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Saturday, April 25, 2015

We find that there are five stab injuries at different parts of the body i.e. near right axilla, below the right axilla, over right hypochoncriam at mid clavicular line, over the border of right scapula and over mid spinal region at the level of 4th and 5th lumbar vertebra. The evidence on record shows that the deceased was assaulted as he was a witness in Velongini Raja’s murder case wherein the accused-appellant, A-1, was an accused. There are cases where this Court has converted offence from 302 IPC to 304 Part I IPC, regard being had to the genesis of occurrence or the nature of injuries. It is because one of the relevant factors to gather the intention is the nature of injury inflicted on the deceased. In the instant case, considering the nature of injuries and the previous animosity, we are of the considered opinion that it is not a fit case where the offence under Section 302 IPC should be converted to Section 304 Part I IPC.

                      CRIMINAL APPEAL NO. 2047 OF 2008

Vutukuru Lakshmaiah                     ...  Appellant
State of Andhra Pradesh                      ...   Respondent

                      CRIMINAL APPEAL NO. 2052 OF 2008
                      CRIMINAL APPEAL NO. 205O OF 2008

                               J U D G M E N T

Dipak Misra, J.

      The present appeals are directed against the judgment and order  dated
22.03.2007 passed by the High Court of Andhra  Pradesh  in  Criminal  Appeal
No. 517 of 2005, whereby it has confirmed the  judgment  of  conviction  and
order of sentence passed by the learned Additional Sessions  Judge,  Nellore
in Sessions Case No. 365 of 1998 whereunder  he  had  found  the  appellants
guilty of the offence under Sections 302 and 148 of the  Indian  Penal  Code
(IPC) and sentenced each of them to suffer rigorous  imprisonment  for  life
on the first score and imposed separate  sentence  under  Section  148   IPC
with the  default  clause  stipulating  that  all  the  sentences  shall  be
concurrent.  Be it stated,  the  High  Court  has  acquitted  three  of  the
convicted persons.
2.    Filtering the unnecessary details, the prosecution case  is  that  the
deceased, Patrangi Ramanaiah, was a supporter of  the  Telugu  Desam  Party,
while accused Vutukuru Lakshmaiah, A-1, was the Councilor for  Ward  No.  16
of Nellore Municipality and belonged to the  Congress  Party.  One  Patrangi
Velongini Raja of Telugu Desam Party was allegedly murdered by  accused,  A-
1, and his brother and in the said prosecution the deceased  and  PW-1  were
3.    On 14.05.1996  about  9.30  p.m.,  Pamula  Ramanaiah,  PW-1,  and  the
deceased were travelling on their  scooter  towards  Akuthota  Harijanawada,
and when they reached a  sweet  meat  shop,  Meriga  Yedukondalu,  A-4,  and
Utukuru Seenaiah, A-6 (since deceased) attacked them as a result  of  which,
PW1, who was driving the scooter lost control of the  scooter  and  both  of
them fell down. As the prosecution story proceeds, Vutukuru  Lakshmaiah,  A-
1,  Rayapu Srinivasulu, A-2, Rayapu Sivaiah, A-3, Meriga Ramaiah,  A-5,  and
Meriga Penchlaiah, A-7, stabbed the deceased  multiple  times  with  knives,
while A-4 and A-6 beat him with iron rods. A-2 then tried to stab  PW-1  but
missed.  Thereafter A-3 stabbed PW-1 with a knife on his left  arm,  but  he
managed to escape and hid in the PWD office situated nearby.
4.    As the prosecution case further unfurls, Pantrangi Venkateswarlu,  PW-
2, and Ragutu  Sreenivasulu,  PW-3,  who  were  returning  from  their  work
witnessed the incident and after the assailants left  the  scene  of  crime,
they took the deceased to the Government Head  Quarters  Hospital,  Nellore.
Being informed about the incident, the police immediately reached the  scene
of incident where they found injured PW-1 who had returned to the  scene  of
occurrence  and  took  him  to  the  hospital,  where  Md.  Kareemula,  Head
Constable, PW-20, recorded the statement  of  PW-1,  Ex.  P-1,  and  it  was
handed over to G. Srinivasa Rao, Sub-Inspector of Police, PW-21.   Based  on
the statement, Crime No. 57 of 1996 U/s. 147, 148, 324, 307 r/w 149 IPC  was
registered and the investigation commenced.  The deceased  was  subsequently
shifted to Apollo Hospital, Madras for better treatment.  Meanwhile  the  II
Additional Judicial First Class Magistrate,  Nellore,  PW-18,  recorded  the
dying declaration of the deceased at  the  General  Head  Quarter  Hospital,
