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2004 DIGILAW 1362 (AP)

Suram Nageswara Reddy v. State Of A. P.

2004-11-11

P.S.NARAYANA

body2004
( 1 ) A1, A2, A3, A6 and a12 in S. C. No. 126/93 on the file of additional Sessions Judge, Ongole are the appellants. The learned Judge on appreciation of the evidence of PW1 to PW14, Exs. P1 to P10, Exs. Dl to D12 and M. Os. 1 to 4 recorded acquittal as against A4, A5, A7 to a11, but convicted the appellants under sections 148 and 326 IPC and sentenced them accordingly. Hence the criminal appeal. ( 2 ) ACCUSED 1 to 12 were charged with Sections 148 and 302 IPC. The case of the prosecution is that A2 to A12 are the henchmen of A1 and A1 is the main accused in Cr. No. 75/90 for the offence under Sections 147, 148, 324, 302 read with section 149 IPC of Ongole Taluq P. S. and the deceased Kandukuri Venkateswarlu is the main witness. It is also the case of the prosecution that the said Kandukuri venkateswarlu, hereinafter referred to as "deceased" used to challenge that he will see the accused in Cr. No. 75/90 be convicted. A1 and his associates A2 to A12 threatened him and the witnesses. The wife of the deceased also had sent a petition to the district Collector and other Officers for protection. In view of the same the accused hatched up a plan to do away with the life of the deceased. The accused formed themselves into an unlawful assembly armed with deadly weapons, axes, spears etc. , attacked the deceased who was lying on cot in front of his house at about 8. 45 p. m. , on 25. 11. 1991 in pursuance of their common object A1 beat the deceased on his left jaw, left portion of the heard, left ear with axe; A2 axed the deceased on his left hand; A3 and A4 beat the deceased with the axe on his left and right hands; A5 beat the deceased with axe on his waist; A6 and A7 beat the deceased with axe on his left hand shoulder and left hand; A8 beat the deceased with an axe on his chest. A-9 beat the deceased with an axe on his back; A10 speared the deceased on his thighs; A-11 beat the deceased with axe on his right hand; A12 beat on the neck of the deceased with axe. A-9 beat the deceased with an axe on his back; A10 speared the deceased on his thighs; A-11 beat the deceased with axe on his right hand; A12 beat on the neck of the deceased with axe. The witnesses shifted the deceased to the Government Hospital, Ongole where he was declared dead. On receipt of the intimation from the Government Hospital, the Sub-Inspector of Police, Ongole Taluq police Station visited Government Hospital and recorded the statement of Kandukuri somaiah, brother of the deceased and registered a case in Cr. No. 187/91 under sections 147, 148, 302 read with Section 149 ipc. During the course of investigation, the Sub-Inspector of Police visited the scene of offence, prepared observation report in the presence of mediators and seized blood stained and controlled earth and also finger of the deceased under the cover of mediators report. Inquest was held over the body of the deceased and the body was sent to post-mortem examination. The case was taken on file under Sections 148 and 302 IPC by the III Additional judicial First Class Magistrate, Ongole as prc No. 11/92 and the same was committed to the Court of Session which was made over to the Additional Sessions Judge, ongole. ( 3 ) THE prosecution examined as many as 14 witnesses and Exs. P1 to P10 and m. Os. 1 to 4 were marked. As already referred to supra, on appreciation of evidence, the learned Judge recorded acquittal so far as it relates to A4, A5, A7 to A11 are concerned and convicted A1 to A3, A6 and A12 under Section 148 ipc and sentenced them to rigorous imprisonment for three years and A2 and a12 were further convicted for an offence under Section 326 IPC to suffer rigorous imprisonment for 10 years and also to pay a fine of Rs. 1,000/- each, in default to suffer simple imprisonment for 3 months and both the sentences as against A2 to A12 were directed to run concurrently. ( 4 ) SRI. PADMANABHA Reddy, the learned Senior Counsel representing the appellants would submit that in the present case certain findings had been recorded by the learned Judge which are contrary to the evidence available on record. PW6 did not refer to A12 at all but it was recorded by the learned Judge as though PW6 had spoken about A12 too. PADMANABHA Reddy, the learned Senior Counsel representing the appellants would submit that in the present case certain findings had been recorded by the learned Judge which are contrary to the evidence available on record. PW6 did not refer to A12 at all but it was recorded by the learned Judge as though PW6 had spoken about A12 too. The learned Counsel also would point out that the