A. GOPAL REDDY, J. ( 1 ) APPELLANTS-A-1 to A-5 and A-7 to A-9 in s. C. No. 365 of 1998 on the file of II Additional district and Sessions Judge, Nellore, who were tried for the offence under Sections 147, 148, 324, 302 r/w 149 IPC along with A-6, who died before framing the charges and case against him was abated, and convicted for various offences as detailed below, preferred this appeal challenging the judgment dated 14-03-2005 recording conviction and sentence forvarious offences. ( 2 ) THE first charge against A-1 to A-5, a-7 to A-9 and Late Vukukuru Seenaiah-A-6 is undersection 148 IPC. They were found guilty for the said offence and sentenced to undergo rigorous imprisonment for two years. The second charge against A-4 and A-6 and fifth charge against A-2 and A-3 is under section 307 IPC; the third charge against A-1 to A-3, A-5, A-7 to A-9 and A-6 and sixth charge against A-1, A-4, A-5, A-7 to A-9 and a-6 is under Section 307 r/w 149 IPC for attempting to commit the death of Pamula ramanaiah-P. W. 1. A-2 to A-4 are acquitted of the said charge, instead they found guilty for the offence under Section 324 r/w 149 IPC and a-5 was found guilty for the offence under section 324 r/w 149 while A-7 to A-9 were not found guilty for the said offence and they are acquitted. Each of them was sentenced to suffer rigorous imprisonment for two years. The fourth charge against A-7 to A-9 is under section 302 IPC and they were sentenced to suffer imprisonment for life and to pay fine of rs. 2,000/-, in default to suffer simple imprisonment for two months each. All the sentences were directed to run concurrently. ( 3 ) THE prosecution story in short runs thus: the deceased - Patrangi Ramanaiah s/o Polaiah was working as NMR in Municipal library. P. W. 3-Ragut Srinivasulu is the nephsw of the deceased. The deceased and P. W. 1- pamula Ramanaiah belongs to Telugu Desam party and A-1-Utukuru Laxmaiah and his brother-Utukuruadimurthybelongstocongress party. In the Municipal Elections A-1 contested as Councilor for 16th ward of Nellore Municipality on behalf of Congress Party, One Patrangi kannaiah contested against A-1 on behalf of telugu Desam Party. P. W. 1 and the deceased supported the said Kannaiah who was defeated by A-1. In the Municipal Elections A-1 contested as Councilor for 16th ward of Nellore Municipality on behalf of Congress Party, One Patrangi kannaiah contested against A-1 on behalf of telugu Desam Party. P. W. 1 and the deceased supported the said Kannaiah who was defeated by A-1. After that both the parties developed grudge against each of them. On 14-11 -1995 patrangi Velongini Raja of Telugu Desam party was murdered by A-1 and his brother- utukuru Adimurthy. The deceased and P. W. 1 were witnesses to the said occurrence. Therefore, the accused wanted to eliminate them. On 14-05-1996 at about 6 p. m. P. W. 1 and the deceased after completion of their work were proceeding to Akuthota harijanawada in a scooter. When they reached sweet meat shop, A-4 and A-6 beat P. W. 1 with iron rods on the hands; as a result, he lost control over the scooter; he and the deceased, who was the pillion rider, fell down. Then, A-1, a-2, A-3, A-5 and A-7 stabbed the deceased indiscriminately with knives all over his body. A-4 and A-6 beat the deceased with iron rods. A-2 tried to stab P. W. 1 but it missed; A-3 stabbed P. W. 1 with a knife on his left upper arm. When P. W. 1 tried to escape and went to pwd office, the accused chased him to some extent. Later, P. Ws. 2 and 3 shifted the deceased to the Government Head Quarters hospital, Nellore. On coming to know of the said incident the police reached the hospital, where P. W. 20-Head Constable recorded the statement of P. W. 1 marked as Ex. P-1 and the same was handed over to P. W. 21-Sub-Inspector of Police. Basing on which he registered a case in Cr. No. 57 of 1996 under sections 147, 148, 324, 307 r/w 149 IPC and issued Ex. P-17 - FIR to all the concerned and took up investigation; visited the hospital where he was informed that the deceased was shifted to Madras for better treatment. He examined p. Ws. 1 to 3 and recorded their statements. Meanwhile, P. W. 18-the II Additional Judicial first Class Magistrate, Nellore, on receipt of intimation from the Government Hospital, visited the hospital and recorded the dying declaration of the deceased, which is marked as Ex. P-13. On 15-05-1996 P. W. 21, visited the scene of offence, conducted panchanama - Ex. 1 to 3 and recorded their statements. Meanwhile, P. W. 18-the II Additional Judicial first Class Magistrate, Nellore, on receipt of intimation from the Government Hospital, visited the hospital and recorded the dying declaration of the deceased, which is marked as Ex. P-13. On 15-05-1996 P. W. 21, visited the scene of offence, conducted panchanama - Ex. P-7, prepared rough sketch-Ex. P-18 and during the course of investigation he further examined p. Ws. 5, 6, 8, 12, 17 and recorded their statements. On receipt of death intimation on 16-05-1996 he altered section of law and issued altered FIR-Ex. P-19. Subsequent investigation was taken over by P. W. 22-Inspector of Police, who visited the Apollo hospital, Madras held inquest over the dead body of the deceased in the presence of p. W. 18 and sent a requisition to P. W. 19-Assistant Professor, forensic Medicine at kilbank Medical College, Chennai for postmortem examination. P. W. 19 held autopsy over the dead body of the deceased on 18-05-1996 and opined that cause of death is complication of multiple stab injuries. He issued Ex. P-16 postmortem report. P. W. 22, the Investigating Officer, arrested A-2 to A-7 and A-9 on 28-05-1996 and during the course of interrogation at the instance of accused he recovered four knives and two iron rods. After receipt of relevant reports and after completion of investigation he laid the charge sheet against the accused for the offences as aforesaid. ( 4 ) IN order to substantiate the case of the prosecution 22 witnesses were examined and marked 22 exhibits besides M. Os. 1 to 7. Defense examined 7 witnesses and got marked exs. D-1 to D-7. ( 5 ) THE learned Sessions Judge after exhaustively considering the evidence on record came to the conclusion that the prosecution successfully established the guilt of the accused and sentenced them to imprisonment as aforesaid. ( 6 ) SRI C. Padmanabha Reddy, learned senior counsel appearing for the appellants submitted that the entire case of the prosecution rests on the evidence of P. Ws. 1 to 3-eyewitnesses, which suffers from material contradictions. Once A's alibi is accepted, the whole version of the prosecution is false. The version of P. W. 1 is that A-4 to A-6 beat him with iron rods. The same has not been mentioned in the earliest point of time in ex. P-1 report. 