which has been brought on record as Ex. P-13. On 15.05.1996, PW-21,  visited
the scene of offence, prepared the panchanama, Ex. P-7,  the  rough  sketch,
Ex. P-18, and recorded statements of PWs 1, 2, 3, 5, 6,  8,  12,  17.  After
the receipt of intimation of death of the deceased on 18.05.1996, there  was
alteration of the offence to Section  302  IPC  and  the  investigation  was
taken over by K. Veera Reddy, PW-22, the Inspector of  police,  who  visited
the Apollo hospital, Madras and held inquest  over  the  dead  body  of  the
deceased in presence of G. Pulla Reddy, PW-18, and  sent  a  requisition  to
Dr. C. Manohar, PW-19, Assistant Professor,  Forensic  Medicine  at  Kilbank
Medical College, Chennai for postmortem  examination  who  carried  out  the
autopsy over the dead body of the deceased on  18.05.1996  and  opined  vide
Ex.16, the postmortem report, that the cause of death was  due  to  multiple
stab injuries.  PW-22, the Investigating Officer, arrested A-2  to  A-7  and
A9 on 28.05.1996 and at the instance of the arrested  persons,  except  A-9,
the investigating agency recovered four knives and two  iron  rods.    After
completion of the investigation,  the  chargesheet  was  placed  before  the
competent court and eventually the matter was tried  by  learned  Additional
Sessions Judge.  The accused persons took the plea of false implication  and
the A-1, additionally took the plea of alibi.
5.     The  principal  witnesses  are,  Pamula  Ramanaiah,  PW-1,  Pantrangi
Venkateswarlu, PW-2,  Ragutu  Sreenivasulu,  PW-3,  II  Additional  Judicial
First Class Magistrate, Nellore, PW-18, and  Dr.  C.  Manohar,  PW-19.   The
defence in support of its plea, examined 7  witnesses  i.e.  DW-1  to  DW-7.
The learned trial Judge, after appreciating the entire evidence,  both  oral
and documentary, on record, especially the evidence of  PW-1  to  PW-3,  and
the dying declaration, Ex.P-13, convicted A-1 to A-5 and A-7 to A-9 for  the
offences punishable under Sections 148 and 302  IPC  for  causing  death  of
deceased  Patrangi  Ramanaiah,  convicted  A-2  to  A-4  for   the   offence
punishable under Section 324 IPC and A5 for the  offences  punishable  under
Sections 324 read with 149 IPC for causing injuries to PW-1.
6.    Being aggrieved by the judgment of the trial Court,  all  the  accused
persons preferred Criminal Appeal no. 517 of 2005 wherein  the  High  Court,
after re-appreciating the evidence in entirety, affirmed the conviction  and
sentence passed by the trial court in respect of the present appellants  and
partly allowed the appeal thereby acquitting A4, A8 and A9 giving  them  the
benefit of doubt.
7.    We have heard  Mr.  Nagendra  Rai,  learned  senior  counsel  for  the
appellants and Ms. June Chaudhary, learned senior counsel for the State.
8.    Criticizing the  judgment  of  conviction,  it  is  submitted  by  Mr.
Nagendra Rai, learned senior counsel for the appellants  that  the  evidence
adduced by the prosecution witnesses should have been discarded inasmuch  as
their testimony is replete with contradictions and  as  the  occurrence  had
taken place during the night about 9.30  p.m.  and  there  was  no  electric
supply and hence, it could not  have  been  possible  on  the  part  of  the
witnesses to see the accused-appellants by lighting  the  earthen  mud  lamp
with a match stick.  Learned counsel would  contend  that  they  are  chance
witnesses and their evidence really do not inspire confidence and, in  fact,
when cautiously scrutinized, they deserve to be totally  discarded.   It  is
urged by him  that  the  dying  declaration,  Ex.  P-13,  does  not  inspire
confidence inasmuch as the allegations  are  omnibus  in  character  and  no
specific overt acts have been attributed to any of these appellants.  It  is
contended by him that when the High Court has found that A-4,  A-8  and  A-9
have been falsely implicated, it would have been appropriate on the part  of
the High Court to hold that the present appellants  also  had  been  falsely
implicated in the case.  It is canvassed by him that  the  appellant  no.  1
was attending the Water Committee meeting on the date of occurrence and  the
same had been established by bringing  acceptable  evidence  on  record   by
citing witnesses and also by filing documents  Ex.  D-3  to  D-8  which  are
documents maintained by Nellore Municipality.  It is his further  submission
that learned trial Judge as well  as  the  High  Court  has  not  given  any
justifiable reason to disregard the evidence of DW-1 to DW-7.   It  is  also
