( 1 ) A2, who was convicted for an offence under Section 364 IPC and sentenced to undergo rigorous imprisonment for a period of four years and also to pay a fine of Rs. 500/- in default, to undergo rigorous imprisonment for one month in Sessions Case No. 101 of 1995 on the file of Additional Sessions Judge, khammam, on 13. 2. 1998, had preferred the present appeal. ( 2 ) SRI P. Prabhakar Reddy, Counsel representing the Appellant-Accused No. 2 would contend that the charges framed as against A1 to A5 in Sessions Case No. 101 of 1995 were under Sections 147, 302 read with Section 149 IPC and no specific charge was framed under Section 364 IPC. The learned Counsel also would contend that section 364 IPC is a substantive and distinct offence falling under different chapter altogether and in the absence of framing of a specific charge in this regard, serious prejudice is caused and thus, the trial itself is vitiated and the Appellant-A2 is entitled for an acquittal on this ground alone. The learned Counsel also would contend that even otherwise the ingredients under section 364 IPC are not satisfied. The learned Counsel would submit that the evidence of P. W. I-son of the deceased, the alleged eye-witness was disbelieved, and that the learned Judge having recorded an acquittal in relation to the charges under sections 147, 302 read with Section 149 ipc, definitely erred in convicting the appellant-A2 only under Section 364 IPC. The learned Counsel had taken this Court through the evidence of P. Ws. l to 9 and also Exs. Pl to P8 and also M. O. I and would contend that an acquittal to be recorded even in the case of Appellant-A2. The learned Counsel also placed strong reliance on Sohan Lal alias Shohan Singh v. State of punjab, 2004 (1) ALD (Crl.) 1 (SC) = 2003 crl. LJ 4569. l to 9 and also Exs. Pl to P8 and also M. O. I and would contend that an acquittal to be recorded even in the case of Appellant-A2. The learned Counsel also placed strong reliance on Sohan Lal alias Shohan Singh v. State of punjab, 2004 (1) ALD (Crl.) 1 (SC) = 2003 crl. LJ 4569. ( 3 ) PER contra, the learned Additional public Prosecutor would contend that section 364 IPC deals with kidnapping or abducting in order to murder and this cannot be said to be a distinct offence since it is related to murder, and on facts, the learned judge came to the conclusion that the ingredients of Section 364 IPC are satisfied so far as it relates to the Appellant-A2 and had recorded conviction and had sentenced him accordingly, and that no prejudice is caused to the Appellant-A2. The learned Additional Public Prosecutor placed strong reliance on Banwarilal jhunjhunwala v. Union of India, AIR 1963 sc 1620 , in this regard. ( 4 ) HEARD the Counsel on record. Perused the oral and documentary evidence and also the findings recorded by the learned Judge. ( 5 ) THIS is an appeal preferred by the Appellant-A2 as against the judgment dated 13. 2. 1998 in Sessions Case No. 101 of 1995 on the file of the learned Additional sessions Judge, Khammam. It appears that a5 died and charges under Sections 147 and 302 read with Section 149 IPC were framed as against A1 to A. 4. But ultimately, conviction was recorded as against the appellant-A 2 only. ( 6 ) FACTS in brief: the version of the prosecution is that the wife of A1 was died about a year prior to the incident and he believed that the death caused by the deceased by his sorcery and in this connection, a panchayat was also held in the village wherein he was fined a bull to be given to the villagers and a dinner was also given to the villagers in this connection in lieu of the said fine. Al was not satisfied with the said fine in the panchayat and in view of the same, al had bore grudge against the deceased and he was waiting for a chance to take revenge. On 2. 3. Al was not satisfied with the said fine in the panchayat and in view of the same, al had bore grudge against the deceased and he was waiting for a chance to take revenge. On 2. 3. 1994 evening Al to A5 formed themselves into an unlawful assembly and while taking toddy, they planned and decided to do away with the life of the deceased. At midnight of 2/3-3-1994, A2 and A5 went to the house of the deceased and woke up him while he was sleeping and asked him to come with mem by saying that they got small work with him. Upon which, P. Ws. 1 and 2 son and wife of the deceased intervened and stopped the deceased not to go with A2 and A. 5. But the deceased followed A2 and A5, as well as P. W1 to the out skirts where A1, A3 and A4 were there under a tree waiting for them. In pursuance of the common object, a1 to A5 formed themselves into an unlawful assembly, way laid and Al beat the deceased, and the deceased fell down, a2 caught hold of hands of the deceased, a3 and A4 caught hold of the legs and a5 caught hold of the head of the deceased, al killed the deceased by cutting his throat with geetakathi, which was witnessed by kudiam Siramaiah, Kudiam Chinnaiah and kudiam Ramaiah. A1 to A5 also threatened kudiam Siramaiah with dire consequences and escaped from the scene. P. W. I with fear returned to the house and informed the same to his mother-P. W. 2. Kudiam chinnaiah and Kudiam Ramaiah, who had witnessed the incident kept quiet out of fear. On 3. 