1 to 3-eyewitnesses, which suffers from material contradictions. Once A's alibi is accepted, the whole version of the prosecution is false. The version of P. W. 1 is that A-4 to A-6 beat him with iron rods. The same has not been mentioned in the earliest point of time in ex. P-1 report. In the absence of corresponding injuries noted by the doctor, participation of a-4 and A-6 in the offence and their beating p. W. 1 is doubtful. It is also the evidence of p. W. 1 that A-2 and A-3 attempted to stab him, and A-1 to A-3 and A-5 stabbed the deceased. The said fact has not been mentioned in ex. P-1 -report; whereas the version of P. W. 2 is that A-1 to A-7 attacked the deceased indiscriminately. As perthe version of P. W. 1, a-4 and A-6 did not attack the deceased. P. W. 3 is a chance witness and makes omnibus allegation against A-1 to A-7 about beating and stabbing. In the absence of any injuries attributable to A-4 and A-6 as per the dying declaration of the deceased they were falsely implicated and A-4 is entitled to acquittal. In view of the contradictions and the overtacts as spoken by P. Ws. 1 to 3, their evidence is unreliable to convict the accused. If one person is falsely implicated the whole case of the prosecution becomes false and placed reliance on M. P. Narendra v. G. Maruthi Prasad. The evidence of D. Ws. 1 to 7 proves that A-1 has not participated in the commission of offence on the relevant date between 10. 00 and 10. 30 p. m. Therefore, his participation in the offence is doubtful. The lower court ought to have accepted the alibi pleaded by him. ( 7 ) LEARNED Additional Public Prosecutor while sustaining the conviction and sentence recorded against the accused submitted that the lower court rightly rejected alibi pleaded by a-1 and the evidence of D. Ws. 1 to 7; the distance always plays a pivotal role in the case of plea of alib. He fairly conceded that a-1 's name is not mentioned in General Diary and in the dying declaration recorded by the magistrate the deceased has not stated that he is a pillion rider on the scooter of P. W. 1 and the attack of A-4 and A-6 on him. He fairly conceded that a-1 's name is not mentioned in General Diary and in the dying declaration recorded by the magistrate the deceased has not stated that he is a pillion rider on the scooter of P. W. 1 and the attack of A-4 and A-6 on him. ( 8 ) IN the light of the submissions, as referred to above, the point that arises for consideration in this appeal is: "whether the prosecution proved the guilty of the appellants beyond reasonable doubt for the offences they were convicted and conviction and sentence imposed on them is liable to be satisfied or modified". ( 9 ) AT the outset, it will be noted that p. Ws. 6, 7, 11, 12, 15 and 17 did not support the prosecution and they were declared hostile. The entire case of the prosecution rests on the evidence of P. Ws. 1 to 3 and dying declaration of the deceased-Ex. P-13 and statement of p. W. 1 - Ex. P-1 recorded by P. W. 20. The crime was registered upon Ex. P-1, wherein it was stated by P. W. 1, at the earliest point of time as under: "on 14-05-1996 orders were received from the Municipal Chair person suspending the deceased. Evening at 6'0 clock himself and the deceased together went to the Nellore Municipal office on his scooter; as the commissioner was not available they met the municipal executive engineer -Rama Subba Reddy and talked with him about the suspension order. By that time a-1 - Municipal Councilor of Harijanawada, 16th ward staying there and saw both of them. Thereafter, they went to Auto nagar where his lorry was under repair. After that work they went to Minister's house at Balaji Nagar; from there they both reached Harijanawada. He was driving the scooter and the deceased was pillion rider. When they reached dada Sweet Stall situated at Muthukurusarvepalli canal bund way, it was 9. 30 p. m. and when they were proceeding to harijanawada on their scooter, A-1, A-2, a-5, A-3, A-6 and A-4 who are in possession of knives and iron rods all of a sudden attacked the scooter. They beat the deceased indiscriminately with the weapons in their hands and stabbed him. With the said blows deceased fell down unconsciously, blood was oozing from his stomach portion. Meanwhile, a-2 stabbed on his ieft hand. They beat the deceased indiscriminately with the weapons in their hands and stabbed him. With the said blows deceased fell down unconsciously, blood was oozing from his stomach portion. Meanwhile, a-2 stabbed on his ieft hand. Having scared off, he ran towards P. W. D. office and he was chased by the accused for some distance. He escaped and fled away. Earlier in the month of November, 1995 Patrangi Velongini Raja was murdered and in that case, persons mentioned above are all accused, himself and the deceased were happened to be witnesses". ( 10 ) P. W. 1 in his evidence deposed that when they reach sweet stall center A-4 and a-6 fell upon them armed with iron rods. A-4 beat with iron rod on his left forearm and A-6 beat on his right forearm. Therefore, he lost control over the vehicle and fell down on the left side and the deceased fell on the right side of the road. Immediately A-1, A-2, A-3a-5 stabbed the deceased indiscriminately with knives. A-2 tried to stab him on his stomach but it missed damaging his clothes; then he ran away towards P. W. D. office. Some of the accused chased him raising cries. Then he entered into P. W. D. office; after some time some policemen came there. He went to the scene of offence running; he found there one head Constable and constable of IV Town police station, where he was informed that the deceased was shifted to the government Head quarters Hospital, Nellore. The police took him to