JUDGMENT - D.G. DESHPANDE, J.:---This is an appeal by accused who has been convicted by the II Additional Sessions Judge, Solapur, for offence under section 302 of the Indian Penal Code (I.P.C.) and sentenced to life imprisonment for committing the murder of the Police Constable Bansode belonging to Solapur Taluka Police Station. As per their records there were 5 more accused, some of whom were convicted by the trial Court for committing offence but they have not preferred any appeal as it appears that they had already undergone the sentence. 2. The prosecution case is that P.W. 1 Constable Sangolgi and the deceased Bansode were attached to Solapur Taluka Police Station on the date of the incident i.e. on 4th March, 1996. They were in the Police Station at 8 O'clock when the roll call was taken. They were given duty of naka bandi night patrolling as per the entry in that regard produced by the prosecution. However, accord to them i.e. the Constable Sangolgi even they were given the specific duty, they decided of their own accord to go to Tale-Hipparge village, where Pardhis were staying, with a view to arrest some of them. Therefore, while they were on their way to Kumbhar Ves, near to Hipparge, P.W. 1 Sangolgi made a phone call to the Police Station and gave information that they were proceeding to village Hipparge to collect information about Pardhis. It is further the case of the prosecution that while they were on the road on their motorcycle they saw all the six accused, they identified two accused and accused Raju was called by his name. According to the prosecution the accused were known to both the Constables i.e. Constable Sangolgi and deceased Head Constable Bansode. When the accused Raju was called, he told the Constables that there was Devkarya at his home, therefore, he would not accompany the police. It appears that police tried to take them in custody or arrest them forcibly. There was a struggle between all the accused and the two constables. Some of the accused i.e. accused No. 1 and 2, mainly pelted stones and one of the stone hit Bansode seriously. It appears that police tried to take them in custody or arrest them forcibly. There was a struggle between all the accused and the two constables. Some of the accused i.e. accused No. 1 and 2, mainly pelted stones and one of the stone hit Bansode seriously. He fell down on the ground and could not stand again and while he was on the ground the present appellant is alleged to have hit him hard by throwing a very huge stone on the skull resulting in fracture and instantaneous death. According to the prosecution while this marpit was going on the same was witnessed by two persons who were passing by the road on the scooter. One of them being examined by the prosecution as P.W. 4 Sawant. According to the prosecution, Constable Sangolgi immediately went to the nearby naka, from there he phoned to the Solapur Taluka Police Station and gave information about the incident which was noted down in the station diary. Immediately this information was communicated to the P.I. Mujawar, who along with the police party came to the scene of offence and thereafter according to P.I. Mujawar, he recorded the statement of Sangolgi and treated it as F.I.R. and then investigation was started. 3. During the course of investigation statement of both the persons namely one who was driving the scooter and the other the pillion rider were recorded. Inquest panchanama was made. Dead body of P.C. Bansode was sent for post-mortem and the accused Nos. 4 and 5 came to be arrested on 18/5 form Bombay. Accused Nos. 2, 3 and 5 were arrested on 20th May and accused No. 6 was arrested on 20th July. It is alleged that after arrest of accused No. 2, police recovered the blood stained clothes on the basis of his statement under section 27 of the Evidence Act. After completing investigation, charge-sheet was filed. The accused came to be tried before the Additional Sessions Judge Solapur, who ultimately accepted the entire prosecution case and convicted all the accused. It is from this conviction that the present accused-appellant who has been sentenced to life imprisonment for offence under section 302 of the I.P.C. has preferred this appeal. 4. We have heard Shri K.V. Reddy learned Advocate for the accused-appellants and Shri Pravin Singhal, learned A.P.P. for the State. 5. It is from this conviction that the present accused-appellant who has been sentenced to life imprisonment for offence under section 302 of the I.P.C. has preferred this appeal. 4. We have heard Shri K.V. Reddy learned Advocate for the accused-appellants and Shri Pravin Singhal, learned A.P.P. for the State. 5. According to the learned Advocate for the accused-appellants, the entire incident narrated by Head Constable Sangolgi is false, concocted and this case not only against the present appellant but against the other convicted accused who have not preferred any appeal, is also false one. According to him this case was nothing but an attempt to foist the murder of the Head Constable on the accused. Therefore, the prosecution case was liable to be rejected and the accused No. 2 was entitled for acquittal. 