test of the overt acts had not been followed by the learned Judge and when such test is applied the conviction of the appellants also cannot be sustained in view of the variations between the evidence of PW1, pw2, PW3, PW4, PW5 and also the medical evidence. Except general allegations made and except PW3 and PW5 others had not deposed about A12 at all. Though the presence of A6 was spoken to by the witnesses it is highly doubtful whether a6 was present at all at the scene of offence especially in the light of the evidence of DW2. The learned Senior counsel after pointing out to the infirmities would contend that when the presence of a6 and A12 would be doubtful in the light of the evidence available on record, there cannot be any conviction in relation to any unlawful assembly as such and the evidence as against A1 also is vague and certain exaggerated versions also are there as against A1 and hence on over-all appreciation of the facts and circumstances the appellants are entitled to the benefit of doubt. The learned Senior Counsel also placed reliance on Mallappa v. State of karnataka, 1995 SCC (Crl.) 414. ( 5 ) PER contra, the learned Additional public Prosecutor Mohd. Osman Shaheed, would contend that in a case of this nature where a group of persons attacked, all witnesses cannot depose in the same fashion and the minor contradictions pointed out by the learned Counsel definitely cannot touch the veracity of these witnesses since the witnesses clearly deposed about the presence of these accused. It is no doubt true that certain witnesses had not specifically deposed about A12, but the evidence of PW3 and PW5 is available on record. It is no doubt true that certain witnesses had not specifically deposed about A12, but the evidence of PW3 and PW5 is available on record. The learned Additional Public prosecutor also would explain that on over all appreciation if there is sufficient corroboration that would be sufficient to sustain the conviction and the learned counsel also would submit that even on the testimony of a single witness, conviction can be sustained if the evidence of such witness is trustworthy and believable. ( 6 ) HEARD both the Counsel. ( 7 ) AS already referred supra, the prosecution had examined PW1 to PW14 and Exs. P1 to P10 and M. Os. 1 to 4 also were marked. DWs. 1 to 4 were examined and Exs. D1 to D12 were marked on behalf of the defence. DW2 was examined for the purpose of showing that A6 could not have been present at the scene of offence. DW2 deposed that in 1991 he worked as Divisional Executive Engineer, markapur and he knows A6 and he was working in his office as Upper Division clerk and he issued certificate Ex. D8 according to which A6 was in office on 25. 11. 1991 between 2 and 5 p. m. , and he issued certificate on 6. 12. 1991. The distance between Ongole and Markapur is about 96 k. Ms. In cross-examination this witness deposed that Ex. D5 was issued on the requisiton by A6 and he does not know whether his request was oral or written and in Ex. D8 it is not mentioned whether he had perused the attendance register relating to the attendance of A6 in the office. It was further deposed that the office timing is between 10. 30 a. m. , and 5 p. m. , and they will be giving permission of two hours if there is any personal work to the individual and he does not know where A6 was between 10. 30 a. m. , and 2 p. m. , and it will take two hours to reach ongole from Markapur. DW2 denied the suggestion that he had accommodated A6 by giving certificate though he was present in Court on that day at Ongole and no doubt this witness denied the other suggestions. 30 a. m. , and 2 p. m. , and it will take two hours to reach ongole from Markapur. DW2 denied the suggestion that he had accommodated A6 by giving certificate though he was present in Court on that day at Ongole and no doubt this witness denied the other suggestions. ( 8 ) IN the decision referred Mallappa v. State of Karnataka (supra) it was held that the overt act test need not only be a decisive test but is one of the legitimate tests to be applied while scrutinizing the evidence. If such overt acts are mentioned consistently right from the stage of the fir and if the medical evidence supports it, then such of those accused to whom such overt acts have been attributed, could safely be held to be members of the unlawful assembly with the common object of committing those offences. It was also held by the Apex Court in relation to appreciation of evidence that where FIR was lodged by partisan witness that by itself is not a ground to reject the entire prosecution case and the version given in fir assumes importance for scrutinizing later deposition in which other witnesses come forward with