the police station in their jeep. After reaching the police station he got heart pain. Therefore, he was immediately taken to the government Head Quarters Hospital, Nellore for necessary treatment, where he found the deceased with heavy bleeding on a cot by the side of his cot. Half an hour later he got recovered and came out side. The Head constable of Casualty Medical Ward recorded his statement about the incident-Ex. P-1 and police people left the hospital. As the condition of the deceased was precarious, nobody was allowed to see him in the hospital. At about 3 p. m. the deceased was shifted to the Apollo hospital, Madras for further treatment. Two days priorto the incident the deceased received a letter from the Nellore Municipality intimating that he was dismissed from service. He went to Nellore Municipality about the same aspect. At about 3 p. m. the deceased was shifted to the Apollo hospital, Madras for further treatment. Two days priorto the incident the deceased received a letter from the Nellore Municipality intimating that he was dismissed from service. He went to Nellore Municipality about the same aspect. They talked with one Rama Subba Reddy about the matter. The first accused was there while talking to him. Then, himself and the deceased proceeded to Autonagar, as some repairs were to be effected to his lorry. From there they proceeded to the house of Minister- ramesh Reddy who belongs to Telugu Desam party and Utukuru Admurthy and the 1st accused happened to be Congress Party. In 1995 Nellore Municipal Elections Patrangi kannaiah contested from 16th ward for the councilor post on behalf of Telugu Desam party. The 1st accused contested for the same post and won the elections. From then onwards ill feelings were developed. On 17/18-05-1996 the deceased last his breath in Apollo Hospital, madras; P. W. 2 informed about the said fact; then he went to IV Town police station and informed about the same. He saw A-1 at 6 p. m. in the Municipal Office on 14-05-1996, but he does not know whether he happened to be there from 4. 30 p. m. to 10. 30 p. m. in view of the Water Committee Meeting. A-4 and a-6 gave blows with iron rods measuring one inch in width and two feet in length. He denied the suggestion that himself and the deceased were not going on scooter at the time of the alleged incident and some unknown persons caused injuries to the deceased. He also denied the suggestion that he did not state at the time of recording Ex. P-1 - statement that a-4 and A-6 beat him on his hands with iron rods and caused injuries. He denied the suggestion that he instigated the deceased to give false dying declaration threatening that unless it was so given, he would not take him to Apollo Hospital, Madras and bear necessary expenditure. He himself got small injury to left hand to convince that he actually witnessed the incident. On 14-05-1996 he went to the police station at 9. 45 p. m. and at 11 p. m. on the same day Ex. P-1 - statement was recorded by the police. He himself got small injury to left hand to convince that he actually witnessed the incident. On 14-05-1996 he went to the police station at 9. 45 p. m. and at 11 p. m. on the same day Ex. P-1 - statement was recorded by the police. ( 11 ) P. W. 2 who is another eyewitness to the incident deposed that he saw P. W. 1 and the deceased going on scooterto their village on 14-05-1996 at about 9. 30 p. m. driven by p. W. 1. He heard a loud sound from Dada Mitai stall. He found the scooter of P. W. 1 fallen on the road and also found P. W. 1 jumped to the left side of the scooter and the deceased fallen to the right side of the scooter. Then he saw a-1, A-2, A-3, A-5, A-7 armed with knives and a-4 and A-6 armed with rods stabbed and beat the deceased indiscriminately. He saw A-2 tried to stab on the stomach of P. W. 1 but he escaped. A-3 stabbed P. W. 1 with a knife on the left upper arm (No injury as per the wound certificate issued by the doctor ). Then, the above said accused chased P. W. 1 upto Canal bridge and later they returned to the place of occurrence. While they were returning, the deceased got up and proceeded into sweet stall but fell down. Accused ran away towards south through the by-pass road. He went to the deceased and observed him in a pool of blood with bleeding injuries. At that time P. W. 3 also came there. Himself and P. W. 3 took the deceased to the Government Hospital, Nellore by an auto. While the doctors treating the deceased and P. W. 1, three policemen came there. Then P. W. 1 was taken inside for medical treatment in respect of injuries. The deceased was referred to the Apollo Hospital, Madras for better treatment. In the cross examination he admitted that there are two criminal cases pending against him and he did not remember whether he stated to the police that the deceased ran into the sweet stall as in ex. D-2. He admitted that the deceased is his kinsmen. ( 12 ) P. W. 3 who is another eyewitness to the incident stated that on the date of incident at about 9. D-2. He admitted that the deceased is his kinsmen. ( 12 ) P. W. 3 who is another eyewitness to the incident stated that on the date of incident at about 9. 30 p. m. he was returning from autonagar in a cycle to go to his village. P. W. 1 and the deceased came in a scooter behind him and crossed on Sarvepalli Bridge and went upto a distance of 20 to 30 feet from the bridge and reached Dada Mitai shop. Then he found A-1, A-2, A-3, A-5, A-7 and A-4 and a-6 attacking P. W. 1 scooter. P. W. 1 and the deceased fell down; immediately P. W. 1 got up. Then A-1, A-2, A-3, A-5, A-7, A-4 and a-6 stabbed and beat the deceased with knives and rods and caused bleed injuries. A-2 tried to stab P. W. 1 on his stomach but it missed. A-3 stabbed with a knife on the left upper arm of P. W. 1; then A-4 and A-6 beat with iron rods against P. W. 1, who got afraid and ran towards P. W. D. office. Himself and p. W. 2 shifted the deceased to the government hospital, Nellore in an auto. Later during the same night police examined him. Some time after they went to the Hospital, P. W. 1 came along with some policemen. He admitted in the cross-examination that there are criminal cases pending against him before the magistrate Court along with P. W. 1 and