6. On the other hand the learned A.P.P. fairly conceded that even, if there are certain lacunas in the prosecution case, the accused was not entitled for clean acquittal but in any case his conviction was liable to be altered from sections 302 to 304 Part II. 7. The question is whether prosecution case is liable to be rejected in its entirety. On account of the inherent lacunas, defects and falsities and, we have no hesitation in holding that the case is of such a type that it has to be outright rejected, even though the trial Court has while convicting the accused given his reasoning for accepting the entire prosecution case. 8. Admittedly the entire case centres around the oral evidence of Constable Sangolgi who has been examined by the prosecution as P.W. 1 In his evidence Sangolgi has given all the details as to how on 4th May, 1996, they were attached to the Police Station. How and when they left the Police Station, what were the duties assigned to them, how they went to village Hipparge and how the incident took place which included the detail of throwing of stone weighing 10 Kgs by the present appellants directly on the head of Constable Bansode. 9. Even if the story narrated by P.W. 1, if accepted as it is the case has to result in clean acquittal of the present accused apart from the following lacuna, or defects of major nature in the evidence of this witness. 10. P.W. 1 Sangolgi has stated that on 4th May, 1996, they i.e. Mr. 9. Even if the story narrated by P.W. 1, if accepted as it is the case has to result in clean acquittal of the present accused apart from the following lacuna, or defects of major nature in the evidence of this witness. 10. P.W. 1 Sangolgi has stated that on 4th May, 1996, they i.e. Mr. Sangolgi and the deceased were attached to Taluka Police Station, Solapur. They left Police Station at 9 p.m. This constable was accompanied by the deceased Bansode. Both of them decided that they would go to Taluka Hipparge to collect information about Pardhis who had come there. This is the specific statement made on oath by constable Sangolgi. Thereafter they were to Kumbharvas chowk from where they made a phone call to Taluka Police Station and gave information that they are proceeding to Hipparge to collect information. 11. This part of the story which is the first important part of the prosecution case is falsified by the prosecution evidence itself. P.I. Mujawar who was Investigating Officer has produced Exhibit 73, which is the station diary entry recorded in the Solapur Taluka Police Station at 19 p.m. As per this entry, Bansode was given the duty of Naka Bandi checking night round. There is no mention in this entry about any other duty being given to Constable Sangolgi (P.W. 1). However, if Sangolgi was accompanied with Bansode and Bansode was Head Constable and this Sangolgi was mere an assistant then it naturally follows that he was supposed to follow Head Constable Bansode. 12. Since Exhibit 73 clearly and specifically mentions that the duty that was given to the deceased Bansode was of Naka Bandi checking night round and none else then the question is then how they proceeded to Tale-Hipparge? We sought the explanation of the learned A.P.P. in this regard but he could not give any satisfactory explanation and, therefore, it has to be held that the entry shows that the duty of deceased Head Constable Bansode and P.W. 1 was of naka checking meaning thereby naka checking within the limits of Solapur city. No other explanation of this entry is given and, therefore, we are drawing natural inference which is clear from this. 13. When Exhibit 73 coupled with the evidence of P.I. Mujawar shows that deceased Constable Bansode was given Naka Bandi checking night round duty. No other explanation of this entry is given and, therefore, we are drawing natural inference which is clear from this. 13. When Exhibit 73 coupled with the evidence of P.I. Mujawar shows that deceased Constable Bansode was given Naka Bandi checking night round duty. It follows that they had no business to go out of their duty limits and go to the village Hipparge. There is absolutely no explanation coming from P.W. 1 as to why they went beyond the limits of their duty area to village Hipparge. 14. It was tried to be contended by the learned A.P.P. that these two Constables were also attached to detection branch and, therefore, they had the liberty to go even beyond the area of their duty. It at all they had important information about crime detection and therefore, if after receiving information both deceased Constable Bansode and P.W. 1 Sangolgi decided to go to village Tale-Hipparge then there was nothing wrong and no fault could be found in doing so. 15. We could have accepted this submission of the learned A.P.P. If P.W. 1 had come to the Court with the case that while they were performing their naka bandi checking night round duty they came to know from certain sources during that period between 9 p.m. to 10.45 p.m. that some of the Pardhi accused who were wanted in other case were staying in village Hipparge and if they had not immediately proceeded to arrest him accused were likely to abscond and leave village Hipparge. However, from the evidence of P.W. 1 it is clear that both were knowing even before the duty was allotted to them at 9 p.m. that Pardhis are staying in village Hipparge. Therefore, it is not that they got some more information after 9 p.m. from other sources and then considering the emergency they decided to go to village Hipparge which was outside the jurisdiction of their duty. 16. The learned A.P.P. tried to place reliance upon the evidence of P.W. 1 Sangolgi to the effect that while going to Hipparge Constable Bansode made a phone call from Kumbharvas Chowk to the Police Station to intimate the Police Station that they were proceeding towards village Hipparge for collecting correct information. 