( 1 ) A-1 to A-4 in S. C. No. 86/98 on the file of V Additional Sessions Judge, Visakhapatnam, aggrieved by the Judgment dated 9-4-1999 had preferred the present Criminal Appeal. The charge sheet was filed as against A-1 to A-4 in Cr. No. 17/97 of Hukumpeta Police Station (Agency Area) for the offences under Sections, 302, 427 and 323 r/w. Section 34 IPC. ( 2 ) THE case of the prosecution is that all the accused are residents of Mattam village of Hukumpeta Mandal and are agriculturists and also they are closely related. A-2 is the son of A-1. A-3 and A-4 are brothers. Mattam Lakshmi is the wife, Mattam Suryakantham is the daughter, Mattam Ramu Naidu is the brother of the deceased Mattam Bodam Naidu and they are said to be the eye-witnesses to the occurrence. It is stated that two more witnesses, Mattam Bonju Naidu and Mattam matslingam also witnesses the incident after some time. Mattam Dali Naidu is the brother of the deceased who came from Vizag on knowing about the incident. Mattam Subhadramma, Mattam Matchamma and Mattam Eswaramma were said to have known about the occurrence in the village. On 19-6-1997 at about 8. 30 P. M. in sequel to the previous enmity, the deceased aiming to Chiranjeevi Naidu (A-1) uttered that he (A-1) beat him (deceased) with a bamboo stick about two months back unnecessarily on which A-1 and A-2 grew wild and beat the deceased on his head with a forest stick and A-2 also removed the tiles of the house of the deceased and when the wife and daughter (Laxmi and Suryakantham) interfered to obstruct the accused, A-3 and A-4 also joined with A-1 and A-2 and beat the deceased severely with sticks on the head of the deceased causing bleeding injuries. A-3 beat the wife of the deceased on her head and back and while shifting the injured to the Government Hospital, Hukumpeta, the deceased succumbed to the injuries on the way near Mattam bus stop. On the strength of the report given by PW-1, the inured wife of the deceased, Head Constable HC. 231 registered a case and took up the investigation and the later part of the investigation was done by the Inspector of Police who arrested all the accused on 22-6-1997. On the strength of the report given by PW-1, the inured wife of the deceased, Head Constable HC. 231 registered a case and took up the investigation and the later part of the investigation was done by the Inspector of Police who arrested all the accused on 22-6-1997. The dead body was sent to post mortem examination and the Doctor who conducted autopsy opined that the deceased died due to the failure of the respiratory and circulatory systems due to injury to the brain due to fracture of skull on account of head injury. After laying the charge sheet the Mandal Executive Magistrate, Hukumpeta committed the accused to the Court of Session and the Court of Session in turn made over the same to V Additional Sessions Judge, Visakhapatnam who tried the case, recorded the evidence of PW-1 to PW-12 and DW-1, marked Exs. P-1 to P-14 and M. Os. 1 to 8 ultimately came to the conclusion that A-1, A-3 and A-4 are guilty for an offence punishable under Section 304 Part I IPC instead of under Section 302 IPC. A-2 was found guilty for an offence under Section 426 IPC. A-2 was found guilty for an offence under Section 426 IPC instead of under Section 427 IPC and as far as charge No. 3 is concerned, no separate finding was given in relation to A-1, A-3 and A-4 for the offence under Section 323 IPC r/w. Section 34 IPC. The learned Judge also came to the conclusion that the charge of common intention under Section 34 IPC had not been made out by the prosecution and accordingly the accused had been sentenced. Hence the present Criminal Appeal. ( 3 ) SRI Praveen Kumar, the learned Counsel representing the appellant would submit that the medial evidence shows that Injury Nos. 13 to 19 are fatal in nature and the evidence available on record is not clear as to who had caused which injury which might have resulted in the death of the deceased. The learned Counsel also would further contend that the learned Judge recorded a finding that the charge under common intention under Section 34 IPC had not been established by the prosecution. The Counsel also would contend that A-2 was given benefit of doubt relating to the main charge but he was convicted under Section 426 IPC. The learned Counsel also would further contend that the learned Judge recorded a finding that the charge under common intention under Section 34 IPC had not been established by the prosecution. The Counsel also would contend that A-2 was given benefit of doubt relating to the main charge but he was convicted under Section 426 IPC. When that being so, the overt acts attributed to the specific accused may have to be dealt with separately and inasmuch as the other injuries had been spoken to by PW-10 it is highly doubtful which accused had caused which injury and hence the other accused also are entitled to benefit of doubt. The learned Counsel also pointed out to certain discrepancies in the evidence of the witnesses and also the evidence of DW-1 and would submit that the evidence of DW-1 is clear and categorical and hence the presence of the