely general grounds and  what  he called  inherent  improbabilities arising out of  the  case. The  High  Court  in appeal against  the  acquittal  of  the accused found that the learned Additional Sessions Judge was not at all justified in acquitting the accused and that  the reasons  given  by  him were wholly  untenable  in  law  and accordingly the High Court reversed tile order of  acquittal and  convicted  A-1  to  A-4.  The  acquittal  of  A-5  was, however,  upheld by the High Court and we are not  concerned with him in this appeal. The  learned counsel appearing for the appellants  tried  to support  the  judgment of the  learned  Additional  Sessions Judge  and  pointed  out a  number  of  circumstances  which according to him cast a serious doubt on the veracity of the prosecution  case.  In the first place, it was  argued  that the  learned Additional Sessions Judge rightly held that  as the F.I.R. did not contain the overt acts attributed to each of the accused, the story of the prosecution must be held to be an after-thought.  Dealing with this aspect of the matter the  High Court pointed out that the F.I.R. was lodged  soon after  the  occurrence  and there was no  occasion  for  the informant to have mentioned all the material particulars  in the  F.  I. R. which had to be narrated and  proved  at  the trial.   We  find ourselves in complete agreement  with  the reasons  given by the High Court.  In fact we find from  the perusal of Ext.  P1 that all the essential details that  the

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F.I.R.  should contain are given there.  The names of  the accused are clearly mentioned, the circumstances leading  to the murderous assault on the deceased Linganna have 88 been  set out.  It has also been mentioned that the  accused got  down  from  the jeep along  with  three  strangers  and stabbed the deceased and then carried him away in the  jeep. It  is  also mentioned that the occurrence had  taken  place because  the  deceased had filed a civil  suit  against  A-1 which constituted the motive for the, murder.  Thus shorn of minutes   detail   the  broad  picture  presented   by   the prosecution was undoubtedly revealed in the F.I.R. which was lodged  very soon after the occurrence.  In our opinion,  it is neither, customary not necessary to mention every  minute detail  in the F.I.R. Chinna P.W.1 must have been  extremely perturbed  because the deceased Linganna had  been  suddenly attacked by a number of assailants and his body was  carried away.   It is in that state of mental agony that he was  not able  to  give  further  details  in  the  F.I.R.  We   are, therefore, clearly of the opinion that the reasons given  by the  learned  Additional Sessions Judge  for  rejecting  the prosecution case are wholly untenable in law. Another point taken by the learned Additional Sessions Judge was  that in the inquest report details of the  overt  acts’ committed by the various accused have not been mentioned  in the relevant column.  The learned Judge in fact has  assumed without  any  legal justification that because  the  details were  not mentioned in the requisite column of  the  inquest report,  therefore,  the presumption will be  that  the  eye witnesses did not mention the overt acts in their statements before  the police.  To begin with it seems to us  that  the learned  Additional  Session  Judges"  approach  is  legally erroneous.   A statement recorded by the police  during  the investigation,  is  not  at all admissible  and  the  proper procedure   is   to   confront  the   witnesses   with   the contradictions  when  they  are examined and  then  ask  the Investigating Officer regarding those contradictions.   This does  not appear to have done in this case.   Further  more, proceedings for inquest under s. 174 of the Code of Criminal Procedure  have  a very limited scope.  Section 174  of  the Code as it then stood read as follows :               "174.    Police  to  enquire  and  report   on               suicide. etc.               (1)   The  officer  in  charge  of  a   police               station or some other police officer specially               empowered  by  the State  Government  in               that  behalf, on receiving information that  a               person-               (a)   has committed suicide; or               (b)   has  been  killed by another, or  by  an               animal, or by machinery, or by an accident; or               (c)   has  died under circumstances raising  a               reasonable  suspicion that some  other  person               has  committed an offence;  shall  immediately               give   intimation  thereof  to   the   nearest               Magistrate  empowered to hold  inquests,  and,               unless   otherwise   directed  by   any   rule               prescribed by the State Government, or by  any               general  or special order of the  District  or               Sub  divisional Magistrate, shall  proceed  to               the  place  where the body  of  such  deceased               person is and there, in the presence of two or               more    respectable   inhabitants    of    the               neighborhood, shall make an investigation  and               draw up a report