urged by him that the appellants could not have been  convicted  in  aid  of
Section 149 IPC as the charge framed against them  was  simplicitor  Section
302 IPC; and even if Section 149 IPC can be resorted to, in the  absence  of
specific charge, the Court is required to see  the  circumstances,  what  is
the nature of offence committed.  Alternatively,  it  is  submitted  by  him
that even if the assault on the deceased is accepted, regard  being  had  to
the absence of intention and the nature of injury suffered by  the  deceased
and death having taken place after  three  days,  they  may  be  liable  for
conviction under Section 304 Part II IPC and not under Section 302 IPC.   To
buttress the said submission, he has drawn  inspiration  from  decisions  in
State of Orissa v. Dibakar Naik[1], Sunder Lal v. State of Rajasthan[2]  and
Marimuthu v. State of Tamil Nadu[3].
9.    Ms. June  Chaudhary,  learned  senior  counsel  appearing  for  State,
resisting the aforesaid arguments, contended that  there  is  no  reason  to
discard the dying declaration as there is no infirmity in the same.   It  is
further urged by her that the testimony of all the  witnesses  are  credible
and the contention that PW-2 and PW-3 are chance witnesses does not  deserve
any acceptance.  Learned senior counsel for the State would  further  submit
that though the charge has not been framed under Section  149  of  the  IPC,
there is no bar, regard being had to the evidence on record, to convict  the
accused-appellants with the aid of the said provision.  It is  canvassed  by
her that it is not a case for conversion of the offence, for it is  squarely
a case under Section 302 IPC and not under Section 304 Part I or Part II  of
the IPC.
10.   First, we shall advert to the issue of  non-framing  of  charge  under
Section 149 IPC.  While dealing with the said  issue,  in  Willie  (William)
Slaney v. State of M.P.[4] Vivian Bose, J., observed that  every  reasonable
presumption must be made in favour of the accused person; he must  be  given
the benefit of  every  reasonable  doubt.   The  same  broad  principles  of
justice and fair play must be brought to bear when determining a  matter  of
prejudice as in adjudging guilt.  The learned Judge proceeded to state  that
all said and done, the Court is required to see whether the  accused  had  a
fair trial, whether he knew what he was being tried for,  whether  the  main
facts sought to be established against him were explained to him fairly  and
whether he was given a full and fair chance to defend himself.   Thereafter,
Bose, J. proceeded to observe thus:-
      “In adjudging the question of prejudice the fact that the absence of a
      charge, or a substantial mistake in  it,  is  a  serious  lacuna  will
      naturally operate to the benefit of the accused and if  there  is  any
      reasonable  and  substantial  doubt  about  whether  he  was,  or  was
      reasonably likely to have been, misled in  the  circumstances  of  any
      particular case, he is as much entitled to the benefit of it  here  as
      elsewhere; but if, on  a  careful  consideration  of  all  the  facts,
      prejudice, or a reasonable and substantial likelihood of  it,  is  not
      disclosed the conviction must stand; also it will always  be  material
      to consider whether objection to the nature of the charge, or a  total
      want of one, was taken at an early stage.
           If it was not, and particularly where the accused is defended by
      counsel (Atta Mohammad v. King-Emperor[5]) it may in a given  case  be
      proper to conclude that the accused was satisfied and knew  just  what
      he was being tried for and knew what was being alleged against him and
      wanted no further particulars, provided it is  always  borne  in  mind
      that “no serious defect in the mode of conducting a criminal trial can
      be justified or cured by the consent of the advocate of  the  accused”
      (Abdul Rahman v. King-Emperor[6]).
           But these are matters of fact which  will  be  special  to  each
      different case and no conclusion on these questions of fact in any one
      case can ever be regarded as a precedent or a guide for  a  conclusion
      of fact in another, because the facts can never be alike  in  any  two
      cases “however” alike they may seem. There  is  no  such  thing  as  a
      judicial precedent on facts  though  counsel,  and  even  Judges,  are
      sometimes prone to argue and to act as if there were.”