more details, and where on facts the presence of first informant at the scene of occurrence was not in doubt his evidence can be accepted in respect of those accused to whom overt acts had been attributed in the FIR and the mere delay in lodging FIR or conduct of the first informant in not informing the relatives of the deceased immediately cannot be a ground for rejecting his evidence outright. ( 9 ) PW1 specifically deposed about ex. P1 and he also deposed that the deceased is his younger brother and he died six years ago and he knows all the accused and this witness also deposed that he cannot identify the accused persons who are at a distance, but he can give the names of the accused and since six months he is having defective vision due to ill-health. On the date of incident at about 8. 30 p. m. , he was returning from tobacco barran and reached the house of his younger brother, the deceased. In front of the house of the deceased there was a street light burning and his brother was lying on the cot in front of his house. On the date of incident at about 8. 30 p. m. , he was returning from tobacco barran and reached the house of his younger brother, the deceased. In front of the house of the deceased there was a street light burning and his brother was lying on the cot in front of his house. PW2, the wife of the deceased, was also in front of the house and neighbours were also present. The accused persons namely a1, A2, A3, A5, A6 and others i. e. , about 10 to 11 persons were around the cot in which the deceased was lying and they were armed with axes and spears. A1 axed the deceased with an axe on his left shoulder. A2 axed the deceased with an axe on the left side thigh. A3 axed the deceased with an axe on his left finger and it cut-off. A5 axed the deceased on the right side thigh. Rangadu, Subbareddy, ramanjalu and others were around the deceased and they also axed the deceased with axes. The deceased was the main witness in the earlier double murder case and as he intended to give evidence in the double murder case he was axed to death. The deceased became unconscious at the place of occurrence. Then he was shifted to Government Hospital, Ongole for treatment and on examination the Medical officer, Government Hospital declared that the deceased expired. This witness was cross-examined at length. ( 10 ) PW2 is the wife of the deceased who also deposed about the incident on the fateful day. She deposed that she was alone at the threshold of her house and her husband was lying in front of the house on a cot. A1, A2, A3, A4, A5, A6 and others, about 12 members, murdered the deceased. Those persons were armed with axes, spears, bombs and knives. A1 axed the deceased on his left hand. A2 also axed the deceased on the same hand with an axe. The other persons hacked the deceased with weapons armed with them indiscriminately. PW2 raised cries and she also deposed about the other witnesses coming to the place of occurrence. When she raised crises, bombs were hurled and then the assailants left the place. A-1 hurled the bombs at the time of the incident. This witness also deposed about the other details. PW2 raised cries and she also deposed about the other witnesses coming to the place of occurrence. When she raised crises, bombs were hurled and then the assailants left the place. A-1 hurled the bombs at the time of the incident. This witness also deposed about the other details. This witness also identified the finger MO-1 and she also deposed that she observed the incident under the burning street light. This witness also specifically deposed the motive behind the incident i. e. , the double murder case. In cross-examination, the relevant contradiction telugu matter (okesari) is marked as Ex. D1 and she denied several suggestions put to her. ( 11 ) PW3 also had corroborated the evidence of PW1, PW2 and she deposed that A-1 hacked the deceased with an axe on the chest and the other accused beat him indiscriminately encircling him and she deposed that 12 persons beat the deceased. This witness identified about 12 persons under the streetlight. After the incident they ran away towards the street. This witness specifically deposed that when she rushed to the house of PW2, a1, A7, A4, A2, A6 and A12 and one rangaiah were beating the deceased with axes, spears and knives. Thus, PW3 had specifically deposed about A12. This witness was cross-examined at length and Exs. D2 and D3 were marked. She deposed that she did not state in her Section 161 Cr. PC statement that herself and other two witnesses witnessed the occurrence from the beedi bunk. The relevant contradiction was marked as Ex. D2. This witness also deposed that it is not correct to say that she stated in her Section 161 