he is an accused therein. ( 13 ) P. W. 4 is a photographer who took photographs of the scene of offence and exs. P-3a to P-3c are the photos along with negatives. P. W. 5 is the owner of Dada Mitai shop at Haranathapuram, Nellore. His out-house is some distance from the shop. On the date of incident some passers-by came to her house and informed that one person was lying with injuries in the verandah of their shop. She went to the shop and finds a person in a poor of blood; she lit a match stick and also pramida. Some time later another person came and informed that injured belongs to his village and left the place stating that he will bring his village people. (In those circumstances, P. W. 1 witnessing the incident is doubtful ). P. Ws. Some time later another person came and informed that injured belongs to his village and left the place stating that he will bring his village people. (In those circumstances, P. W. 1 witnessing the incident is doubtful ). P. Ws. 6 to 8, 11, 12, 15 and 17 turned hostile and did not support the case of the prosecution. P. W. 9 is the signatory to ex. P-7 - scene of offence Mahazarnama. P. W. 10 is the inquest panch to Ex. P-8 - inquest panchanama. ( 14 ) P. W. 13, the doctor who examined p. W. 1 found the following two injuries: 1. Small incise wound 2 inch into skin deep on the back of the lower third of left arm. 2. Abrasion on the back of the left forearm. He issued Ex. P-12-wound certificate opining that both injuries are simple in nature and would have been caused by means of sharp edged objects within six hours prior to the examination. ( 15 ) P. W. 14 is the Civil Assistant Surgeon, government Head Quarters Hospital, Nellore speaks that at 12. 40 a. m. the II Additional judicial Magistrate of First Class, Nellore came and recorded the dying declaration of the deceased. He was present through out the dying declaration. Before recording the dying declaration he examined the patient and certified that he was in good condition to give statement and made endorsement accordingly. After competition of dying declaration once again he endorsed that the patient was in conscious and coherent state during that time. ( 16 ) P. W. 16 is the Constable working in IV town police station, Nellore who brought the dead body of the deceased from Apollo hospital, Madras to the Government Hospital, nellore for postmortem examination. ( 17 ) P. W. 18, the II Additional Judicial magistrate of I Class, Nellore deposed that on 15-05-1996 at about 0. 10 a. m. he received an intimation from the government Hospital, nellore for recording dying declaration of the deceased under Ex. P-15. He reached the hospital at about 0. 25 hours. After putting some preliminary questions to ascertain whether the deceased was in fit condition to give dying declaration he satisfied that the deceased was in a fit condition and after obtaining endorsement from the doctor to that effect he recorded the dying declaration- ex. P-13 which was closed at 0. P-15. He reached the hospital at about 0. 25 hours. After putting some preliminary questions to ascertain whether the deceased was in fit condition to give dying declaration he satisfied that the deceased was in a fit condition and after obtaining endorsement from the doctor to that effect he recorded the dying declaration- ex. P-13 which was closed at 0. 45 a. m. In the cross-examination he stated that as per the endorsement made in Ex. P-15, deceased received a stab injury from a known person at haranathapuram near Naidu Hostel, Nellore. ( 18 ) P. W. 19, the doctor who conducted postmortem examination over the dead body of the deceased found the following injuries. External injuries: 1. An incised wound over right side of neck 3 x 2 x 0. 5 cm. Margins are clear. 2. an incised wound over mid occipital parietal region 4 x 2 x 1 cm margins are clear. 3. An oblique stab wound near right axilla 3 x 2. 1 cm. Outer end is acute, inner border is obtused. 4. Another stab wound 5 cms. Below the previous wound No. 3 measuring 3 x 2 x 1 dm outer end is acute, inner border is obtused. 5. A stab wound over right hypochondria at mid clavicular line measuring 3 x 3 cm x cavity deep; margins are clear; outer end is acute and medial end is obtused. It entered into the right lobe of liver by 2 cm depth which is found sutured. 6. An incised wound over middle of front of right which 6 x 2 x 1 cm margins are clear. 7. an incised wound over right superior iliac spine 3 x 2 x 1 cm margins are clear. 8. A stab wound over medial border of right scapul 3 x 2 x 1 cm outer end is acute and medial end is obtused; margins are clear. 9. A stab wound over mid spinal region at the level of 4th and 5th lumbar vertebra measuring 3 x 2 x 1. 5 cm margins are clean; outer end is obtuse and medial end is acute. 10. Cut fracture of posterior aspect of 7th rib on left side. 11. A sutured wound over mid abdominal region measuring 25 cms. In length. Margins are clean. Internal Injuries: 12. Sutural evidence for right transverse hemicoloneoctomy. 5 cm margins are clean; outer end is obtuse and medial end is acute. 10. Cut fracture of posterior aspect of 7th rib on left side. 11. A sutured wound over mid abdominal region measuring 25 cms. In length. Margins are clean. Internal Injuries: 12. Sutural evidence for right transverse hemicoloneoctomy. Closure of hepatic flexure perforation, ileo sutured transverse colon an abstemious and right hepatic lobe. All the above injuries are antemortem in nature. Heart: All chambers contain fluid blood. Coronaries patent. Lungs: Cut section; congested. Hyoid Bone : In tack. Stomach: Empty. Mucosa-nil abnorla. Bladder: In tack. Brain: Cut section: contested. He opined that the deceased would appearto have died of complication of multiple stab injuries. Injuries 1 to 10 mentioned in postmortem examination are caused by single edged weapon. Ex. P-16 is the postmortem certificate issued by him. ( 19 ) P. W. 20, who was the Head Constable working in IV Town police station, Nellore at the relevant point of time deposed that on receiving phone message that there was a ghalata near Muthukuru Gate, he left the police station along with P. C. 1699, reached the scene of offence, noticed one scooter on the road center and further noticed blood