accused at the spot on the fateful day itself is highly doubtful and hence the appellants are entitled for acquittal. ( 4 ) PER contra, the learned Additional Public Prosecutor Mr. Mohd. Osman Shaheed would contend that there is ample evidence to prove under what circumstances on the fateful day the incident happened. The evidence is so natural and convincing and there cannot be any room or doubt about the commission of the offence by the accused. The learned Additional Public Prosecutor also would contend that no doubt benefit of doubt was given so far as it relates to A-2 in relation to the other charges and conviction was recorded only under Section 426 IPC, but that by itself will not enure to the benefit of the other accused. Hence the findings are to be confirmed. Heard both the Counsel. ( 5 ) P. W. 10 who had issued the wound certificate Ex. P-9 and the post mortem certificate Ex. P-10 deposed that he had examined PW-1 and found the following injuries: 1. Contusion of 3 x 1 cm. on the left parietal region of scalp, 5 cms. above the left ear on the left side of head. 2. An abrasion of 3 x 2 cm. on top of left shoulder. 3. An abrasion of 4 x 4 cm. on left back chest on left scapular region. ( 6 ) PW-10 deposed that these injuries are simple in nature which can be caused by blunt object like sticks. Ex. 2. An abrasion of 3 x 2 cm. on top of left shoulder. 3. An abrasion of 4 x 4 cm. on left back chest on left scapular region. ( 6 ) PW-10 deposed that these injuries are simple in nature which can be caused by blunt object like sticks. Ex. P-9 is the wound certificate issued by him. This witness also examined the deceased and conducted post mortem examination and found the following injuries: 1. Bone deep laceration of 5 x cm. present on right parietal region of head, 12 cms. above the right ear and 12 cm. from the outer 1/3rd of right eye brow on right side of head; 2. Bone deep laceration of 5 x cm. present on center of top of head, 17 cm. above the right ear and 16 cm. from left ear and it is 14 cm. from bridge of nose. 3. Laceration of 3 x x cms. on left back of head, 8 cm. behind the left ear on left occipital region of head; 4. Contusion of 3 x 2 cm. present on left frontal region of head 2 cm. above the outer 1/3rd of left eye brow on let forehead region; 5. Contusion of 16 x 18 cm. present on left fronto-tempore-parietal region of head; 6. Skin deep laceration of 6 x cm. on left bony cheek on the left side of the face; 7. An abrasion of 3 x 3 cm. on right back chest on the right scapular; 8. Muscle deep laceration of 4 x 1 cm. present on the top of left shoulder. 9. Multiple small abrasions present in an area of 10 x 6 cm. on back of chest between two scapulr; 10. An abrasion of 6 x 3 cm. on right gueteal region 11. Skin deep laceration of 3 x cm. on back of distal phalangeal region of right little finger of right hand; 12. Bruising of 18 x 20 cm. size of all the underlying tissues of left fronto tempero parietal region of scalp; 13. Fissured fracture of 14 cm. size present on frontal bone of skull extending between 2 frontal eminences of vault of skull; 14. Depressed fracture of 5 x 3 cm. present on left parietal bone of vault of skull; 15. Fissured fracture of 4 cm. long present on right temporal bone of vault of skull further extending into base; 16. Fissured fracture of 14 cm. size present on frontal bone of skull extending between 2 frontal eminences of vault of skull; 14. Depressed fracture of 5 x 3 cm. present on left parietal bone of vault of skull; 15. Fissured fracture of 4 cm. long present on right temporal bone of vault of skull further extending into base; 16. Extra dural hemorrhage of 10 x 6 x 2 cm. size present on left tempero parietal region of brain of about 100 gm. In weight. 17. Diffused subdural hemorrhage and subarachnoid hemorrhage present all over the brain; 18. Fissured fracture of 10 cm. length present on left front and middle base of skull; 19. Fissured fracture of 5 cm. long present on right middle base of skull as continuation fissured fracture of internal injury No. 15. ( 7 ) PW-10 deposed that the cause of death of the deceased was respiratory and circulatory failure due to injury to brain on account of fracture of skull to head injury. He further deposed that Injury Nos. 13 to 19 are fatal in nature which may lead to death in normal course. This witness also deposed that injury No. 1 to PW-1 could have been caused by MO-5. Similarly all injuries to the deceased could have been caused by MO-5 as well as sticks. This witness in cross-examination admitted that lacerated injuries can be caused by blunt object and the deceased received injuries, both on left and right sides and injuries caused to PW-1 are on the left side and on her back and this witness also deposed that these injuries could have been caused by a all on the blunt object and injury No. 2 on the shoulder can also be caused by a fall on blunt object on the shoulder of PW-1. It is not possible to cause so many injuries even if one falls on a hard object on a slanted place and certain questions were put relating to consuming of alcohol and dilution of the same. It is not possible to cause so many injuries even if one falls on a hard object on a slanted place and certain questions were put relating to consuming of alcohol and dilution of the same. ( 8 ) THE main contention of learned Counsel for the appellants is that the evidence of eye witnesses is not in clear conformity with the medical evidence and specific overt acts had not been attributed and since it is doubtful as to who had caused which injury which had resulted in the death, the conviction under Section 304 Part-I IPC also cannot be sustained and benefit of doubt to be given to A-1 to A-3 and A-4 also. Ex. P-1 reads as hereunder: ( 9 ) ON 19-6-97 on a Thursday night at about 8. 