      Chandrasekhara Aiyar, J., in his concurring opinion stated thus:-
      “A case of complete absence of a charge is  covered  by  Section  535,
      whereas an error or omission in a charge is dealt with by Section 537.
      The consequences seem to be slightly  different.  Where  there  is  no
      charge, it is for the court to determine whether there is any  failure
      of justice. But in the latter, where there is mere error  or  omission
      in the charge, the court is also bound to  have  regard  to  the  fact
      whether the objection could and should have been raised at an  earlier
      stage in the proceedings.”

      After so stating, the learned Judge opined that generally in cases  of
omission to frame a charge is not  per  se  fatal.    Eventually,  he  ruled
      “Sections 34, 114 and  149  of  the  Indian  Penal  Code  provide  for
      criminal liability viewed from  different  angles  as  regards  actual
      participants, accessories and men actuated by a  common  object  or  a
      common intention; and the charge is  a  rolled-up  one  involving  the
      direct liability and the constructive liability without specifying who
      are directly liable and who  are  sought  to  be  made  constructively
           In such a situation, the absence of a charge under one or  other
      of the various heads of criminal liability for the offence  cannot  be
      said  to  be  fatal  by  itself,  and  before  a  conviction  for  the
      substantive offence, without a charge can be set aside, prejudice will
      have to be made out. In most of the cases of this  kind,  evidence  is
      normally given from the outset as to who was primarily responsible for
      the act which brought about the offence and such evidence is of course

11.   After 1973 Code came into  existence,  two-Judge  Bench  in  Annareddy
Sambasiva Reddy v. State of A.P.[7], relying on  the  principles  enunciated
in Willie (William) Slaney (supra),  has  opined  that  the  legal  position
stated by the larger Bench would  hold  good  after  enactment  of  Code  of
Criminal Procedure, 1973 as well in the light of  Sections  215,  216,  218,
221 and 464 contained therein.  Proceeding further, the Court has ruled:-
      “Is non-mentioning  of  Section  149  in  Charge  4  and  Charge  5  a
      fundamental defect of an incurable illegality that may warrant setting
      aside the conviction and sentence of the appellants? We do  not  think
      so. Non-framing of a charge under Section 149 IPC, on the face of  the
      charges  framed  against  the  appellants  would  not  vitiate   their
      conviction; more so when the accused have failed to show any prejudice
      in this regard. The present  case  is  a  case  where  there  is  mere
      omission to mention Section 149 in  Charges  4  and  5  which  at  the
      highest may be considered as an irregularity and since the  appellants
      have failed to show any prejudice, their conviction  and  sentence  is
      not at all affected. Tenor of cross-examination of PW 1 and  PW  3  by
      the defence also rules out any prejudice to them.”

