( 1 ) AT the very outset, let it be mentioned that on account of dissenting and divergent views expressed by two learned Judges of this Court in an acquittal appeal, under section 378 of the Code of Criminal Procedure, 1973 (Cr. P. C.), the learned Chief Justice, has referred this appeal, pursuant to the exercise of the provisions of section 392 of the Cr. P. C. and that is how, this Single Bench is constituted to call upon to decide, determine and adjudicate upon as to whether it is a case of acquittal or conviction or for any other order or direction, as mandated by section 392 of the Cr. P. C. ? Before the provisions of section 392 of the Cr. P. C. are looked into, evaluated and examined, it would be appropriate, at the first stage, to highlight, the factual projection requiring consideration for legal fate of this acquittal appeal.

( 2 ) THE gist of trial against the three accused persons who are appellant in this appeal is an unfortunate event which occurred, at about, 4. 45 p. m. , on 19th July, 1988, near Patel Restaurant situated on a road leading from Rajkamal hotel to Amreli Tower road in a market in the city of Amreli. The incident culminated into the homidical death of one Chakku @ Shekhar Ravishankar Shukla, a married person with a child.

( 3 ) THIS acquittal appeal, at the instance of State, is against the acquittal of the respondents, original accused Nos. 1 to 3, who are hereinafter referred, as such, as arraigned before the Trial Court, for the sake of convenience and brevity. They came to be tried in Sessions Case No. 70/88, upon the main charge, as at, Ex. 5, under section 302 read with sectins 109 and 114 of the Indian Penal Code. Accused No. 1 (A-1) is the father of accused No. 2 (A-2 ). A-3 has been the friend of A-2. The common phenomenon in this case is that all the accused and, also, the deceased were known by their alias-names.

( 4 ) UPON a complaint lodged by the prosecution witness, one Navnit Ratilal, offence came to be registered with C. R. No. 72/88, by the Amreli City Police, and upon investigation, the chargesheet (chalans) followed against all the accused persons in the court of learned Chief Judicial Magistrate, Amreli, on 21. 7. 88 and then came to be committed to the Sessions Court, Amreli, being Sessions Triable Case. It came to be registered, as Sessions Case No. 70/88. The learned Sessions Judge framed charges, on 11. 10. 90 against all the three accused persons. A-1, Raghu was charged under section 302 read with section 109 and 114 of the IP Code, whereas, A-2, Ghana, son of A-1, was charged under section 302 and also under section 302 read with section 109 and 114 and in alternative, also, section 34, as well as section 323, whereas, A-3, Sanjay, was charged under section 302 read with section 109 and 114 and alternatively under section 302 read with section 34 of the IP Code. The accused persons denied the charges against them and claimed to be tried. Hence a full-fledged session trial came to be conducted in the Sessions Court, Amreli.

( 5 ) PROSECUTORIAL PATHOLOGICAL PROGNOSIS: The profile of the prosecution case has been that the commission of murder occurred in the evening at around 4. 45 p. m. , on 19. 7. 88, near Patel Restaurant in the city of Amreli. The respondents who are, original accused persons, alleged to have formed common intention with deadly, weapons of causing death of one Chakku @ Shekhar Ravishankar Shukla. Thus, the prosecution alleged that all the accused persons entertained a common intention to kill deceased Chakku and pursuant to the common intention, when deceased Chakku @ Shekhar, who was running a pan-shop in chorapa-Area in Amreli Town Market, which is the venue of offence, accompanied by his friend Navnit Ratilal, prosecution witness No. 1, complainant, started from the pan-shop for the purpose of taking snacks and in course of that when they reached near Patel Restaurant after passing the Tower Area, which is situated on the station road,