16. The learned A.P.P. tried to place reliance upon the evidence of P.W. 1 Sangolgi to the effect that while going to Hipparge Constable Bansode made a phone call from Kumbharvas Chowk to the Police Station to intimate the Police Station that they were proceeding towards village Hipparge for collecting correct information. In the circumstances in which this entry is produced and the subsequent conduct of this witness creates strong doubt about the genuineness of this entry and we have no alternative but to hold that this entry appears to have been made subsequently in order to substantiate the theory of the prosecution and to explain the presence of both the P.W. 1 and the deceased at a place away from their assigned duty area. 17. The question, therefore, is, if this part of the evidence of the P.W. 1 is rejected, the question remains as to what was the business for P.W. 1 Sangolgi and deceased Bansode to go to village Hipparge. Obviously there is no explanation from the prosecution in this regard, the case become suspicious right from its foundation. 18. Before considering the evidence of P.W. 1 recorded and the incident of assault, one aspect is required to be considered i.e. an attempt is made by P.W. 1 to bring in an eye-witness to support his testimony in the form of P.W. 2. In this regard P.W. 1 has stated that while that marpit or stone throwing or pelting of stone was going on a scooter came by the road. Two persons arrived sitting on the scooter. They saw the incident and the scooter left after Constable Bansode was murdered by pelting stone on his head and at that time before the scooter left Constable Sangolgi noted the number of the scooter and communicated that number to the Police Station when he gave his first information on phone. 19. This part of the evidence is nothing but an attempt of the prosecution and P.W. 2 Constable Sangolgi to give support to his version to prove that he is truthful witness. The improbabilities in this part of piece of evidence are that firstly nothing is brought in the evidence of P.W. 1 Sangolgi that the place where this marpit or stone throwing took place had any electric light. Not a word is uttered by him in the F.I.R. given to the police or in his evidence. The improbabilities in this part of piece of evidence are that firstly nothing is brought in the evidence of P.W. 1 Sangolgi that the place where this marpit or stone throwing took place had any electric light. Not a word is uttered by him in the F.I.R. given to the police or in his evidence. These records and proceedings of the trial Court show that the spot was inspected and visited by the trial Court in order to ascertain as to the exact place where the alleged murder took place and in the notes prepared by the trial Court in that regard there is specific mention that no where near about the place where the incident took place there are any electric light. Therefore, when admittedly the incident took place at about 10 p.m. when there are no electric lights or any other source of light it is difficult to believe that P.W. 1 in the state of mind was alert enough to note the number plate of the scooter and wrote it in his diary. He does not say that he noticed the persons sitting on the scooter. He does not say whether they were male or female but he is specific enough to say that he noted the number on the number plate of the scooter and communicated the said number to the Police Station. This part of the evidence has to be outright rejected as palpably false. 20. If this part of evidence is rejected and which has been rejected for the reasons stated above, the entire story given by the P.W. 1 becomes highly suspicious. 21. So far as the actual story of assault is given, what is stated by P.W. 1 Sangolgi is that : "Near Tale-Hipparge we came across four women and two men. We stopped the motor-cycle and went near them. Bansode asked to one of them as "Raja, come here, there is matter with you'. That one person by name Raja told Bansode that there was Devkarya (Religion function) at his house and he would not come. Then Raja told us as to how we could dare to come there. He said that you police are Madarchod. Raja's brother Suresh picked up a stone and said that he would see us. He rushed towards us. That time Bansode asked me to go to Police Station and call for Jeep. Then Raja told us as to how we could dare to come there. He said that you police are Madarchod. Raja's brother Suresh picked up a stone and said that he would see us. He rushed towards us. That time Bansode asked me to go to Police Station and call for Jeep. That time Suresh pelted stone at Bansode which hit on head of Bansode. Accused No. 1 before the Court is Suresh. Accused No. 2 is same Raju. Then the women present there started pushing and pulling to me and Bansode. Accused No. 3 to 6 before the Court are same women. That time I asked accused to relieve us and we would not do anything to them. Then accused No. 2 pelted stone which hit on the head of Bansode. He fell down by the side of road. That time accused No. 1 pelted stones at me which hit on my left shoulder. That time accused No. 2 lifted a big stone by his both hands and threw the same on the head of Bansode who was lying in the ground. His skull was broken and there was bleeding." 