1. In this judgment we are dealing with the case of the 2nd appellant Nennur Sami Reddi who has been convicted of abetting the murder by his brother, 1st appellant, of the deceased Cheni Reddi.
2. The case against this appellant is dealt with in paragraph 17 of the judgment of the Sessions Judge, who has convicted him of abetment, both by conspiracy and aiding (clauses 2 and 3 of Section 107 of the Indian Penal Code). A knowledge on the part of the appellant that his brother intended to commit the murder is, of course, essential to both: and after a careful consideration of the evidence, we doubt if this can be said to be established. The relationship of the two accused, the present appellant's own grievance against Rayalcheruvu Venkat Reddi and the fact that he (appellant) was sitting within a few yards of the spot where the murder was committed undoubtedly rouse suspicion of his complicity: but no weapon was found on him, and no overt act is alleged tending even remotely to facilitate the commission of the crime. Much has been made of the words attributed to him by P.W. No. 8 ('this is not the man, this is a different man')) as indicating knowledge of an intention to murder some one other than the individual found lying on the ground. But if the circumstances are considered it appears extremely doubtful if any such significance can be attached to them, It is clear from the prevention evidence that the first arrivals on the scene recognised the murderer as 1st accused and guessed the victim to be Rayalcheruvu Venkat Reddi from the enmity known to exist between them. While they were saying so, 2nd accused bent down, pulled away the deceased's cloth so as to see his face, and said 'This is not the man (i.e., Rayalcheruvu Venkat Reddi), this is a different man.' When a light was brought it was found that he was right and that it was not Rayalcheruvu Venkat Reddi, but one Cheni Reddi who closely resembled him in appearance.
3. In such circumstances it if difficult to say that either 2nd accused's anxiety to see who the fallen man was, or his remark after doing so indicates any guilty knowledge.
4. We do not think the facts in evidence are sufficient to justify the inference that 2nd accused must have known of his brother's intention to murder. We, therefore, do not think it necessary to express any opinion on the point argued before us, namely, whether if he had such knowledge and did not communicate it to the authorities as he was bound by law to do under Section 44 of the Code of Criminal Procedure, he could be convicted of intentionally aiding under Section 108 of the Indian Penal Code as the Sessions Judge has assumed, or only of offence under Section 118. The conviction cannot stand.
5. We set aside the conviction and sentence and direct the release of the 2nd accused.