Cr. PC statement that they went near the scene of occurrence after the accused left the place and then PW2 came to the scene of occurrence. The said contradiction was marked as Ex. D3. This witness was cross- examined at length. ( 12 ) PW4 is yet another witness who had deposed about seeing A-1, A2, A3, A7, a5, A9 and A11 and one Bambula rangaiah armed with axes, knives and spears beating the deceased indiscriminately. This witness also deposed that he saw A5 hacking the deceased with an axe on his back. A6 hacked the deceased with an axe on the left side of the back. A1 hurled bomb and then the accused left the place and he saw the deceased with bleedings injuries. This witness also deposed that he saw A5 hacking the deceased with an axe on his back. A6 hacked the deceased with an axe on the left side of the back. A1 hurled bomb and then the accused left the place and he saw the deceased with bleedings injuries. PW2, the wife of the deceased also was present in front of her house. The neighbours gathered and the deceased was taken to the hospital. This witness also was cross-examined at length. ( 13 ) PW5 specifically deposed about seeing A1, A2, A6, A10, A12 and others surrounding the cot of the deceased. A10 poked the deceased with a spear on his buttocks. A12 hacked the deceased with an axe on his neck. Thus, specific overt act was attributed to A12 by PW5. PW5 further deposed that A6 hacked the deceased with an axe on his left shoulder. A1 hurled bomb at the time of the incident and then they left the scene of offence. Thus, there is evidence relating to the clear presence of A1 and hurling bomb by A1 too. This witness in cross-examination deposed that he did not state before police that due to fear he did not come to the place of occurrence and the said contradiction was marked as Ex. D5. This witness also deposed that he did not state before the police that he went to the place of occurrence after the accused left the place and the said contradiction was marked as Ex. D4. ( 14 ) PW6 deposed that she had seen a1, A2, A4, A7, A11 and A3 Bombula rangadu, A5 and others about 10 persons going in a group armed with axes and knives and she heard the cries of PW2, the wife of the deceased and rushed to the house of PW2. By the time she went there A4 beat the deceased with an axe on his left hand. A4 also beat the deceased with an axe on his left hand. A11 beat the deceased with an axe on his left hand. A3 hacked the deceased with an axe on his left hand. A8 hacked the deceased with an axe on his chest and A1 hurled bomb and then left the place. Thus the presence of A1 and A1 hurling the bomb is corroborated by this witness also. This witness, PW6, was cross-examined at length. A3 hacked the deceased with an axe on his left hand. A8 hacked the deceased with an axe on his chest and A1 hurled bomb and then left the place. Thus the presence of A1 and A1 hurling the bomb is corroborated by this witness also. This witness, PW6, was cross-examined at length. She also deposed that it is not correct to say that she did not state before the police that the accused armed with knives were going in front of her bunk and she also deposed that she did not state as in ex. D6 that after the bombs were hurled and after the accused left the place she went to the place of occurrence and the same was marked as Ex. D6 by was of contradiction. ( 15 ) PW7 simply deposed about PW1 meeting her in bazaar and telling that the deceased was beat by A1 and others and requesting him to provide for a vehicle to take the injured to the hospital. This witness also deposed that he gave his tractor to carry the injured to the Government hospital. This witness deposed that he did not state before the police that they got admitted the injured person in the hospital and the relevant contradiction that he admitted the injured in the hospital was marked as Ex. DV. PW8 deposed that the deceased was an eye witness in a double murder case and while the double murder case was about to commence in the Court of Ongole, the Accused 3, 1, 2 (the witness added that all the accused in this case) threatened him and also Madasu Siva kumari not to give evidence in the double murder case. In that connection they sent petitions to the District Collector and superintendent of Police to give protection and this witness simply deposed on the day of the incident when the deceased was lying on a cot in front of his house, all the accused murdered him at 8. 30 p. m. PW8 also deposed that the deceased was the first witness in the double murder case in relation to her husband and she also deposed that the accused threatened them not to give evidence in the double murder case and further deposed about sending petitions to the District Collector and police Officials requesting protection. 