22. A careful scrutiny of the aforesaid oral testimony of P.W. 1 Sangolgi would show that even this narration of the incident does not inspire confidence. Firstly two constables were on the side and two males together along 4 female on the other side (if at all the story of P.W. 1 Sangolgi is scrutinised as accused), it is difficult to believe that two constables could not over power two male accused in spite of the resistance of four (4) females who were present there. Secondly if at all they wanted to take accused Raja with them, the evidence of P.W. 1 Sangolgi does not show that there was any serious provocation on the part of P.W. 1 or deceased Bansode to any of the accused, so as to make them ferrocious to the extent of committing murder. What the evidence shows that the deceased Bansode merely asked Raja to "come here there is some matter with you. What the evidence shows that the deceased Bansode merely asked Raja to "come here there is some matter with you. Raja then replied that there was Devkarya i.e. religious function at his house and he would not come." Now if this talk and version is as simple as it is tried to be shown by P.W. 1 Sangolgi, then the two constable could have persuaded or if pursuation failed, could have with little force and efforts prevailed upon the said Raja to come to the Police Station. However, immediately after the aforesaid conversation then Raja told them as to how could they come there. Then Raja picked up a stone and started throwing. According to Sangolgi, they did not do anything to prevent the accused and if, that is so, it is difficult to believe that accused who are frequent visitors to Police Station and jail would on merely seeing the police start pelting stones. 23. Counsel for the appellant pointed out, if the incident is taken as it is, if the distance between the accused and P.W. 1 Sangolgi is taken as it is, then there was no scope nor any opportunity nor any reason for the accused to pelt the stones at the police. It is true that in a marpit like this, we can not measure the distances in inches and feet. However, fact remains that there was no provocation from the police nor from the accused. Atleast this is apparent from the evidence of P.W. 1 and there was no reason for any of the accused to pelt stones towards P.W. 1 or the deceased Constable. 24. P.W. 1 says that one of the stones hit on the head of Bansode. Bansode fell down by the side of the road. Thereafter accused No. 1 pelted stone which hit on the shoulder of P.W. 1 and at that time accused No. 2 lifted a big stone by his both the hands and threw it on the head of Bansode who was lying on the ground which resulted in the breaking of skull of deceased Bansode. 25. Counsel for the appellant pointed out from the cross-examination that there was ample time for Bansode to rise and stand again. 25. Counsel for the appellant pointed out from the cross-examination that there was ample time for Bansode to rise and stand again. Even, if it is accepted that one of the stones hit on his head and fell down on the ground and during this period neither any attempt is made by the P.W. 1 to come to the rescue of Bansode nor any attempt is made by the Bansode to stand or to avoid subsequent fatal blow. However, this part of the prosecution case may not be rejected because of the time gap and time during given by the P.W. 1 but the medical evidence tendered by the prosecution does not support the evidence given by P.W. 1. The story given by P.W. 1 is only one stone which was lifted by the accused No. 2 which was very big, resulted in breaking the skull and started bleeding. However, the post-mortem notes followed by the oral evidence of the P.W. 7 Dr. Harish Mane gives us totally a different picture. P.W. 7 Dr. Mane who was attached to Dr. V.K. Medical College, Solapur at the relevant time has performed the postmortem on the body of Bansode. In his evidence he has stated that he noticed five external injuries: 1) C.L.W. over right eye-brow, veritificle, measuring 1 x ½ inches, skin deep, no fracture. 2) C.L.W. over forehead on left side, measuring 1 x ½ inches, skin deep, no fracture. 3) C.L.W. the angle of the mandile on lt. side measuring ½ x ½ inches bone deep, no fracture. 4) Abrasion over lateral surface of lt. leg, below knee measuring 5 inches, in length and 3 inches in breadth. 5) An oblique wound over scalp starting from fronto parietal joint in the centre to the right parietal existence. Measuring 5 x ½ inches wound shows witish brain tissue and haemorrhages (Dura Raptured). and thus he also noted 5 internal injuries: 1. Fracture skull in sagital suture, centrally measuring about 6 inches. 2. Fracture in parieto occipetal junction on left side 3 inches in length. 