S. Ravindra Bhat, J.

1. This judgment will dispose of three appeals against the judgment and order dated 21-3- 1998 and the order on sentence dated 24-3-1998, holding the appellants guilty - as charged, for committing the offences punishable under Sections 302/34 IPC, and sentencing them to undergo life imprisonment and also pay fine. Two of the original six accused, i.e. Jayanti and Brahmpal, were acquitted. The others, i.e. Prem Kumar, Ashok, Manoj and Kamal, have appealed to the court. They are hereafter referred to by their names.

2. The prosecution case was that Tejpal (hereafter referred to variously by his name, or as “the deceased”), and PW-6 (Pradeep Kumar) went to the house of Prem Kumar, to dine with him, on 28-09-1991. Prem Kumar served them liquor. PW-6 had earlier worked with Prem Kumar for about 5-6 days; he was carrying on a security service business from his residence. He stopped working for him, and worked with a property broker, in Ghaziabad. Tej Pal too used to formerly work with Prem Kumar; he had left that employment, and had started his own security service agency, near Pawan Cinema, in Ghaziabad. It was alleged that Prem Kumar showed his guests - Tejpal and PW-6 a letter written to his daughter (which apparently contained some abusive, or objectionable content) and alleged that they or either of them had written the letter. Both PW-6 and Tejpal denied this, and volunteered to give their specimen handwriting samples, for comparison with the handwriting on the letter. Thereupon, alleged PW-6, that the accused fell upon them, and rained hockey blows. PW-6 claims to have fallen down, and having been sat upon by Manoj, who attempted to throttle him; the witness lost consciousness. He also stated that Tejpal was similarly beaten, with hockey sticks, by Ashok, Manoj and Kamal. He fell, and Prem Kumar held him, upon which Manoj and Kamal throttled him with a dori (string). PW- 6 lost consciousness, and regained it in the hospital, where his statement was recorded by the police, under Section 161.

3. The police received information about the incident, at 11:25 PM that night, through wireless; they rushed to the spot, where they found the dead body (of Tejpal). After seeing the body, and securing the premises, the police went to the SDN hospital, where PW-6 had been admitted. His MLC was collected - it was later exhibited as Ex. PW-4/A. The dead body of Tejpal was sent for postmortem, its report was collected, along with other material objects and evidence, which were seized during the investigation. The six accused were arrested, and after investigation, charged by the Trial Court, for the offences mentioned earlier; they stood trial, after claiming innocence. Two of the accused were acquitted; the Appellants were convicted for committing the offences they were charged with.

4. Counsel for the Appellants urged that the Trial Court could not have convicted them, in view of the inherent contradiction in the prosecution story. Having discounted the involvement of the other two accused, particularly Jayanti, whose role as an active participant in the entire episode was disbelieved, the impugned judgment could not have, on the basis of the same evidence, relying on PW-6's testimony, convicted the others. It was urged that besides this, the prosecution had pleaded a common role and intention of Brahm Prakash, which was completely disbelieved after the trail; that accused was acquitted. In the circumstances, the court could not have, on the basis of the same evidence - which did not distinguish the role played by the accused, proceed to convict the others. The reasons which impelled the Trial Court to acquit one ought to have led it to acquit the others.

5. It was next urged by learned counsel for the Appellants that PW-6's testimony could not be relied on, because he deposed having been served with liquor; the Trial Court had observed that the host (Prem Kumar) had consumed very little, whereas Tejpal and PW-6 had been ser