12.   Keeping in view the aforesaid exposition of law, we  are  required  to
see whether in the present case, the tests are satisfied.  On a  perusal  of
the evidence on record, we find the facts and  circumstances  clearly  bring
out that there was an unlawful assembly.  Each of  the  accused  person  was
very well aware that they are tried for being a part of the  assembly  which
was armed with weapons and hence, it was unlawful.  On a close  scrutiny  of
the evidence on record, it is difficult to hold that any prejudice has  been
caused to the accused appellants.  Thus,  the  said  submission  pales  into
13.   The next contention of the learned senior counsel for  the  appellants
is that the prosecution witnesses are chance  witnesses,  for  there  is  no
occasion on their part to be at  the  scene  of  crime.   Dealing  with  the
concept of chance witness, a two-Judge Bench in Rana Pratap  and  others  v.
State of Haryana[8], has observed that:-
      “We do not understand the expression “chance witnesses”.  Murders  are
      not committed with previous  notice  to  witnesses,  soliciting  their
      presence. If murder is committed in a dwelling house, the  inmates  of
      the house are natural witnesses. If murder is committed in a  brothel,
      prostitutes  and  paramours  are  natural  witnesses.  If  murder   is
      committed on  a  street,  only  passersby  will  be  witnesses.  Their
      evidence cannot be brushed aside  or  viewed  with  suspicion  on  the
      ground that they are mere “chance witnesses”. The  expression  “chance
      witnesses” is borrowed  from  countries  where  every  man’s  home  is
      considered his castle and every one must have an explanation  for  his
      presence elsewhere or in another man’s castle. It is a most unsuitable
      expression in a country whose people are less formal and more  casual.
      To discard the evidence of street hawkers and street  vendors  on  the
      ground  that  they  are  “chance  witnesses”,  even  where  murder  is
      committed in a street, is to abandon good sense and take too shallow a
      view of the evidence.”

14.   In Jarnail Singh v. State of Punjab[9], a two-Judge Bench opined  that
the evidence of  a  chance  witness  requires  a  very  cautious  and  close
scrutiny and as such a witness must adequately explain his presence  at  the
place of occurrence and if his presence at the  place  of  incident  remains
doubtful, then his version should be discarded.
15.   In the case at hand, the prosecution has been able  to  establish  the
presence of the witnesses at the place of occurrence.  The plea  that  there
was no electricity and, therefore, it would not have been  possible  on  the
part of the witnesses to see the accused-appellants by lighting the  earthen
mud  lamp  does  not  deserve   commendation,   for   the   witnesses   have
categorically deposed that they were able to see  the  accused  persons  and
the  participation  of  the  accused-appellants.   Thus,  despite  the  keen
scrutiny of their evidence, we are unable to put them in the category of so-
called ‘chance witnesses’ as has been nomenclatured by  the  learned  senior
counsel for the appellants.
16.   The next limb of submission of the  learned  senior  counsel  for  the
appellants  relates  to  acceptability  and   reliability   of   the   dying
declaration recorded vide Ex.  P-13.   The  criticism  is  advanced  on  the
foundation that it is absolutely vague.  It is urged by him that  the  dying
declaration being absolutely infirm, it cannot be placed reliance  upon  and
once the dying declaration is discarded, a serious dent is  created  in  the
prosecution story.  To appreciate the said  submission,  we  have  carefully
scrutinized the contents of the dying declaration  contained  in  Ex.  P-13,
which has been recorded by the Additional Judicial Magistrate, First  Class,
PW-18.  In his testimony,  he  has  categorically  stated  every  aspect  in
detail and nothing has been elicited in the cross-examination.  At the  time
of recording of the dying declaration,  as  the  material  would  show,  the
declarant was absolutely in a conscious state and there  is  an  endorsement
in that regard by the  treating  doctor.   The  submission  that  the  dying
declaration is eminently vague is neither correct nor is  it  based  on  any
material on record.  On the scanning of the dying declaration, we find  that
he has named  Vutukuru  Laxmaiah,  A-1,  Rayapu  Sreenivasalu,  A-2,  Rayapu
Subbaiah, A-3, Meriga Ramanaiah, A-5, Amburi Raja, A-8,  Rayapu  Ravi,  A-9,
and Rapayu Siddaiah.  Thus, in the absence  of  any  kind  of  infirmity  or
inherent contradiction or inconsistency or any facet  that  would  create  a
serious doubt on the dying declaration, we are not inclined to  discard  it.
It is well settled in law that  conviction  undisputedly  can  be  based  on
dying  declaration,  if  it  is  found  totally  reliable.   In  Mehiboobsab
Abbasabi Nadaf v. State of Karnataka[10], while  discarding  multiple  dying
declaration, the Court held thus:-
      “Conviction can indisputably be based on  a  dying  declaration.  But,
      before it can be acted upon, the  same  must  be  held  to  have  been
      rendered  voluntarily  and  truthfully.  Consistency  in   the   dying
      declaration  is  the  relevant  factor  for  placing   full   reliance
      thereupon. In this case, the deceased herself had taken  contradictory
      and  inconsistent  stand  in  different  dying   declarations.   They,
      therefore, should not be accepted on their  face  value.  Caution,  in
      this behalf, is required to be applied.”