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                                   89               of  the  apparent cause of  death,  describing               such  wounds,  fractures,  bruises  and  other               marks  of injury as may be found on the  body,               and stating in what manner, or by what  weapon               or  instrument (if any) such marks  appear  to               have been inflicted.               (2) *    *    *    *               (3)   When  there is any doubt  regarding  the               cause  of death, or when for any other  reason               the  police officer considers it expedient  so               to do, he shall, subject to such rules as  the               State Government may prescribe in this behalf,               forward  the  body, with a view to  its  being               examined,  to  the nearest Civil  Surgeon;  or               other qualified medical man appointed in  this               behalf  by the State Government, if the  state               of the weather and the distance admit of  its,               being  so  forwarded  without  risk  of   such               putrefaction on the road as would render  such               examination useless." A  perusal  of this provision would clearly  show  that  the object  or  the  proceedings  under  s.  174  is  merely  to ascertain  whether  a  person  has  died  under   suspicious circumstances  or an unnatural death and if so what  is  the apparent  cause  of the death.  The question  regarding  the details  as  to  bow  the  deceased  was  assaulted  or  who assaulted  him or under what circumstances he was  assaulted appears  to us to be foreign to the ambit and scope  of  the proceedings   under   s.  174.   In   these   circumstances, therefore,  neither in practice nor in law was it  necessary for  the  police  to have mentioned  these  details  in  the inquest  report.  The High Court has adverted to this  point and has rightly pointed out as follows               "The  learned Sessions Judge bad  also  stated               that  the details regarding the weapons  armed               by  each of the accused and which accused  had               attacked  on  which part of the  body  of  the               deceased  are not found in the inquest  report               and from this he sought to draw the  inference               that the statements of the witness now,  found               recorded under section 161 Cr.  P.C. could not               have been the statements then read over to the               panchayatdars.  Column 9 of the inquest report               shows  that the injuries on the deceased  were               caused  by knives and daggers.  Column 11  (a)               shows  that  Al  to  A3,  A4  and  A5  with  3               strangers  came in the jeep driven by A4,  got               down  the  jeep,  stabbed  the  deceased  with               daggers and knives, pushed P.W. 1, lifted  the               deceased, put him in the jeep, and drove’ away               the  jeep  and  death was the  result  of  the               injuries inflicted.  The object of holding any               inquest  as  can  be  seen  from  Section  174               Cr.P.C.  is  to find whether a person  died  a               natural death, or a homicidal death or due  to               suicide.   It was therefore not  necessary  to               enter all the details of the overt-acts in the               inquest report.  From the mere fact that these               details  were not noted in the inquest  report               it  cannot  be concluded that  the  statements               given by the witnesses and read over at               90               the  inquest did not contain those  overt-acts               and  the statements now produced are those  of

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             the witnesses which were taken later." The High Court has thus rightly explained that the omissions in  the  inquest  report  are  not  sufficient  to  put  the prosecution  out  of  Court and  the  learned   Additional Sessions  Judge  was not at all justified in  rejecting  the prosecution case in view of this alleged infirmity. The  learned  Additional  Sessions Judge was-  also  of  the opinion that there was no reliable evidence to identify  the dead  body of the deceased Linganna and on that  ground  the prosecution case could be rejected.  This line of  reasoning adopted by the Additional Sessions Judge is not borne out by the  facts.   The High Court pointed out in  their  judgment that  there,  was sufficient evidence before  the  Court  to identify the body of the deceased.  It is true that the dead body  of  the  deceased was bloated but  P.W.  16  the  Sub- Inspector  deposed in his evidence that the features of  the body  were quite clear and visible.  The photographs of  the body were taken by P.W. 19 and on seeing the photographs the High   Court  was  satisfied  that  the  body   was   easily identifiable.   P.W.  I Chinna who was fully  known  to  the deceased  and  who had accompanied him to  Anantpur  and  in whose  presence the murder took place said that he  went  to the place where the body was lying and identified the  body. The  High Court also pointed out that P.W. I said  that  the belt, M.O. 6 which was usually worn by the deceased was also found on the dead body, which completely clinches the issue. Although  P.W. I was cross-examined at very great length  it was  not suggested to him that the dead body found  was  not that  of  the deceased.  The body of the deceased  was  also identified  by another co-villager, and also by the  son  of the deceased.  In these circumstances, therefore, there  was abundant  evidence to prove the identification of  the  dead body  and  the finding of the  learned  Additional  Sessions Judge  is  based  on a misreading of the  evidence  on  this point. The  learned  Sessions Judge further held  that  the  motive ascribed to the appellants for committing the murder of  the deceased  was  not sufficient to impel them   to  plan  the murder  of  the  deceased.   This  finding  of  the  learned Sessions  Judge  is based purely  on  speculation.   Various persons  react to circumstances in different ways and it  is difficult  to  weigh the reaction of the persons  in  golden scales  with  absolute computorised accuracy.  There  is  no doubt  that  the deceased had drawn the accused  in  a  long litigation  involving  thousands of rupees as  a  result  of which  he  had to attend the Court at  Anantpur  on  various dates.   The  sequence  of  circumstances  under  which  the deceased  was  murdered clearly shows that there  could  not have been any other motive but the institution of the suit. The High Court has also pointed out that the prosecution has established good and sufficient motive for the murder of the deceased.  Futher more, in view of the independent testimony of P.Ws 1, 2 and 3 whom the High Court has believed, and  we see no reason to differ from the view of the High Court, the question  of motive becomes more or less academic.  On  this point also, in our opinion, the learned Additional  Sessions Judge has taken an absolutely wrong view.                              91 We have been taken through the entire evidence of P.W. 1,  2 & 3 who are independent witnesses and against whom no animus has  been established by the accused and we do not  see  any reason  to  disbelieve  their  evidence.   The  High  Court, therefore,  rightly  believed  their evidence  in  order  to accept  the prosecution case.  We do not find any  error  of law in the approach made by the High Court.

