Balakrishnan, J. :- Seven accused persons were tried by the Court of Session, Kasaragod for various offences including the offence punishable under Section 302 read with Section 149 I.P.C. Except first accused, all others were acquitted of all charges. The 1st accused was found guilty of offence punishable under Section 304 Part II and was sentenced to undergo rigorous imprisonment for a period of 5 years. He was also directed to pay fine of Rs. 1000/- with a default sentence of rigorous imprisonment for one month. Crl. A. No. 439 of 1993 is an appeal preferred by the first accused challenging his conviction and sentence and Crl. A. No. 805 of 1993 is an appeal filed by the State challenging the acquittal of accused 2 to 7 and also praying for conviction of the first accused for the offence punishable under Section 302 read with Section 149 I.P.C.

2. We heard appellant's counsel and also the learned Public Prosecutor. The prosecution case is that on 14-4-90 deceased Appachan and 7 others had gone to the house of the appellant to enquire as to who had removed the D.Y.F.I. flag hoisted by them. Deceased Appachan and his colleagues are members of the Marxist party. Appellant a