3. 1994 Kudiam Siramaiah and kudiam Muthamma went to the scene and found the dead body under a tree. At 10. 00 a. m. Kudiam Siramaiah came to chinthur Police Station and lodged a written complaint. Basing on the same a case in crime No. 8 of 1994 was registered by chinthur Police. ( 7 ) TO prove the case of the prosecution, p. Ws. l to 9 were examined and Exs. Pl to p. 8 and M. O. I were marked. The learned judge after recording reasons, recorded acquittal of all the accused under Sections 147 and 302 read with Section 149 IPC, but however, convicted the Appellant-A2 only under Section 364 IPC. l to 9 were examined and Exs. Pl to p. 8 and M. O. I were marked. The learned judge after recording reasons, recorded acquittal of all the accused under Sections 147 and 302 read with Section 149 IPC, but however, convicted the Appellant-A2 only under Section 364 IPC. ( 8 ) P. W. I who is the son of the deceased deposed about the incident that the accused had taken his father to Vippa tree, beat his father and A1 cut the throat of his father with a knife and killed and that he returned home and informed the same. This witness also deposed about the panchayat held prior to the incident and the other aspects. ( 9 ) P. W. 2 is the mother of P. W. 1 and the wife of the deceased, and she deposed about P. W. 1 coming and informing her about the incident. She also deposed that on the next day morning, she went to the dead body and then P. W1 to the Police Station and presented the report. ( 10 ) P. W. 3 is the brother of the deceased. He also deposed in detail about the post incident events. P. W. 4 deposed about the panchayat and the imposition of penalty. ( 11 ) P. W. 5 deposed relating to the inquest over the dead body of the deceased at Vippa tree and this witness also deposed that they noticed the throat of the deceased was cut with a sharp weapon. Ex. P2 is the panchanama. ( 12 ) P. W. 6 deposed that they found Al to A4 in the police custody and at the request of the police, he interrogated the Al and A1 disclosed his name and particulars and about the commission of the offence and thereby a panchanama (Ex. P3) was drafted, disclosing that Al used a knife as weapon of offence. He deposed that Al had taken them to his house and brought M. O. 1 - knife from his house. ( 13 ) P. W. 7 who is the Assistant Sub- inspector of Police, Chintur, received Ex. P. 1- complaint at about 10. 00 a. m. on 3. 3. 1994 and registered the same as a case in crime No. 8 of 1994. ( 14 ) P. W. S-CIRCLE Inspector of Police had deposed about all the. details of investigation, preparation of Ex. P. 1- complaint at about 10. 00 a. m. on 3. 3. 1994 and registered the same as a case in crime No. 8 of 1994. ( 14 ) P. W. S-CIRCLE Inspector of Police had deposed about all the. details of investigation, preparation of Ex. P6-rough sketch, examination of witnesses, arrest of the accused, preparation of the panchanamas and the seizure of M. O. 1- knife. This witness was cross-examined at length. ( 15 ) P. W. 9, who is the Medical Officer, government Hospital, Bhadrachalam, had conducted autopsy over the dead body of the deceased on 4. 3. 1994, and had explained the injuries on the dead body and also deposed that Injury No. 1 is sufficient to cause the death in ordinary course. Ex. P7 is the post-mortem examination report with opinion and Forensic Science Laboratory report shown to him is Ex. P. 8. ( 16 ) EX. PL-COMPIAINT reads as hereunder;"we live on agriculture. One Karam bujji held panchayat because of his wife by name Muthamma died due to witch craft used by my father. In the panchayat Madivi Muthaiah and some elders have decided as they are having suspicion on my father for that panchayat we gave one ox towards penalty that people has cut the said ox, and eaten away by them, then onwards we are living peacefully. On 2. 3. 1994 we are all taken dinner and slept in our house. At about midnight Gaddala Sangaiah, karaka Doolaiah entered into my house, woke-up my father saying that "there is some work with you" and taken away to the outside. Then, I and my mother objected them to take my father. They said there is little work with my father and Doolaiah taken away my father. I also accompanied with them with suspicion upto Vippa Tree. There is moon time. At that tree Karam Bujji and Karam Ramaiah are present and karam Bujji abused my father in filthy language saying that "how many people you are going to kill" and caught hold of my father s hairs, Gaddala Seshaiah- caught hold of my father s hands, gaddala Ramaiah caught hold of my father s legs. Karam Bujji cut the throat of my father with the knife (which is used for a toddy tapping ). I used hues and cries. Karam Bujji cut the throat of my father with the knife (which is used for a toddy tapping ). I used hues and cries. They are also threatened me and I ran away from that place and reached to my house, and told to my mother. If I all went there they shall kill us also. Next day morning on 3. 3. 