stains on the road where the scooter was lying down. At a distance to the southern side of the above place there is a sweet meet stall and noticed blood stains in the shop. Meanwhile, p. W. 1 came to the place of incident with bleeding injuries on his left hand and had and complained chest pain and requested him to take hospital. Then he admitted P. W. 1 through a medical memo and found the deceased in the same hospital with injuries in unconscious stage. P. W. 1 disclosed him the identity of the deceased and stated that he also received injuries along with the deceased. He recorded the statement of P. W. 1 and obtained his signature in the presence of duty medical officer and returned to IV Town Police Station and handed over the said statement to the sub-Inspector of Police - P. W. 21. In the cross-examination he stated that he do not remember whether he made any entry in the General diary in connection with crime but he took medical memo book to the hospital to admit p. W. 1 in the hospital. In the cross-examination he stated that he do not remember whether he made any entry in the General diary in connection with crime but he took medical memo book to the hospital to admit p. W. 1 in the hospital. He went to the police station to bring medical memo book from the scene of offence in an auto and got down from the auto went inside police station, came back with medical memo book and went to the Head quarters Hospital, Nellore. P. W. 1 did not get down from the auto at police station. He went to the scene of offence on the next day and seized the scooter. (Whereas P. W. 1 stated police shifted him to the IV Town Police station by their jeep and when he got heart pain at the police station he was shifted to the hospital for necessary treatment ). ( 20 ) THE Sub-Inspector of Police who registered the case and investigated into the crime was examined as P. W. 21. He deposed that while he was on Bandobhast duty at government Old Hospital, Nellore in connection with fire accident, he received V. H. M. set information from police control room; thereupon he rushed to the IV town Police Station at 1. 00 a. m. on 15-05-1996. P. W. 20 who was present in the police station handed over Ex. P-1- report. On which basis he registered a case in cr. No. 57/1996 and took up investigation; visited the Government Hospital where he came to know that the deceased person was shifted to Apollo Hospital, Madras for better treatment; examined P. Ws. 1 to 3 and recorded their statements and went to the police station. On 15-05-1996 at 7. 30 a. m. he inspected the scene in the presence of P. W. 9 and another; secured the presence of P. Ws. 5, 6, 12, 17 and recorded their statements; got the scene of offence photographed by P. W. 4; prepared rough sketch and scene of observation report. On 18-05-1996 P. W. 1 presented a report stating that he received a message from P. W. 2 that the deceased while undergoing treatment in Apollo Hospital, Madras succumbed to injuries; then he altered section of law. In the cross-examination he stated that he has not received any alibi petition during the course of investigation, as pleaded by A-1. On 18-05-1996 P. W. 1 presented a report stating that he received a message from P. W. 2 that the deceased while undergoing treatment in Apollo Hospital, Madras succumbed to injuries; then he altered section of law. In the cross-examination he stated that he has not received any alibi petition during the course of investigation, as pleaded by A-1. He denied the suggestion that S. Chandra Mohan Reddy influenced him to file a false case against the accused. He has not recorded the statement of P. W. 20 to ascertain the delay in recording ex. P-1. He has not examined R. W. 1 after receipt of dying declaration. He admitted that it is not specifically stated in Ex. P-1 about a-4 and A-6 beating P. W. 1 with rods on his hands. After cross-examination P. W. 21 was re-called for further chief examination, where he stated that he seized M. O. 7 - scooter under a cover of panchanama, as it was available in the scene of offence, handed over to P. W. 1 and obtained a receipt from him under Ex. P-20. ( 21 ) P. W. 22, the Circle Inspector of Police who took over further investigation in the case deposed that he held inquest over the dead body of the deceased; arrested the accused in the presence of mediators-K. Sreenivasulu reddy and Sk. Ahamed Basha- P. W. 15 and recorded their confessional statements and seized four knives and two iron rods - M. Os. 1 to 6. In the cross-examination he stated that alibi petition said to have been filed by A-1 before the Superintendent of Police was not in his C. D. nor it was brought to his notice. ( 22 ) A-1 examined D. Ws. 1 to 7 to prove the alibi pleaded by him. ( 23 ) D. W-1 who is working as Junior assistant in Nellore Municipality speaks about convening of Water Committee Meeting and obtaining signatures of members who attended the meeting at page. 26 of Exs. D-4 and A-5, which contains the signature of A-1. The resolution passed by the Water Committee was marked as Ex. D-6. the meeting was started at 4. 50 p. m. and ended at about 10. 00 p. m. Besides A-1 all the Water Committee members signed on Ex. D-5. 26 of Exs. D-4 and A-5, which contains the signature of A-1. The resolution passed by the Water Committee was marked as Ex. D-6. the meeting was started at 4. 50 p. m. and ended at about 10. 00 p. m. Besides A-1 all the Water Committee members signed on Ex. D-5. A-1 was present in the meeting throughout and there was no practice to note down the time of end of the meeting. On the next day he noticed a news item in the newspapers that A-1 was involved in a criminal case. In the cross-examination conducted by Additional Public Prosecutor he stated that Ex. D-4 book does not show about the election or nomination of the members of water Committee and he cannot say on perusing Exs. D-5 and D-7 at what time the water Committee Meeting was completed. He further admitted some Councilors or members of Sub-Committees would leave the meeting in the middle to go and meet the ministers or any other official work or even for personal work. He cannot say at what time the meeting was ended. ( 24 ) D. W. 2, the Assistant Engineer working in Nellore Municipality deposed that Water committee Meeting started at 4. 