( 1 ) THIS is an application under Sec. 439 (2) of the Criminal procedure Code for cancellation of bail granted to the applicant by order dated 12- 12-1997. The circumstance in which this application has been moved may be noticed in brief. The respondent is accused of having committed offence under Sec. 302 read with Sec. 34 and Sec. 114 as well as under Sec. 120b of the Indian Penal Code being a party to criminal conspiracy to commit murder of one Ranjitsinh Parmar also known as Ranjitsinh Jam along with other accused persons which included respondents father Jaswantlal Manilal Sheth in pursuance of which said Ranjitsinh was murdered. As per the F. I. R. , some dispute existed between accused Jaswantlal m. Sheth and his son Deepak on one side and deceased Ranjitsinh Jam on the other in respect of a land situated near M. P. Shah Arts and Science College, Surendranagar and suit is pending in Civil Court. The complainant a cousin of said Ranjitsinh parmar received a telephonic call at about 6-00 or 6-30 p. m. on 6-11-1997 for ranjitsinh. On enquiry it was revealed that Jashubhai was calling and it was stated that he and his son Deepak were sitting at their bungalow and want to have discussion with Ranjit Jam in respect of land. On getting this message, deceased went to the house of Jashubhai. When the said deceased did not return for sometime, the complainant went to the house of the accused Jashubhai after about one hour. At that time, he found that accused-respondent, along with three persons named and three persons unnamed was sitting in the Varandah with the deceased. Seeing this the complainant returned. When deceased did not return upto 10-30 p. m. , the complainant again went to the residence of Jashubhai where he found Ranjitsinh lying in pool of blood in the compound of house of Jashubhai. Jashubhai Manibhai, deepakbhai Jashubhai Sheth and Dudhrajwala, a person called "gadia Gamno Jat" and two to three other persons were described as accused in the F. I. R. During the course of investigation one Siddiq Khan working as watchman at the residence of jashubhai, Manharsingh Hemubha and Harbala, both also in the employment of jashubhai, were examined. Ayubkhan @ Raju, S/o. Alamkhan, referable to "jat of gadia village" in the F. I. R. , and Iqbal Hussein S/o. Allarakha were arrested and their statements were also recorded, which were self-incriminating as actually responsible for killing as well as implicating, other accused persons including Jashubhai and deepak as involved in criminal conspiracy to kill Ranjit. On 1/2-12-1997 application under Sec. 438 was filed on behalf of Jaswantlal and Deepak. In the said application Deepak Jaswant Sheth pleaded his alibi from the scene of occurrence. His presence in Bombay as indoor patient at a nursing home from 6-11-1997 to 9-11-1997 was stated. A certificate from the doctor of the said nursing home was also presented to the Court. The application was decided on 12-12-1997. Application on behalf of Jashwantbhai M. Sheth (Jashubhai) was rejected by holding that prima facie a case under Sec. 302, may be read with Sec. 114 or Sec. 34 is made out against petitioner No. 1. About accusation under Sec. 120b the Court said "sec. 120b of the Indian Penal code which may not be considered at this stage but the case has been made out against him for murder". Application on behalf of Deepak was allowed by holding the plea of alibi was plausible and case under Sec. 302 being evenly passed, benefit must go to accused. Regarding the case of criminal conspiracy under Sec. 120b, the Court observed :"the allegation of conspiracy against him appears to be a conspiracy on the part of the complainant and the persons guiding him. "about the plea of alibi pleaded on behalf of respondent-accused Deepak, the court observed that first witness named, Manharsinh Hemubha being of the community of the deceased creates a shadow of doubt on his reliability and Saddiq badarkhan, another witness was also pl