3. Fracture parieto temporal junction on right side measuring about 1 inches in length. 4. Fracture temporal bone on right side measuring about 1 inches in length. 5. Base of the skull shows fracture centrally in entries oranical fossa, sphanrid bone and middle crenial fossa. 26. 2. Fracture in parieto occipetal junction on left side 3 inches in length. 3. Fracture parieto temporal junction on right side measuring about 1 inches in length. 4. Fracture temporal bone on right side measuring about 1 inches in length. 5. Base of the skull shows fracture centrally in entries oranical fossa, sphanrid bone and middle crenial fossa. 26. According to him so far as cause of death is concerned, Doctor has opined that all the external and internal injuries were combinedly sufficient in the ordinary course of nature to cause death. 27. So far as external injuries are concerned, the first four injuries did not result in any fracture. Cause of death that has been specifically noted by Dr. Mane it is only the 5th external injury which speaks of the fracture of skull and the location of the injury is fronto pareital joint in the centre to the right parietal exinence. According to the prosecution and according to P.W. 1 it was this injury No. 5 that has resulted in the fracture of the skull and P.W. 1 is very specific that only one big stone was thrown on the head of deceased Bansode which resulted in this injury at Serial No. 5 and in the death of Bansode. However, the internal injuries described by Dr. Shinde does not support the oral evidence of P.W. 1. 28. Dr. Mane has stated on oath in para 3 of his deposition that he noted five internal fractures to the skull which have been noted above. We repeatedly questioned the learned A.P.P. about the five fractures. We also asked him whether it was the case of the prosecution that one big stone has resulted in as many as five fractures or there were five different place and given by five different weapons, five different stones by more than one person. The learned A.P.P. could not throw any light in this regard and rightly so because he could not have added anything of his own unless supported by medical evidence. 29. So far as Dr. Mane is concerned, not a single question is asked to him in examination-in-chief regarding the five fractures and its explanation was necessary because if according to the prosecution only one serious injury resulted in the death and fracture then how it was that Dr. Mane noted five fractures to the skull. 30. 29. So far as Dr. Mane is concerned, not a single question is asked to him in examination-in-chief regarding the five fractures and its explanation was necessary because if according to the prosecution only one serious injury resulted in the death and fracture then how it was that Dr. Mane noted five fractures to the skull. 30. This is, therefore, a case where medical evidence speaks of something else and the evidence of P.W. 1 speaks of something else. This also means that P.W. 1 does not get support to his testimony from medical evidence. Therefore, for the defects in evidence of P.W. 1 which was noted earlier coupled with the facts that the P.W. 1 is not supported by medical evidence, the argument of the defence gets strong support that P.W. 1 has not at all witnessed the incidents and he has been cooked up by the prosecution to make a case against all the accused. 31. The matter does not end here. Even the conduct of this witness P.W. 1 after the incident does not inspire confidence. He has stated above that the accused No. 2 threw the stone. The skull of Bansode was broken and started bleeding. Then accused Nos. 1 and 2 rushed towards him saying that they would finish him. In his evidence P.W. 1 does not say that accused who were on the spot left the scene of offence. He does not say that they left after giving threats to the driver of the scooter and the pillion rider. He does not say that they left after giving threats to them. He does not say how and where he found and concluded that Bansode was dead. He does not say that an attempt was made by him to save Bansode, to take Bansode to any doctor or hospital to find out whether Bansode was died or alive. To find out whether Bansode required water in the last moment. He simply left the spot on the motor cycle and came to the Tejapur Naka and made a phone call to the Police Station. 32. To find out whether Bansode required water in the last moment. He simply left the spot on the motor cycle and came to the Tejapur Naka and made a phone call to the Police Station. 32. Therefore, this is a case where a witness who happens to be a Police Constable is trying to putforth a case that even without bothering to find out whether his colleague was dead or alive, he left the spot and made a report on phone to the Police Station that the colleague was already dead. This whole conduct is highly suspicious and to say in the least it has to be said that it does not inspire any confidence at all. 33. According to the evidence of P.W. 1 he gave information of this incident to the Police Station. It was reduced into writing in the station diary. However, according to P.I. Mujawar, he recorded the statement of P.W. 1 after he reached to the spot and it was treated as F.I.R. Obviously the statement recorded by P.I. Mujawar, cannot be treated as F.I.R. and the information given by the P.W. 1 on phone as deposed by him in para 3 of evidence has to be referred as F.I.R. However, nothing much turn around this fact and the information is treated as F.I.R. because there is no material defect though the statement recorded by P.I. Mujawar is a lengthy and detailed statement. 