( 1 ) AN incident of considerable seriousness took place at a village by name Mallahalli in Nanjangud Taluk on 24-3-1986 at about 4 p. m. in the afternoon. It is admitted that there were two factions in the village, the accused belonging to one of them and the deceased, injured and witnesses belonging to the other one. We do not need to go into the history of the dispute which had something to do with a piece of land known as 'halepura garden'. We only refer to this in passing because the prosecution story is slightly different in so far as it is contended that on the morning of that day an altercation took place near the water tank between PW-1 Malligamma and the son of A-3 Jayaraj. In the course of that altercation, Jayaraj is alleged to have kicked PW-1 and in order to avoid a flare up some of the other ladies intervened and took her to her house. Sometime later in the day, her husband who is the deceased returned from the Court and as is to be expected, she not only narrated the incident but obviously made a big issue of it. It is clear from the reaction of the husband who immediately left the house and went in the direction of his brother's house to meet some other persons also, that he was agitated and that he was going to have it out with whoever was responsible for the insult and assault to his wife. We refer to this aspect of the matter because the prosecution not only highlighted it but has over played it; but in our considered view it is of considerable significance as we shall demonstrate lateron. According to the prosecution version, very shortly thereafter a commotion ensued and the deceased was seen running towards his residence and the accused who are supposed to have been armed finally assaulted him and the PWs allege that apart from a chopper which A-1 used, that the remaining persons used sticks and some of them even used stones in the assault. The nephew of the deceased by name Shankar tried to intervene and he also sustained some injuries though not of any consequence. PW-1 states that she naturally went to the rescue of her husband and that in order to avoid the assault she held her hand up and that she sustained some injuries. These are extremely trivial. The matter was reported to the nearest police station which is about 7 kms. away after about 2 hours and the police came to the scene after a considerable lapse of time. Their version is that the deceased and the injured Shankar as also PW-1 Malligamma were all seated there and were crying. They were finally taken to the closest hospital at Nanjangud where after initial treatment, the medical advise was that they should be taken to the K. R. Hospital at Mysore which was done. The deceased had sustained a number of injuries for which he was admitted to the hospital and his condition deteriorated as a result of which he died on the next day i. e. , 25-3-1986. The police arrested the accused and it is their contention that the chopper and the clubs were recovered pursuant to the statements made by some of the accused and on completion of the investigation as many as 17 accused were charge-sheeted. At the conclusion of the trial, A-1 to 6 were convicted on a host of charges essentially relating to unlawful assembly, rioting, causing hurt, murder and the like, whereas the other 11 accused were acquitted. That order has become final because the State has not challenged the acquittal.

( 2 ) LEARNED counsel representing the appellants sought to capitalise on this aspect of the matter because one of the strongest arguments canvassed by him was that whereas as many as 17 persons were directly involved and implicated by the witnesses, that a scrutiny of the evidence indicated that there was virtually no case against 11 of them and he submitted that in not having filed an appeal the State has virtually conceded the position that they were falsely implicated. Starting from this premise, learned counsel submitted before us that this ground is sufficient to totally di

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