30 p. m. PW8 also deposed that the deceased was the first witness in the double murder case in relation to her husband and she also deposed that the accused threatened them not to give evidence in the double murder case and further deposed about sending petitions to the District Collector and police Officials requesting protection. PW10 deposed about the police seizing control earth, blood stained earth, cut little finger and the witness also identified MO2 blood stained earth, MO3 controlled earth, MO4 bomb explosion remnants and Ex. P2 observation report was prepared in their presence. This witness also was cross- examined at length. ( 16 ) PW 11 deposed about attestation of the inquest report Ex. P3. PW12 who had conducted post-mortem examination over the deceased found the following injuries: external Injuries:1. An incised injury of 6 x 2 x 1 cms. on the left temporal region; edges are well defined even clear cut with blood clots. 2. An incised injury of 6 x 2 cms. skull cavity deep on the left side just below the Injury No. 1 and above the left ear. Its edges are even, well defined and clear cut. Brain matter is exposed. 3. An incised injury of 6 x 2 cms. skull cavity deep exposing brain matter on the head just below Injury No. 2 above the left ear. Its edges are well defined, even and clear cut. 4. An incised injury of 6 x 2 cms. bony deep on the left side of the chin. Edges are clear cut and even. 5. An incised injury of 5 x 2 x 2 cms. on the left shoulder. Edges are clear cut and well defined. 6. An incised injury of 5 x 2 x 2 cms. on the middle of the left upper arm anteriorly; edges are clear cut. 7. An incised injury of 5 x 2 x 2 cms. on the inner aspect of the left upper arm at its lower one third. Edges are clear cut. 8. An incised injury of 6 x 2 cms thorasic cavity deep on the left side of the chest at 6th intercostals space on the anterior auxiliary line, exposing the lung. Its edges are clean cut, well defined. 9. An incised injury of 4 x 2 x 1 cms. on the left side of the chest; 4 cms. above the left nipple. Its edges are clear cut. Its edges are clean cut, well defined. 9. An incised injury of 4 x 2 x 1 cms. on the left side of the chest; 4 cms. above the left nipple. Its edges are clear cut. 10. An incised injury of 6 x 2 x 1 cms. on the left scapula. Edges are clear cut. 11. An incised injury of 4 x 2 x 2 cms. below the left axilla. Edges are clear cut. 12. An incised injury of 4 x 2 x 1 cms. on the right scapular. Edges are clear cut. 13. An incised injury of 4 x 2 x 2 cms. on the right thigh at its upper end spindle shaped. Edges are clear cut. Well defined. 14. An incised injury of 4 x 2 x 1 cms. on the left thigh at its upper part. Its edges are clear cut. 15. An incised injury of 3 x 2 x 1 cms. below the left knee. Its edges are clear cut. 16. An incised injury of 3 x 1 x 1 cms. on the right fore arm at its upper 1/3rd. Edges are even, clear cut. 17. An incised injury of 2 x 1 x cms. on the right thumb. 18. An incised injury of 4 x 2 x 2 cms. on the right palm. 19. Absence of right little finger with an incised injury of 2 x 2 x cms at its base. 20. An incised injury of 3 x 1 x 1 cms. on the right fore-arm at its middle. Edges are clear cut. 21 An incised injury of 2 x 2 x 1 cms. on the right side of the neck anteriorly. Its edges are clear cut. A11 the above injuries are ante-mortem. Internal Injuries: 1. Laceration of the entire left hemisphere of the brain with blood clots present and this injury corresponds to the external injuries 2 and 3 externally. 2. Laceration of left lower lobe of the lung with blood clots. This injury corresponds to the external Injury no. 8. Heart: Empty, Pale. Liver: L Pale, normal; spleen: Normal; kidneys: Normal; Bladder: normal; Stomach and intestines: Normal. This witness was of the opinion that the deceased would appear to have died to vital injuries to the brain and lungs which caused haemorrhage and neurogenic shock and might have died about less than 24 hours prior to the post-mortem examination. 