      In Kashi Vishwanath v. State of Karnataka[11], a two-Judge  Bench  did
not place reliance on the  dying  declaration  as  there  were  three  dying
declarations and they showed certain glaring contradictions.
17.   At this juncture, it is  worthy  to  note  that  the  High  Court  has
acquitted A-4, A-8 and A-9 on the foundation that  they  have  been  falsely
implicated.  Learned senior counsel for the appellants  has  contended  that
when the appellate court had acquitted the said accused persons,  there  was
no warrant to sustain  the  conviction  of  other  accused  persons.   On  a
perusal of the judgment of appellate court, we find  that  the  judgment  of
acquittal has been reversed on the score that the names of A-8  and  A-9  do
not find mention in the evidence of PWs 1 to 3.  On similar basis,  A-4  has
been acquitted.   Suffice  to  mention  here  because  the  High  Court  has
acquitted A-4, A-8 and A-9, that would  not  be  a  ground  to  discard  the
otherwise reliable dying declaration, for the evidence in  entirety  vividly
show the involvement of the accused-appellants.
18.    The  next  plank  of  submission  of  the  learned  counsel  for  the
appellant, Vutukuru Lakshmaiah, appellant in Criminal  Appeal  No.  2047  of
2008, pertains to non-acceptance of plea of alibi.   As  is  manifest,  both
the Courts have elaborately dealt with it.  As  the  judgment  of  the  High
Court would reveal, a finding has been returned that there  is  no  evidence
to the effect what is  the  distance  between  municipal  office  where  the
Committee meeting was  held  and  the  place  where  the  offence  had  been
committed;  nothing  has  been  brought  on  record  to  show  that  it  was
impossible for one to reach the place of offence; that the  authenticity  of
the minutes book prepared  under  the  signatures  obtained  have  not  been
maintained in discharge of  public  function  because  the  Water  Committee
constituted is not a statutory  Committee.   That  apart,  the  law  clearly
stipulates how a plea of alibi is to be established.  In  this  context,  we
may profitably reproduce a few passages from Binay Kumar Singh V.  State  of
      “22. We must bear in mind that an alibi is not an  exception  (special
      or general) envisaged in the Indian Penal Code or any other law. It is
      only a rule of evidence recognised in Section 11 of the  Evidence  Act
      that facts which are inconsistent with the fact in issue are relevant.
      Illustration (a) given under the provision  is  worth  reproducing  in
      this context:

           “The question is whether A committed a crime at  Calcutta  on  a
        certain date; the fact that on  that  date,  A  was  at  Lahore  is

