R.S. Sarkaria, J.
1. Twenty-two persons, according to the FIR lodged by PW 14, wife of Mayappa, had assaulted and caused the death of two persons viz., Vyankanna and Muryappa. PW 14. The informant claimed to be an eyewitness of the incident. In the FIR, she stated that the assailants were armed with axes & sticks. After investigation the police found that there was no case worth prosecution against 8 out of the 22 persons denounced as culprits in the F.I.R and presented a challan against 14 only, out of the 22 named as the assailants in the F.I.R. The trial court convicted accused 1 to 4, who were real brothers, and acquitted the other 10 accused persons, including accused 5, who is also a brother of Accused 1 to 4. The State preferred an appeal against the acquittal of those ten accused, but before the High Court the appeal appears to have been pressed against accused 5, only. Accused 1 to 4 also filed an appeal against their conviction to the High Court. The HighCourt dismissed the appeal filed by Accused 1 to Accused 4, but accepted the appeal filed by the State against Accused 5 only and convicted him under Section 302 read with Section 34, Penal Code. Accused 5 has now come in appeal before us under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.
2. As already noted in this case, a very large number of persons were implicated in the F.I.R. Against eight of them, no case was disclosed by Police investigation. Out of the 14 prosecuted, ten were acquitted by the trial court. The Stale appeal against the acquittal of nine persons did not succeed in the High Court. There was thus every possibility of several innocent persons having been roped in along with the guilty. Against this background the approach of the Court should have been marked with more than ordinary caution.
3. Appellant (Accused 1) was at the material time an M.Sc. student at Kolhapur. At the trial he pleaded alibi but failed to prove it. Mr. Datar, counsel for the appellant, very fairly has not reagitated this defence, but he submits with great emphasis that the presence and participation of the appellant in the assault on the two deceased persons was not established beyond reasonable doubt. It appears to us that this contention must prevail.
4. In the complaint, as already noted, it was not mentioned that any of the assailants was armed with a spear. At the trial it is stated by the alleged eye witnesses, namely, PW 14, Layavva w/o Mayappa, PW 15, Muktabai w/o, Birappa, PW 16 Sommanna, PW 17 Tamanna and PW 18 Birappa that the appellant was armed with a spear with which he caused injuries to Murayappa deceased and Sommanna PW 16. But in their police statements recorded under Section 161 Cr. PC none of these witnesses stated that the appellant was armed with spear which he used against the victims. The attribution of a spear to the appellant was evidently an after-thought and a subsequent improvement. The medical evidence is not categoric on this point. If anything it indicates that the two incised wounds on Muryappa and the two incised wounds on Somanna, were caused with a cutting instrument, as distinguishing from a piercing weaponlike a spear. Ordinarily when a witness says that such and such person assaulted the victim with a spear, then it is to be understood that the spear was used to pierece or puncture the body of the victim. Such was not the case here. The incised wounds found on two of the victims were not puncturued or piercing wounds.
5. Furthermore, in the F.I.R., only an omnibus statement has been made that all the twenty-two persons, armed with axes and sticks, assaulted the two deceased person. No attempt was made at the trial to assaign a specific role to the appellant in the assault on Murayappa. It is thus evident that the story against the appellant was developed by the eye-witnesses at subsequent, stages and such improvements and changes as against the appellants, had to be discarded by way of judicial caution.
6. The reasons given by the trial court for giving the benefit of doubt to accused 5, in our opinion, cannot be said to be unsound. The High Court, therefore, was not right in converting the acquittal of the appellant into con- viction, ignoring the well settled principles of practice which govern appeals against acquittal. The appeal is allowed. The conviction of the appellant is set aside. He be set at liberty forthwith. If he is on bail his bail bonds are cancelled.