(1) TWENTY-TWO persons, according to the FIR lodged by Public Witness 14, wife of Mayappa, bad assaulted and caused the death of two persons viz., Vyankanna and Murayappa Public Witness 14. The informant claimed to be an eyewitness of the incident. In the FIR, she stated that the assailants were armed with axes and sticks. After investigation the police found that there was no case worth prosecution against 8 out of the 22 persons denounced as culprits in the FIR and presented a challan against 14 only, out of the 22 named as the assailants in the FIR. The trial court convicted accused 1 to 4, who were real brothers, and acquitted the other 10 accused persons, includ- ing accused 5, who is also a brother of accused 1 to 4. The State preferred an appeal against the acquittal of those ten accused, but before the High Court the appeal appears to have been pressed against accused 5, only. Accused 1 to 4 also filed an appeal against their conviction to the High court. The High court dismissed the appeal filed by accused 1 to accused 4, but accepted the appeal filed by the State against accused 5 only and convicted him under S. 302 read with S. 34, Penal Code. Accused 5 has now come in appeal before us under the Supreme court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.

(2) AS already noted in this case, a very large number of persons were implicated in the FIR. Against eight of them, no case was disclosed by police investigation. Out of the 14 prosecuted, ten were acquitted by the trial court. The State appeal against the acquittal of nine persons did not succeed in the High court. There was thus every possibility of several innocent persons having been roped in along with the guilty. Against this background the approach of the court should have been marked with more than ordinary caution. Appellant (accused 1) was at the material time an M. Sc. student at Kolhapur. At the trial he pleaded alibi but failed to prove it. Mr. Dutar, counsel for the appellant, very fairly has not reagitated this defence, but he submits with great emphasis that the presence and participation of the appel- lant in the assault on the two deceased persons was not established beyond reasonable doubt. It appears to us that this contention must prevail.

(3) IN the complaint, as already noted, it was not mentioned that any of the assailants was armed with a spear. At the trial it is stated by the alleged eyewitnesses, namely, Public Witness 14 Layavva w/o Mayappa, Public Witness 15 Muktabai w/o Birappa, Public Witness 16 Sommanna, Public Witness 17 Tamanna and Public Witness 18 Birappa that the appellant was armed with spear with which he caused injuries to Murayappa deceased and Sommanna Public Witness 16. But in their police statements recorded under S. 161, Criminal Procedure Code none of these witnesses stated that the appellant was armed with spear which he used against the victims. The attribution of a spear to the appellant wag evidently an after-thought and a subsequ- ent improvement. The medical evidence is not categoric on this point. If anything it indicates that the two incised wounds on Murayappa and the two incised wounds on Sommanna, were caused with a cutting instrument, as distinguished from a piercing weapon like a spear. Ordinarily when a witness says that such and such person assaulted the victim with a spear, then it is to be understood that the spear was used to pierce or puncture the body of the victim. Such was not the case here. The incised wounds found on two of the victims were not punctured or piercing wounds.

(4) FURTHERMORE, in the FIR, only an omnibus statement has been made that all the twenty-two persons, armed with axes and sticks, assaulted the two deceased persons. No attempt was made at the trial to assign a specific role to the appellant in the assault on Murayappa. It is thus evident that the story against the appellant was developed by the eyewitnesses at subsequent stages and