30 P. M. herself and her husband along with children were sitting in the verandah of their house her husband Mattam Bodam Naidu showing the house of Mattam Chiranjeevi Naidu and uttered about two months back unnecessarily beat him with bamboo stick again he called him and challenged him to come and beat him. After hearing this Chiranjeevi Naidu, his son Rajam Naidu (Parandham) came there by running and uttered that to get away from the village Chiranjeevi Naidu beat him with stick which was in his hand. Rajam Naidu climbed the top of house and removed the tiles. Meanwhile she climbed the house and removed the tiles. Meanwhile she climbed the house and obstructed him and both fell down. Meanwhile Mattam Rajam Naidu s/o. Bangaru Naidu, Mattam Laxmi Naidu s/o. Bagaru Naidu both brothers came there with sticks by running and beat her husband on his head and on the body. Mattam Rajam Naidu (Parandham) beat her husband on the right hand and little finger and left arm. When she was obstructed Mattam Rajam Naidu s/o. Bangarunaidu beat her on her head and on her back. On knowing the galata her daughter Suryakantham, her brother-in-law s son Mattam Bondu Naidu s/o. Ramu Naidu came there and obstructed. Her husband due to the injuries fell unconscious. Today i. e. , on 20-6-97 Friday morning for treatment at Government Hospital Paderu her husband died at the Mattam bus stop junction. This report was given for necessary action. ( 10 ) PW-1, the wife of the deceased, deposed in detail about the incident. Her husband due to the injuries fell unconscious. Today i. e. , on 20-6-97 Friday morning for treatment at Government Hospital Paderu her husband died at the Mattam bus stop junction. This report was given for necessary action. ( 10 ) PW-1, the wife of the deceased, deposed in detail about the incident. This witness deposed that they had received the message about the sickness of their son Krishnamnaidu who is studying at Seekara in the school and they went to the school and brought their son back to their house at 7 p. m. PW-1, the deceased and their daughter took meals after laying their son on the cot who was sick. They were sitting in the varandah of the house and she was in sorrowful mood due to the sickness of their son and was worrying about his treatment. PW-1 further deposed that opposite to their house is the house of Chiranjivi Naidu and Chiranjivi Naidu, Rajam Naidu and another were sitting in their house in vaandah and were talking. Two months prior to this there was a quarrel between the deceased and Chiranjivi Naidu with regard to plucking of tamarind and when the deceased found fault that Chiranjivi Naidu beat him for no reason subsequently there was some understanding and misunderstandings were removed. PW-1 further deposed that Chiranjivi Naidu and Rajam Naidu came to their house while they were sitting in the varandah and the deceased uttered that unnecessarily he was beaten earlier which cannot be tolerated. Then Rajam Naidu and Chiranjivi Naidu expressed that even that night nobody comes to his rescue if he was beaten and Chiranjivi Naidu armed with stick and Rajam Naidu came over the house through tiles and was beating. Chiranjivi Naidu beat the deceased on his head. PW-1 further deposed that when Rajam Naidu was disturbing the tiles by throwing them at them, she pulled his down for causing damage and Rajam Naidu fell down. After that Rajam Naidu and Latchma Naidu armed with sticks came and beat the deceased once again indiscriminately al over the body and also over the head. When PW-1 and her daughter raised hue and cry and tried to rescue the deceased, Rajam Naidu beat PW-1 on her head and back and she fell down. The daughter of PW-1 raised alarm in a loud voice drawing the attention of the locality people. When PW-1 and her daughter raised hue and cry and tried to rescue the deceased, Rajam Naidu beat PW-1 on her head and back and she fell down. The daughter of PW-1 raised alarm in a loud voice drawing the attention of the locality people. On hearing the same Bonju Naidu, brother-in-law of PW-1, came and on his trying to interfere and finding fault with the accused all of them ran away. This witness also deposed in detail about the other aspects of taking the deceased to hospital, the death and also show being examined and giving identifying M. O. 1 to 6 which had been marked in this regard. ( 11 ) IT is pertinent to note that A-2 and A-3 both are Rajam Naidu and A-2 is shown as Rajam Naidu @ Parandam s/o. Chiranjivi Naidu and A-3 is shown as Rajam Naidu s/o. Bangaru