45 p. m. and concluded at 10. 30 p. m. He was present in the meeting throughout and signed in the committee Register evidencing that he has attended the meeting. Ex. D-5 at page No. 26 of book Ex. D-4 contains his signature. On the next day of the meeting when there was discussion about the incident, he told that A-1 was in the meeting with them upto 10. 30 p. m. ( 25 ) D. W-3 a practicing advocate who attended the Water Committee Meeting corroborated the evidence of D. W. 2 about commencement of the meeting at 4. 30 p. m. and concluded at 10. 30 p. m. He was present in the meeting all the while and in the middle he tame out to meet the officials and to receive the petitions. A-1 was also present in the meeting throughout and he discussed with him. ( 26 ) D. W-4, who was elected s Councilorof nellore Municipality on behalf of Telugu Desam party, speaks about the commencement and conclusion of the meeting and A-1 's presence in the meeting throughout. A-1 was also present in the meeting throughout and he discussed with him. ( 26 ) D. W-4, who was elected s Councilorof nellore Municipality on behalf of Telugu Desam party, speaks about the commencement and conclusion of the meeting and A-1 's presence in the meeting throughout. ( 27 ) D. W-5 who was acting as Secretary of b. J. P. party, Nellore District Unit and elected as B. J. P. nominee also speaks about holding of Water committee Meeting on 14-05-1996. In the cross-examination he admitted that all the dates mentioned in page No. 10 in ex. D-4 are correct. ( 28 ) D. W-6 who is the President of Private schools Association and non-practicing advocate speaks about holding of Water committee Meeting on 14-05-1996. ( 29 ) D. W-7 who was acting as Secretary and Correspondent of V. R. Educational institute and Sri Venugopala Swamy College, nellore deposed that Ex. D-4 is the Minutes of the Water Committee Meeting held on 14-05-1996. At page No. 26 of Ex. D-5 contains the signatures of three Assistant Engineers, their Councilors and Water Committee members. In Ex. D-7 there is Agenda of Water committee Meeting, which contains his signature. In page No. 427 his initials are contained. In the cross-examination by the public prosecutor, he denied the suggestion that Ex. D-4 book was prepared with the assistance of A-1 in order to help him in the case. To a question put "when there is a Water committee according to him, what is the necessity to form another Water Committee on 28-05-1996" he answered the Committee was formed not exclusively as Water committee, but to look after drains, lights, roads and other items. ( 30 ) FROM the narrative evidence, as referred to above, the lower court felt that the evidence of P. Ws. 2 and 3 cannot be discarded on the ground that P. W. 2 is the agnate of the deceased and P. W. 3 is related to P. W. 1. When they are passing through the road in their usual way, they witnessed the occurrence, they are natural witnesses and they are not planted witnesses. Ex. P-1 is attacked on the ground that it is a fabricated document. If ex. P-1 is fabricated after due deliberations at leisure, the names of P. Ws. When they are passing through the road in their usual way, they witnessed the occurrence, they are natural witnesses and they are not planted witnesses. Ex. P-1 is attacked on the ground that it is a fabricated document. If ex. P-1 is fabricated after due deliberations at leisure, the names of P. Ws. 2 and 3 must have been mentioned in the said document and non-mentioning of their names would show it genuineness. Their evidence cannot be discarded or thrown out on the mere ground that their names do not find in the initial document. Though the evidence of P. Ws. 1 and 2 is not in a high standard or high quality but it is trustworthy. ( 31 ) P. W. 1 is the correct person to explain how the accused attacked them while they were going on scooter. In Ex. P-12 -wound certificate it is mentioned that injury No. 1 is a small incise wound inch into skin deep on the back of the lower third of left arm and injury no. 2 is abrasion on the back of the left forearm and no injuries on his right side said to have been caused with iron rods by A-4 and a-6. The learned Sessions Judge accepted that there is no reference in Ex. P-13 that P. W. 1 and the deceased went to the Municipal Office, from there to Autonagar, then to the house of the minister and then they went on M. O. 7 - scooter. By applying the ratio laid down by this court in Public Prosecutor, High Court of andhra Pradesh, Hyderabad v. Bonguru Jan. The learned Sessions Judge held that mere non-mention of the deceased in Ex. P-13 - dying declaration about his going along with p. W. 1 on M. O. 7-scooter is not fatal to the case of the prosecution and the evidence of p. W. 1 probablises his presence along with the deceased at the time of attack by the accused. The injuries were inflicted on the deceased on 14-05-1996 and the postmortem examination was conducted on 19-05-1996 at 10. 15 p. m. If at all there were injuries caused on the deceased with rods, they would definitely dissolved by the time of postmortem examination. The injuries were inflicted on the deceased on 14-05-1996 and the postmortem examination was conducted on 19-05-1996 at 10. 15 p. m. If at all there were injuries caused on the deceased with rods, they would definitely dissolved by the time of postmortem examination. The evidence of P. W. 1 supported the evidence of P. W. 2 and he told that he saw the deceased and P. W. 1 going on a scooterto the village; whereas P. W. 3 stated that while he was returning from Autonagar on his cycle to the village he found the deceased and p. W. 1 came on scooter and crossed him and went upto 20 to 30 feet from the bridge; where they reached Dada Mitai Shop, A-1 to A-7 attacked the scooter of P. W. 1. His evidence is also corroborated with the evidence of P. W. 1 with regard to A-1 to A-7 attacking the deceased and P. W. 1. Therefore, the prosecution is able to bring home the guilt of the accused beyond reasonable doubt and accordingly convicted them for the charges, aforementioned. ( 32 ) IF the prosecution evidence is accepted in to, the following material contradictions emerge: 1. If really P. W. 1 is an injured eyewitness to the incident, his statement recorded under Ex. P-1 does not disclose participation of A-4 and a-6 in attacking the deceased with iron rods and participation of A-7 to A-9 in the commission of offence. 