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It  was,  however,  submitted by  Mr.  Basi  Reddy,  learned counsel  for  the appellants that this was a case  in  which another  view  was  also  possible  on  the  evidence   and, therefore, the High Court ought not to have interfered  with the  order  of acquittal passed by  the  learned  Additional Sessions  Judge,  as held by this Court  in  several  cases. After  going through the evidence and circumstances  of  the present  case, however, we are clearly of the  opinion  that the  ratio  of  the cases decided by this  Court  is  wholly inapplicable  to  the  instant  case  and,  therefore,   the contention  advanced  by the counsel for the  appellants  in this Court is overruled.  This is not at all a case where  a second  view was possible.  On the other hand it was a  case where  the  learned  Additional  Sessions  Judge  had  given untenable  reasons  and  where his  approach  was  not  only perverse,    but   also   legally   erroneous.    In    such circumstances,  it can not be disputed that the  High  Court had ample powers to reverse the order of acquittal under  s. 417 of the Code of Criminal Procedure. As  regards  the case of A-4, we find that it  stands  on  a different footing and there does not appear to be any  legal evidence against this appellant.  We are also satisfied that there  is no reliable evidence to prove the charge under  s. 364  I.P.C. According to the medical evidence  the  deceased sustained  as  many as six injuries.  The position  and  the nature of the injuries particularly on the various parts  of the body clearly show that they must have been inflicted  on the  deceased  outside the jeep and not when  the  body  was carried in the jeep of A-1.  The medical evidence also shows that  the deceased could have died instantly within  minutes of the occurrence.  On the other hand there is absolutely no evidence  to show that any injury was inflicted either  when the  deceased was put into the jeep or when he  was  carried away  in the jeep.  From these circumstances, therefore,  it is manifest that all the six injuries must have been  caused during  the course of the occurrence on the spot before  the body  was  put  into the jeep and  in  all  probability  the deceased  must have died at the spot.  If this was so,  then the charge under s.364 I.P.C. must necessarily fail, because there  was  no question of kidnapping the deceased  for  the deceased  had died even before he was kidnapped.  So far  as A-1  to  A-4 are concerned, this question is  more  or  less academic  because  they have already been convicted  by  the High Court under s. 302 read with s. 34 and A-4 under s. 302 read with s. 149 I.P.C. As regards A-4 is concerned, we  are satisfied  that there is no reliable evidence to  prove  his actual  complicity in the murder of the deceased.  The  case of  the  prosecution is that A-4 who is a young  boy  of  18 years  was employed as a driver of the jeep after  the  same was purchased by A-1.  It is true that A-4 had taken A-1  to A-3 to the scene of occurrence.  But this was a part of  his duty  and that by itself would not show a complicity in  the offence  of murder which was committed later.   Although  in the course of the trial the 92 witnesses have stated that this appellant also tried to take the  body in the jeep while he was sitting there or that  he had  come out of the jeep, this evidence cannot be  accepted because  it is nowhere mentioned in the F.I.R. that A-4  had taken  any  part in the assault on the deceased.   There  is only  a reference to the three strangers and A-1 to A-3  and there  is no reference to A-4 excepting that he was  driving the  jeep.   In these circumstances we are unable  to  agree that  A-4  had  shared the common object  of  murdering  the deceased  at  any stage.  The only offence that  could  have

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been committed by A-4 was under s. 201 I.P.C. because  after the  deceased was put into the jeep he knew fully well  that he had been assaulted by the appellants and was being  taken away  for  the  purpose  of  disposal  of  the  dead   body. Unfortunately, however, though A-4 was charged under s.  201 he  was acquitted by the learned Additional  Sessions  Judge and  even  the High Court has not convicted him  under  that section.  No appeal against his acquittal has been filed  in this  Court.   In these circumstances therefore  it  is  not possible  for us to convict him for the first time under  s. 201  I.P.C.  in  the  present  appeal.   For  these  reasons therefore  it follows that A-4, namely, Budekula  Kullayappa is  entitled  to acquittal as his complicity in  the  actual assault  on  the deceased has not been proved.  Nor  has  it been  proved  that he had shared the common  object  of  the crime with others. The  result is that convictions and sentences passed on  all the  appellants under s. 364 read with s. 34 I.P.C. are  set aside.   The orders of conviction and sentence under s.  302 read  with s. 34 in so far as A-1 to A-3 are  concerned  are upheld.   The appeal of A-4 is allowed and the order of  the High Court convicting him under s. 147 and under s. 302 read with s. 149 is set aside and he is acquitted and is directed to  be  released forthwith.  The appeals of A-1 to  A-3  are dismissed. V.P.S.                                               Appeals partly allowed 93