Naidu. In the evidence of PW-1 also PW-1 explained that at the first instance A-1 and A-2 came and just subsequent thereto A-3 and A-4 came to the spot. This witness was cross-examined at length but nothing serious to discredit her evidence had been elicited. PW-2 is the daughter of PW-1 who had corroborated the evidence of PW-1 in all material particulars. PW-3 deposed that the deceased Bodam Naidu is his junior paternal uncle and he was sleeping in the house and he heard loud alarming sound that her husband was being killed and he could understand that the alarm was raised by his aunt PW-1 and by the time he came out and went there A-1, A-2, A-3 and A-4 were beating the deceased on his head. Out of four people only three people were having sticks in their hands. A-1, A-3 and A-4 were armed with sticks. This witness also deposed that he had lifted his uncle who was lying on the ground near the threshold and made him rest on the cot. Thereafter he went to call his father and while going to his house on the way Laxmi Naidu threatened that he would kill him also. He had narrated all the other details and this witness was cross-examined but nothing serious had been elicited to discredit PW-3. PW-4 Mattam Subhadramma no doubt deposed that Mattam Bodam Naidu, the deceased is no more and she does not know how he died. This witness was declared hostile. He had narrated all the other details and this witness was cross-examined but nothing serious had been elicited to discredit PW-3. PW-4 Mattam Subhadramma no doubt deposed that Mattam Bodam Naidu, the deceased is no more and she does not know how he died. This witness was declared hostile. PW-5 also was permitted to be cross-examined by the prosecution. PW-6 also had not supported the version of the prosecution and she was permitted to be cross-examined by the prosecution. PW-7 deposed about Ex. P-6 and also seizure of MO-1 to MO-3, MO-5 and MOs. 7 and 8. PW-8 is the Sarpanch of Guttuluputti village panchayat and this witness deposed that he was not present at the time of arrest of the accused and he was permitted to be cross-examined by the prosecution. PW-9 deposed about Ex. P-8 inquest panchanama. PW-11 is the Head Constable who registered Cr. No. 17/97 under Sections 302, 427, 323 r/w. Section 34 IPC and this witness also deposed about the details of investigation and further deposed that the Inspector came to the scene of offence and continued further investigation. PW- ( 12 ) IS the Inspector of Police who deposed about the details of investigation and filing of the charge sheet. These Investigating Officers also had been cross-examined at length. ( 13 ) DW-1 was examined who deposed that A-3 and A-4 are residents of colony and not residing in the village and colony is at a distance of our furlong from the village. He further deposed that the deceased Bodam Naidu died about three years ago and he saw the deceased on Thursday last time when he was alive. When DW-1 and the deceased went to Guttulaputti shandy his wife also accompanied him and after taking drink near shandy the deceased had a quarrel with Balam Naidu who is the junior paternal uncle of the deceased and they returned back to the village. DW-1 further deposed that during that night he went to watch his fields and A-1 also came to the fields and his son also accompanied him and during the entire night they were at the fields watching the crop. This witness DW-1 was examined most probably to raise the plea of alibi. Certain suggestions were denied but however this witness stated that he cannot say whether A-1 and his son slept in their field or they were in their house. This witness DW-1 was examined most probably to raise the plea of alibi. Certain suggestions were denied but however this witness stated that he cannot say whether A-1 and his son slept in their field or they were in their house. ( 14 ) ON the strength of this evidence, benefit of doubt was given relating to the main charge as far as A-2 is concerned and A-2 was convicted under Section 426 IPC only and A-1, A-3 and A-4 were convicted under Section 304 Part-I IPC. The evidence of PW-1 and PW-2 is clear and categorical and merely because they are relative witnesses to the deceased their evidence cannot be disbelieved. The evidence of PW-1 who is also the injured witness is natural and convincing well supported by the evidence of PW-2 and upto some extent by PW-3 also. It is no doubt true that in the medical evidence several injuries had been spoken to by PW-10. PW-1 specifically deposed about this aspect. It is no doubt true that merely because the plea of alibi taken by the accused fails, automatically the same may not enure to the benefit of prosecution, but the prosecution may have to prove the guilt of accused beyond all reasonable doubt. In Chandrika Prasad Singh vs. State of Bihar (AIR 1972 S. C. 109) it was held that the onus to prove alibi is on the accused inasmuch as it would be a matter within his special knowledge. In Dudh Nath Pandey Vs. State of U. P. A. (AIR 1981 S. C. 911) the Apex Court held that the plea of alibi postulates the physical impossibility of the presence of the accused at the scene of offence by reason