2. The dying declaration of the deceased does not disclose that he was returning to their village on the scooter of P. W. 1 as pillion rider and participation of A-6 in the offence. 3. The evidence of P. W. 2 discloses that p. W. 1 jumped to the left side of the scooter and A-1, A-2, A-3, A-5 and a-7 armed with knives and A-4 and a-6 armed with iron rods stabbed the deceased indiscriminately; whereas participation of A-6 has not been stated by the deceased. A-3 stabbed with a knife on the left upper arm of p. W. 1; then A-4 and A-6 beat him with rods; whereas P. W. 3 states that a-1, A-2, A-3, A-5, A-7, A-4 and A-6 stabbed and beat the deceased with knives and rods and above seven accused chased P. W. 1, but has not stated about A-4 and A-6 beating p. W. 1 with iron rods. 4. 4. P. W. 5 who is an important witness to the case deposed that some passers- by came to their house and informed that one person was tying in the verandah of their shop; then she went to the shop and found a person in a pool of blood. There were no electrical bulbs. She lit a match stick and also pramida. Some time later another person of Akuthota Harijanawada came and informed that injured belongs to their village. He left the place stating that he would bring his village people. Some time later two persons came and lifted the victim in an auto. 5. The evidence of P. W. 1 goes to show that A-4 and A-6 gave blows against him with iron rods using good force and there are no corresponding injuries found by the doctor under Ex. P-12 wound certificate; whereas the Head constable-P. W. 20 admitted in the cross-examination that P. W. 1 and himself went to lv town Police Station from the scene of offence in an auto; he got down from the auto at the police station went inside and came back with medical memo book and went to Head Quarters Hospital, neliore and P. W. 1 was sitting in the auto all along. The evidence of P. W. 1 is contrary to the said effect; according to him, police shifted him in their jeep. 6. P. W. 21-Sub-Inspector of Police stated that he seized M. O. 7-scooter under a cover of Panchanama at the scene of offence; and not noticed any damages to the scooter and he has not sent the case property form to the court in respect of the scooter, since the same was not used in commission of offence and Ex. P-20 has been filed on the date of examination. e. 10-06-2003. After closure of evidence, p. W. 1 was recalled and examined on 03-07-2003. He stated that police took away the scooter from the scene of offence; he requested the Inspector of Police for return of the scooter, who directed to approach S.. of police and on his approaching the S.. , the scooter was delivered to him. In the cross-examination he stated that he took the scooter from the police not thorough the Court. Police did not ask him to produce the scooter when he was examined in the Court in the first instance. of police and on his approaching the S.. , the scooter was delivered to him. In the cross-examination he stated that he took the scooter from the police not thorough the Court. Police did not ask him to produce the scooter when he was examined in the Court in the first instance. ( 33 ) IN the light of the submissions and the evidence adduced by accused No. 1 to prove alibi, we are proposed to deal with the same first. The burden of accused is undoubtedly heavy in view of Section 103 of Evidence Act, which provides that burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. However, while weighing the prosecution case and the defense case, pittered against each other, if the balance tilts in favour of the accused, the prosecution would fall and the accused would be entitled to the benefit of that reasonable doubt which would emerge in the minds of the court. ( 34 ) EX. D-3 is the circular issued by the chair-person intimating the Water Committee members that meeting will be convened at 4. 30 hours which was served on A-1 under ex. D-2. Ex. D-5 is the relevant page of minutes dated 14-05-1996 at page 26 of Ex. D-4-minutes book which do not indicate that A-1, member, attended and signed. Ex. D-7 is the resolution resolved by the committee. Ex. D-8 is the resolution appointing the Councilors as committee Members which contains the signature of A-1 to the resolution passed on 28-04-1995. Ex. D-4-Munites book was summoned and marked through D. W. 1, who deposed that signatures of the Water committee members who attended the meeting were obtained by him at P-26 of ex. D-4 and the meeting was started at 4. 15 p. m. and ended at 10 P. M. A-1 was present throughout the meeting. After seeing Exs. D-5 and D-7 he cannot say at what time the meeting was completed and further admitted that some of the Councilors or members of sub-Committee will leave the meeting in the middle to go and meet the Ministers or any other official work or unofficial work. D. W. 2 also speaks about commencement of the meeting and its conclusion and also the presence of A-1 throughout. When he was confronted with Ex. D. W. 2 also speaks about commencement of the meeting and its conclusion and also the presence of A-1 throughout. When he was confronted with Ex. P-22 (A) with reference to resolution No. 1211 dated 28-05-1996 he admitted that at page-9 resolution does not contain any signatures of the persons including chairman. In the cross-examination he stated that he do not have any understanding about the constitution of the Water Committee in ex. P-22-A. D. W-3 also speaks about convening of the meeting and his discussion with A-1 who was present along with them in the meeting. D. W. 4, the Councilor of municipality who belongs to Telugu Desam party also speaks about committee meeting and he admitted that A-1 belongs to his caste. D. W. 5 who was elected as B. J. P. nominee speaks about meeting and in the cross-examination he admitted that all the dates mentioned in page 10 of Ex. D. 4 register are correct. D. W. 6 is a non-practicing advocate who acted as a whip of Congress party in neilore Municipality and also acted as panel chairman and Member in Statutory committees and non-Statutory Committees stated that A-1 attended the meeting on the said date which commenced at 5 p. m. but notice was issued that the meeting would start at 4. 