1994 I went there and witnessed the dead body of my father. I came to Police Station to report the matter to the police to take appropriate action on them," ( 17 ) AS the specific case of the prosecution is that all the accused are concerned with the commission of the offences with which they had been charged with, the learned Judge after recording certain findings, recorded an acquittal of all the charges with which they had been charged with. But however, convicted the Appellant- a2 only, under Section 364 IPC. Section 364 ipc dealing with kidnapping or abducting in order to murder reads as follows:"whoever kidnaps or abducts any person in order that such person may be murdered or may be so disposed of as tp be put in danger of being murdered, shall be punished with imprisonment for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. " ( 18 ) SUBMISSIONS at length were made by bom the Counsel relating to the fact that whether this offence is a substantive offence, independent offence, distinct offence and whether a separate charge need to be framed and whether prejudice is caused for non- framing of the separate charge in this regard. In Banwarilal Jhunjhunwala case (supra), thtapeat Court while dealing with the aspect of every distinct offence observed at paragraphs 13 and 14 as follows: section 233 Cr. P. C- reads: ,. "for very distinct offence of which any person is accused there shall be a separate charge, and every such charge shall be tried separately, except in the cases mentioned in sections 234, 235,236 and 239. "the expression every distinct offence must have a different content from the expressions every offence or each offence . A separate charge is required for every distinct offence and not necessarily for each separate offence. The question is, what is meant by every distinct offence? distinct means not identical . "the expression every distinct offence must have a different content from the expressions every offence or each offence . A separate charge is required for every distinct offence and not necessarily for each separate offence. The question is, what is meant by every distinct offence? distinct means not identical . It stresses characteristics that distinguish while the word separate would stress the two things not being the same . Two offences would be distinct if they be not in any way inter-related. If there be some inter-relation there would be no distinctness and it would depend on the circumstances of the case in which the offences were committed, whether there be separate charges for those offences or not. " ( 19 ) THE learned Counsel representing the Appellant-A2 would submit that though section 364 IPC deals with kidnapping or abducting in order to murder, this has nothing to do with Section 302 IPC as such and hence, unless a specific charge is framed, appellant-A2 cannot be convicted under section 364 IPC. ( 20 ) IN view of the fact that Section 364 ipc deals with kidnapping or abducting in order to murder and in the light of the tests laid down by the Apex Court, it cannot be said that it can be laid as broad proposition under no circumstances, if the facts otherwise warrant, conviction cannot be recorded at all, It is totally a different aspect whether prejudice had been caused in this regard or not In Sohan Lal alias Shohan Singh case (supra), the Apex Court held that"abetment is a substantive offence and failure to frame charge under Section 109 ipc in a bride burning case would cause prejudice to the accused-husband was charged only under Section 304-B and hence his conviction under Sections 300,109 IPC are liable to be set aside. " ( 21 ) A careful reading of the evidence of P. Ws. l to 3 would go to show that the specific case of the prosecution is that all these accused in fact had committed murder of the deceased on the fateful day. But the version was totally disbelieved. However, in view of the fact that A2 also participated just in taking the deceased away from the house on the fateful day, the learned Judge arrived at a conclusion that the ingredients under Section 364 IPC are satisfied. Both in Ex. But the version was totally disbelieved. However, in view of the fact that A2 also participated just in taking the deceased away from the house on the fateful day, the learned Judge arrived at a conclusion that the ingredients under Section 364 IPC are satisfied. Both in Ex. P1-complainant and also the evidence of P. W. I, when the specific factual foundation had been disbelieved, the prosecution cannot try to sustain conviction on a slightly different version, especially deviating the facts. In that view of the matter, whether the offence under section 364 IPC is a separate distinct offence or not, it may not be material for the reason that definitely serious prejudice is caused to the Appellant-A2 and apart from it, when the prosecution version was disbelieved in relation to the other accused similarly placed, it would be a futile exercise on the part of the prosecution to sustain the conviction as against the Appellant-A2 only. ( 22 ) VIEWED from any angle, the Actual foundation and the evidence availame on record definitely do not warrant conviction of Appellant-A2 under Section 364 IPC. Hence, the Accused-A2 is entitled for acquittal. ( 23 ) IN the result, the Appellant-A2 is hereby acquitted and the criminal appeal is allowed. Bail bonds of the Appellant accused No. 2 shall stand cancelled.