A person can be convicted of the substantive offense of murder under S. 302 of the Penal Code even if a co-accused is acquitted, if the prosecution evidence clearly establishes the guilt of the convicted person.

BEHERA,J.

( 1 ) THE appellant Kana and his son Maran, the other appellant have been convicted under S. 302 read with S. 34 of the Penal Code (for short, 'the Code') for having committed the murder of Dasarath Majhi (to be referred to hereinafter as 'the deceased') in furtherance of their common intention on Nov. 2, 1979, at village Banjipani in the district of Kalahandi. The case of the prosecution was that there had been a land dispute between the appellants on the one hand and the deceased on the other. Of this, there was no paucity of evidence and it had been admitted by the appellants. It is not disputed at the Bar that the deceased had died a homicidal death and that the trunk and the head portions over which autopsy had been conducted by the doctor (P. W. 2) were of the deceased. The prosecution sought to establish its case mainly on the evidence of the son of the deceased (P. W. 8), the sole witness to the occurrence and his statements made to his brother (P. W. 9), his mother (P. W. 10) and two co-villagers (P. Ws. 11 and 12) immediately after the occurrence naming the appellant Maran Majhi as the person who had assaulted his father by means of a Tabal by dealing a blow on his neck coupled with the medical evidence. The prosecution further sought to establish that on the day following the day of occurrence, the appellant Kana, who, according to P. W. 8, had instigated the other appellant on the spot to kill the deceased, produced the cut head of the deceased with the killing instrument (Tapal)tied to the hairs. There was, in addition, the evidence that a piece of cloth (M. O. VI) had been seized from the appellant Kana which on chemical and serological test, contained human blood. No article belonging to the appellant maran contained human blood, as found on chemical and serological test.

( 2 ) ON an examination of the evidence of the fifteen witnesses adduced from the side of the prosecution, the trial Court held that the charge had been brought home to both the appellants and each of them sentenced to undergo imprisonment for life.

( 3 ) MR. Suman Kumar Dey, appearing on behalf of the appellants, has taken us through the relevant evidence and has contended that the charge had not been established against any of the appellants.

( 4 ) COMING to the case against the appellant Kana Majhi, we notice that in that first information report lodged by P. W. 8, no allegation had been made about any instigation by this appellant about which P. W. 8 had testified in the Court. That apart, P. Ws. 9 to 12 had been informed about the occurrence by P. W. 8 immediately after it. All of them had deposed that P. W. 8 had told them that the appellant Maran had hit the neck of the deceased by means of a Tabal. They had not stated a word that this witness had informed them about any instigation on the part of the appellant Kana.

( 5 ) AS would appear from the evidence of P. Ws. 1 and 5, the latter being a Sub-Inspector of Police, the cut head of the deceased with the Tabal tied to the hairs had been found by them at the Nawapara Police Station while the appellant Kana was sitting nearby and it might suggest that this appellant had produced the cut head. Strangely, however, no police officer, who might have been in charge of the police station and the Station Diary at the time when this appellant went to the police station with the cut head, had been examined in this case. No one had spoken about the actual production of the cut head by this appellant. Even assuming, however, that this appellant had produced the cut head at the police station with the Tabal (M. O. I.) tied to the hairs of the head, in the absence of any other evidence pointing to his guilt, this could not substantiate the charge against him. It could be that in order to save his son from the charge of murder, this appellant had gone to the police station and had voluntarily produced the cut head.

( 6 ) FOR the foregoing reasons, we must hold that the charge against th