      23. The Latin word alibi means “elsewhere” and that word is  used  for
      convenience when an accused takes recourse to a defence line that when
      the occurrence took place he  was  so  far  away  from  the  place  of
      occurrence  that  it  is  extremely  improbable  that  he  would  have
      participated in the crime. It is a basic law that in a criminal  case,
      in which the accused is alleged to have inflicted physical  injury  to
      another person, the burden is on the prosecution  to  prove  that  the
      accused was present at the scene and has participated  in  the  crime.
      The burden would not be lessened by the mere fact that the accused has
      adopted the defence of alibi. The plea of the accused  in  such  cases
      need be considered only when the burden has  been  discharged  by  the
      prosecution satisfactorily.  But  once  the  prosecution  succeeds  in
      discharging the burden it is incumbent on the accused, who adopts  the
      plea of alibi, to prove it with absolute certainty so  as  to  exclude
      the possibility of his presence at the place of occurrence.  When  the
      presence  of  the  accused  at  the  scene  of  occurrence  has   been
      established  satisfactorily  by  the  prosecution   through   reliable
      evidence, normally the court would be slow  to  believe  any  counter-
      evidence to the effect that  he  was  elsewhere  when  the  occurrence
      happened. But if the evidence adduced by the  accused  is  of  such  a
      quality and of such a standard  that  the  court  may  entertain  some
      reasonable  doubt  regarding  his  presence  at  the  scene  when  the
      occurrence took place, the accused would, no doubt, be entitled to the
      benefit of that reasonable doubt. For that  purpose,  it  would  be  a
      sound proposition to be laid down that,  in  such  circumstances,  the
      burden on the accused is rather heavy.  It  follows,  therefore,  that
      strict proof is required for establishing the plea of alibi.
                                                         [Emphasis supplied]

      The said principle has been reiterated in Gurpreet Singh v.  State  of
Haryana[13], S.K. Sattar v. State of Maharashtra[14] and Jitender  Kumar  v.
State of Haryana[15].
19.   In the  instant  case,  the  prosecution  has  been  able  to  clearly
establish the presence of the accused-appellant A-1, appellant  in  Criminal
appeal No. 2047 of 2008, at the scene of occurrence.  The initial  onus  put
on the prosecution having been discharged, the burden shifts to the  accused
to establish the plea of alibi with  certainty.   As  is  evident  from  the
analysis made by the High Court that the  plea  of  alibi  of  the  accused-
appellant, A-1, could not be accepted as his presence has been  proven.   We
find the said opinion of the High Court is based on the material brought  on
record and hence, there is no reason to differ with the same.
20.   The last plank of submission of the learned  senior  counsel  for  the
appellants is that the appellants had no intention to commit the  murder  of
the deceased.  It is also submitted by him  that  when  death  has  occurred
three days after  the  incident,  it  is  demonstrable  that  there  was  no
intention on the part of the accused-appellants to kill him.  To  appreciate
the said submission, we have perused the injury report.  We find that  there
are five stab injuries at different parts  of  the  body  i.e.   near  right
axilla, below the right axilla, over right hypochoncriam at  mid  clavicular
line, over the border of right scapula and over mid  spinal  region  at  the
level of 4th and 5th lumbar vertebra.  The evidence  on  record  shows  that
the deceased was assaulted as he was a witness in  Velongini  Raja’s  murder
case wherein the accused-appellant, A-1, was an accused.   There  are  cases
where this Court has converted offence from 302  IPC  to  304  Part  I  IPC,
regard being had to the genesis of occurrence or  the  nature  of  injuries.
It is because one of the relevant factors to gather  the  intention  is  the
nature  of  injury  inflicted  on  the  deceased.   In  the  instant   case,
considering the nature of injuries and the previous  animosity,  we  are  of
the considered opinion that it is not a fit case  where  the  offence  under
Section 302 IPC should be converted to Section 304 Part I IPC.
21.   Consequently, we do not  perceive  any  merit  in  these  appeals  and
accordingly, the same stand dismissed.

                                                               [Dipak Misra]

                                                 [N.V. Ramana]
New Delhi
April 24, 2015
[1]  (2002) 5 SCC 323
[2]  (2007) 10 SCC 371
[3]  (2008) 3 SCC 205
[4]  AIR 1956 SC 116
[5]  AIR 1930 PC 57
[6]  AIR 1927 PC 44
[7]  (2009) 12 SCC 546
[8]  (1983) 3 SCC 327
[9]  (2009) 9 SCC 719
[10]  (2007) 13 SCC 112
[11]  (2013) 7 SCC 162
[12]  (1997) 1 SCC 283
[13]  (2002) 8 SCC 18
[14]  (2010) 8 SCC 430
[15]  (2012) 6 SCC 204

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