of his presence at another place and the plea can therefore succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the scene of offence. In State of Haryana Vs. Prabhu (AIR 1979 S. C. 1019) it was held that the falsity of the plea of alibi may not be of any consequence where the prosecution failed to prove the case beyond all reasonable doubt. In State of Haryana Vs. Prabhu (AIR 1979 S. C. 1019) it was held that the falsity of the plea of alibi may not be of any consequence where the prosecution failed to prove the case beyond all reasonable doubt. ( 15 ) IN the present case, from the evidence available on record, the evidence of DW-1, it is clear that the distance is not far away and even otherwise the presence of the accused as the spot cannot be said to be an impossibility in the light of the plea taken by the accused by examining DW-1. Hence the plea of alibi had not been substantiated and the same had been rejected by the learned Judge on appreciation of evidence and hence the said findings are hereby confirmed. In a case of this nature where several injuries had been caused it would be very difficult to clearly correspond the medical evidence and all the injuries and the overt acts which had been attributed to the specific accused. However, the evidence of PW-1 and PW-2 is clear and categorical relating to the hitting of the deceased by A-1 with a stick. It is no doubt true that the charge under Section 34 IPC had been negatived by the learned Judge. Section 34 IPC dealing with Acts done by several persons in furtherance of common intention, reads as hereunder: when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Submissions at length were made that since the medical evidence shows that Injuries 13 to 19 are fatal since it had not been established by attributing overt acts benefit of doubt to be given to other accused also. It was specifically deposed by PW-1 that A-1 and A-2 came first. A-1 was armed with a stick and A-2 came over the house through tiles and he was beating and A-2 was disturbing the tiles by throwing them and PW-1 pulled him down. Subsequent thereto A-3 and A-4 armed with sticks came there and beat the husband of PW-1 once again indiscriminately all over the body and also over the head. That is the evidence available on record. Subsequent thereto A-3 and A-4 armed with sticks came there and beat the husband of PW-1 once again indiscriminately all over the body and also over the head. That is the evidence available on record. Hence even in the light of the evidence of PW-3 it is clear that A-1, A-3 and A-4 were armed with sticks and they attacked the deceased and also attacked PW-1 who also sustained injuries. It appears that there was prior enmity between the parties and no doubt PW-1 deposed that subsequent thereto there was some understanding and misunderstandings had been removed but however the cause for the problem is that the deceased, the husband of PW-1, uttered that unnecessarily he was beaten earlier which cannot be tolerated and in retaliation again the accused came and beat the deceased, which had resulted in the death of the deceased. In the light of the evidence available on record though the charge under Section 34 IPC was held to be not proved, this Court is of the considered opinion that in the light of the evidence of PW-1 to PW-3 coupled with the medical evidence due to the indiscriminate beating with sticks by A-1, A-3 and A-4, the deceased died and PW-1 sustained injuries and there cannot be any doubt or controversy relating to the same. It is no doubt true that A-2 was given benefit of doubt and he was convicted only under Section 426 IPC. Section 425 and 426 IPC dealing with Mischief and the Punishment for mischief respectively, read as hereunder: mischief: Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits mischief. Explanation. 1. It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. Explanation. 2. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. Explanation. 2. Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly. Punishment for mischief: Whoever commits mischief shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both. ( 16 ) IN the light of the evidence available as against A-2 the said conviction also is justified. Hence in the facts and circumstances of the case, the conviction imposed as against A-1 to A-4 are hereby confirmed but however taking into consideration the facts and circumstances A-1 is sentenced to undergo Rigorous Imprisonment for a period of 3 years and to pay a fine of Rs. 500/-, in default to undergo Rigorous Imprisonment for two months. A-3 and A-4 are sentenced to Rigorous Imprisonment for 3 years and to pay a fine of Rs. 500/- each in default to undergo Rigorous Imprisonment for two months. As far as the imposition of fine of Rs. 1000/-, in default to suffer Simple Imprisonment for three months as against A-2 is concerned, the same is hereby confirmed. Except the above modification of sentence as against A-1, A-3 and A-4, in all other particulars the findings are hereby confirmed. Accordingly, the Criminal Appeal shall stand dismissed subject to the above modification of sentences as against A-1, A-3 and A-4.