8. Heart: Empty, Pale. Liver: L Pale, normal; spleen: Normal; kidneys: Normal; Bladder: normal; Stomach and intestines: Normal. This witness was of the opinion that the deceased would appear to have died to vital injuries to the brain and lungs which caused haemorrhage and neurogenic shock and might have died about less than 24 hours prior to the post-mortem examination. The post-mortem certificate issued by him is marked as Ex. P4. PW2, PW3, PW8 are the main vital injuries. Added to this other injuries caused haemorrhage and neurogenic shock. Injuries 2 and 3 can be caused with a sharp edged heavy weapon like axe. Other injuries can be caused by any sharp edged weapon like knife and sickle. Injury No. 13 can be caused with a spear. It was further deposed that due to the cumulative effect of the above injuries, death can be caused in the ordinary course. This witness also was cross-examined. ( 17 ) PW13 is the S. I. who deposed about the details of investigation and the contradictions were put to this witness. PW14 is the Inspector of Police who deposed about certain details of investigation. ( 18 ) THE defence witnesses DW1 to dw4 were examined and in view of the acquittal recorded in relation to certain of the accused, the evidence of DW2 alone may be of some relevance inasmuch as it is in relation to A6. ( 19 ) THE evidence already had been discussed supra. It was no doubt pointed out that at Para 13 of the judgment, the learned Judge recorded that PW6 in his evidence stated that A12 hacked the deceased on the neck with an axe. Much comment was made relating to the same. When the version of the prosecution is that a group of persons attacked the deceased the witnesses may be witnessing the occurrence from different angles and at different times and always witnessing need not be simultaneous commencing at the same point of time from the same direction by all the witnesses and as far as overt acts are concerned, corroboration of certain witnesses may be there and the mere fact that certain witnesses had not deposed about the participation of a specific accused, that by itself always may not enure to the benefit of the accused if otherwise acceptable evidence is there on record regarding their participation in perpetrating the crime. Whether it would be safe to convict such accused on the strength of such evidence or benefit of doubt to be given to such accused would depend upon the facts and circumstances of a given case. On the ground of applicability of overt acts test, submissions at length were made by the learned Senior Counsel and inasmuch as there is some discrepancy between the medical evidence and the specific overt acts which had been deposed by these witnesses, the whole version of the prosecution to be disbelieved. It is no doubt true that PW1 deposed about some defective eye-sight and PW5 deposed in cross-examination that he is of 70 years old at present. ( 20 ) IN the case of unlawful assembly when the version of the prosecution is that a group of persons attacked it would be natural that there would be certain variations and in appreciating the evidence, court may have to look into whether these variations are of such a nature which would shake the very foundation of the version of the prosecution or the same can be otherwise relied upon. In V. Thevar v. State of Madras, AIR 1957 SC 614 , it was held:"the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in Section 134, which by laying down that "no particular number of witnesses shall, in any case, be required for the proof of any fact" has enshrined the well recognized maxim that "evidence has to be weighed and not counted". It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the Presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. It is here that the discretion of the Presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if Courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the Court to convict, if it is satisfied that the testimony of a single witness is entirely reliable". In Ex. P1, the names of the appellants had been specifically mentioned. It is no doubt true that on appreciation of evidence, acquittal had been recorded as against A4, a5, A7 to A11. The learned Judge recorded reasons in detail why the plea of alibi set up by A6 cannot be believed while appreciating the evidence of DW2. It is needless to say that alibi is a week piece of evidence and also in view of the time gap in between closing of the office hours and the time of incident, it cannot be said that A6 was able to establish his presence elsewhere exactly at the relevant point of time and hence the findings recorded by the learned judge in disbelieving the plea of alibi raised by A6 cannot be found fault in any way. It is no doubt true that at Para 13 of the judgment the learned Judge recorded that in the evidence of PW1 he had stated that A12 hacked the deceased on the neck with axe and it appears to be due to a bona fide mistake. Submissions at length were made on the strength of this mistake to the effect that there is total non- application of mind by the learned Judge in appreciating the matter. As per Ex. P1, A2 hacked on the left upper arm of the deceased with an axe. This aspect was corroborated by PW2 who specifically deposed that a2 hacked the deceased on the left hand. PW3 also deposed that A2 and A6 hacked the deceased on the left hand. PW4 deposed that A1 