34. Since the entire prosecution case revolves around the evidence of P.W. 1 supported by P.W. 4 who was riding on the scooter and since we have also observed and held that the introduction of P.W. 4 the person riding the scooter is an attempt to exaggerate the case and to get support, we are not at all inclined to accept the evidence of P.W. 1 Sangolgi. Even if the evidence of P.W. 4 is considered it is full of doubt because it does not say that even though P.W. 4 was accompanied by one more person and he was knowing that two persons were assaulted Police Constable he did not make any attempt to save them. He did not disclose it to anybody and even though he left the spot on the scooter he did not report the matter to Police Station or thought it necessary and he remained continued at his juncture till he was approached by the police. 35. He did not disclose it to anybody and even though he left the spot on the scooter he did not report the matter to Police Station or thought it necessary and he remained continued at his juncture till he was approached by the police. 35. P.W. 1 says in his evidence that after the incident he directly went to the Police Station and lodged his report but at other place he says that he immediately reported this incident on phone to the Police Station and Investigating Officer Mujawar says that he recorded the F.I.R. at the scene of offence when all the police party came in a jeep. There is, therefore, basic contradiction regarding the place and time where the F.I.R. was recorded. 36. Therefore, once the oral evidence of P.W. 1 has to be rejected for all the infirmities and improbabilities which were found as stated above, it has to be concluded that the prosecution has miserably failed to prove the case against the accused No. 2 in particular because since the other accused have accepted their conviction and have not filed any appeal it is not necessary to make any comment in their favour. 37. In this last attempt to defend the prosecution case, the learned A.P.P. contended that the clothes of the accused No. 2 were recovered under section 27 of the Evidence Act, that the clothes contained blood stains and that blood group 'O' which was the blood group of the deceased was found on these clothes and, therefore, this is a clinching piece of evidence against accused No. 2. In any other case we would have accepted this piece of evidence as a material clinching piece of evidence against the accused. However, when the entire prosecution case is found to be doubtful and suspicious, we are not inclined to accept this piece of evidence against accused No. 2. 38. There is one more strong reason for doing so and it is that when the clothes were recovered from the accused No. 2 and panchanama was made, the panchanama reflected that there were blood stains on the shirt also, both in the front side as well as the in the back side. 38. There is one more strong reason for doing so and it is that when the clothes were recovered from the accused No. 2 and panchanama was made, the panchanama reflected that there were blood stains on the shirt also, both in the front side as well as the in the back side. In this regard a very intelligent and pointed question was put by the defence to the doctor, who conducted the post-mortem and doctor admitted in para 5 of his cross-examination that "unless there is fierce force blood drops would not go up". 39. To understand the implication of this question we, once again revert back to the oral evidence of P.W. 1. He has stated that accused No. 2 lifted a very big stone (admittedly while accused No. 2 was standing, threw that stone on the head of Bansode who was lying on the ground) in any case the distance between the head and the shirt of Bansode was more than 4 to 5 feet. Therefore, finding of blood stains on the shirt, not only in the front but also in the back is most unnatural particularly when Doctor himself in his cross-examination has admitted that unless there is fierce force blood drops go up. It is difficult to hold that blood drops emitted from the skull to go to such a height as to make their impression on the shirt both in the front portion as well as in the back portion. 40. The learned A.P.P. also tried to contend that all the accused were absconding and they could not trace and arrest immediately after the incident. Assuming that this was so, this lonely circumstance cannot be indicative of guilty mind and even if it is held of indicative of guilty mind, conviction of accused No. 2 cannot be upheld. 41. For all these reasons, the appeal is required to be allowed. It is allowed. The conviction of the appellant-accused under section 302 simplictor. Section 352 r/w 149, 353 r/w 149 is set aside. All entire conviction including this is set aside. He should be immediately set at liberty, if not required in any other matter. Appeal allowed. -----