30 p. m. and meeting was concluded between 10 and 10. 30 p. m. He and A-1 attended throughout the meeting. According to him, there was no resolution of the Council appointing him and other Councilors as members of the Water Committee prior to ex. P-22 (A ). D. W. 7 who is the Chairman and the sitting M. L. A. of Neilore Assembly constituency speaks about agenda of the water Committee at page 427 of Ex. D-7 which contains his initials. He denied the suggestion that Ex. D-4-book was prepared with the assistance of A-1 in order to help him. To a question "when there is already one Water committee what is the necessity to form another Water committee on 28-05-1996" his answer was: the Committee was formed not exclusively as Water Committee, but to look after lights and roads and other items. D-4-book was prepared with the assistance of A-1 in order to help him. To a question "when there is already one Water committee what is the necessity to form another Water committee on 28-05-1996" his answer was: the Committee was formed not exclusively as Water Committee, but to look after lights and roads and other items. There is no evidence to the effect that what is the distance between Municipal Office, where the committee was held, and the place where the offence has been committed, and it is impossible for one to reach the place of offence and participate in the commission of offence, which is crucial factor for proving alib. The authencity of the Minutes Book prepared and the signatures obtained have not been maintained in discharge of public function to accept the same to extend the benefit of doubt. In the absence of any statutory recognition tothe Water Committee constituted as official body resolutions etc. are only in the nature of private documents. Therefore, no sanctity can be attached to the said documents to establish the plea of alib. Further, as seen from the agenda and the deliberations it is highly improbablises that the meeting which started at 4. 30 P. M. continued till 10. 00 or 10. 30 p. m. ( 35 ) IT is well settled that plea of alibi must be proved with absolute certainty so as to completely exclude the presence of the person concerned at the time when and the place where the incident took place. Judged in the above context, we are in complete agreement with the learned Sessions Judge that the testimony of D. Ws. 1 to 7 and Exs. P-1 to P-22 for what it is worth does not substantiate the plea of alibi raised on behalf of A-1. ( 36 ) NOW, we will consider whether the prosecution proved the guilt of all the accused. ( 37 ) IF the dying declaration is accepted, a doubt will arise about the assailants attacking the deceased and P. W. 1 while they are going on the scooter of P. W. 1, and A-6 beating p. W. 1 with iron rods and remaining accused stabbing the deceased with knife, A-4 and a-6 beating the deceased with rods when the deceased was going to the house of Ramesh reddy. The evidence of P. W. 1 goes to show that after talking with Ramesh Reddy while they were proceeding to their village the assailants attacked them. In the absence of any corresponding injury inflicted on P. W. 1 by a-4 and A-6, the name A-6 also do not find place in the dying declaration, his participation in the offence is doubtful. Though the learned sessions Judge extended benefit of doubt to him, the case against him is abated. ( 38 ) IN Ex. P-1 -report, on which basis crime was registered, participation of A-1, A-2, A-3, a-4, and A-6 is only mentioned but do not disclose A-7 to A-9. The names of A-7 to A-9 only finds place in the dying declaration. When P. W. 1 was admitted in the hospital, he found the deceased with heavy bleeding by the side of his cot in the hospital. Half an hour after he recovered and his statement was recorded by the police. According to P. W. 1, on 14-05-1996 one Patrangi Velongini Raja belongstotheirgroup was murdered; deceased and himself are eyewitness to the said offence which is the motive for the accused to attack and eliminate them. ( 39 ) A suggestion was made to P. W. 1 that he instigated the deceased to give false dying declaration threatening him that unless it was so given P. W. 1 will not take him to Madras bearing the expenditure. It is an admitted fact that he happened to be a follower of Ramesh reddy and he is also a member of District committee of Telugu Desam and Secretary of the S. C. Cell of Telugu Desam Party and somireddy Chandra Mohan Reddy the present minister is their leader. The learned Sessions judge had commented that no suggestion to p. Ws. 2 and 3 that they tutored the deceased on the way to the hospital and in the hospital to give dying declaration involving all the accused. According to the evidenceof P. Ws. 2 and 3, seven persons participated in the commission of offence and as per the charge sheet one Rayapu Sidaaiah s/o Pitchaiah was also assailant and he died at Kalahasti due to ailment, and before laying charge sheet his name was deleted. In all, there are 10 members who participated in the crime. The presence of a-7 is spoken by the deceased in dying declaration. In all, there are 10 members who participated in the crime. The presence of a-7 is spoken by the deceased in dying declaration. In view of the same, no benefit of doubt can be extended to him. The evidence of p. Ws. 2 and 3 who are eyewitnesses does not go to show about participation of A-8 and A-9 in the commission of offence. P. W. 1 was adjacent to the deceased all the while but he has not mentioned the names of A-8 and A-9 in Ex. P-1 - report, so there is every possibility of implicating A-8 and A-9 in the commission of offence. When no injuries are found on the deceased, as attributed to A-8 and A-9, they are entitled to benefit of doubt. In view of the same, we extend benefit of doubt to A-4, A-8 and A-9 as their names were not find place in ex. P-1 -report and they are acquitted of all the charges. The convictions against the other accused. e. A-1 to A-3, A-5 and A-7 are confirmed. ( 40 ) THE Criminal Appeal is partly allowed, as indicated above. .