to A3, A5, A7 and a9 beat the deceased indiscriminately. It is no doubt true that specific overt acts in relation to A2 had not been deposed. PW12 had deposed about Injury No. 6 specifically in the post-mortem report Ex. PW3 also deposed that A2 and A6 hacked the deceased on the left hand. PW4 deposed that A1 to A3, A5, A7 and a9 beat the deceased indiscriminately. It is no doubt true that specific overt acts in relation to A2 had not been deposed. PW12 had deposed about Injury No. 6 specifically in the post-mortem report Ex. P4 and it is an incised injury on the middle of the left upper arm and there is yet another injury on the left upper arm on its lower 1/3rd. It is the version of the prosecution that A6 and a7 beat the deceased with an axe on his left hand and shoulder. As per Ex. Pl, a6 to A12 hacked on the back, right side of the head, nose and poked with spears and specific overt acts had not been attributed to A6. PW1 to PW3 also had not attributed any specific overt acts to A6. PW4 deposed that A6 hacked the deceased on the left side of the back. PW5 no doubt deposed that A6 hacked with an axe on the left shoulder of the deceased. PW6 had not deposed about this aspect. But however, the plea of A6 that he was in Divisional executive Engineer s office at Markapur on the fateful day was disbelieved even after discussing the evidence of DW1 in detail. On appreciation of the evidence available on record, the learned Judge came to the conclusion that the presence of A4, A5, a7 to A1 1 is highly doubtful and the overt acts attributed to A1, A3 and A6 regarding inflicting of blows also is not corroborated by the other Witnesses. Ex. D8 is the certificate issued by DW2 in relation to a6. Ex. D9 is the certificate issued by dw3 in relation to A7. Ex. D10 is the photostat copy of the attendance register for the month of November 1991 relating to a7. Exs. D11 and D12 are also diagnosis reports relating to A7. It is needless to say that in view of the fact that acquittal had been recorded as against A4, A5, A7 to a11, much of the defence evidence may not be relevant except the evidence of dw2 and Ex. D8. It is no doubt true that there are certain variations but these are not such material variations so as to shake the very foundation of the version of the prosecution. D8. It is no doubt true that there are certain variations but these are not such material variations so as to shake the very foundation of the version of the prosecution. The presence of A1 to A3, a6 and A12 had been specifically deposed and as far as the presence of A12 is concerned, though not deposed by all the witnesses, PW5 specifically deposed that a12 hacked the deceased with an axe on his neck and PW3 also deposed about the presence of A12 along with others and hence it cannot be said that the findings recorded in relation to A12 by the learned judge are either perverse or based on no evidence at all though some bona fide mistake had crept in regarding the findings in relation to A12 vis-a-vis the evidence of pw6. ( 21 ) NO doubt certain submissions also were made and the discrepancies in between the direct witnesses and the medical evidence also had been pointed out. It is pertinent to note that this is a case of unlawful assembly and a group of persons had attacked the deceased and as already referred to supra these variations pointed out definitely do not touch the very foundation of the prosecution case as can be clearly seen commencing from Ex. P1 and also on a careful scrutiny of the evidence of PW1 to PW6 and also the other evidence available on record. Hence, viewed from any angle, it cannot be said that the findings recorded by the learned judge suffers from any legal infirmity as such and hence the conviction as against a1 to A3, A6 and A12 under Section 148 ipc and as against A2 and A12 under section 326 IPC are hereby confirmed, but however the sentences as against A1 to a3, A6 and A12 under Section 148 IPC are hereby modified to rigorous imprisonment for 2 years and the sentences as against A2 and A12 in relation to the offence under Section 326 IPC are modified to rigorous imprisonment of 3 years and also to pay a fine of Rs. 1,000/- each, in default to undergo simple imprisonment for 3 months. As far as A2 and A12 are concerned, the sentences of imprisonment imposed shall run concurrently. 1,000/- each, in default to undergo simple imprisonment for 3 months. As far as A2 and A12 are concerned, the sentences of imprisonment imposed shall run concurrently. Except the modification of sentences referred to supra, in all other particulars, the findings of the learned Judge are hereby confirmed and the appeal is accordingly dismissed subject to the modification of sentences referred to supra.