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CASE NO.:

Appeal (crl.) 517 of 2000

PETITIONER:

NALLABOTHU VENKAIAH

Vs.

RESPONDENT:

STATE OF ANDHRA PRADESH

DATE OF JUDGMENT: 20/08/2002

BENCH:

Y K SABHARWAL & H K SEMA.

JUDGMENT:

SEMA, J

The appellant along with 15 other accused was put to trial

before III Additional Sessions Judge, Guntur in Sessions Case No. 18

of 1994 to answer the following charges:

"Charge No. 1: - That you A1 to A16 at about 5.30 p.m.

on 13th day of October, 1992 on the highway between

Sattenapalli and Macherla in between 38/2 and 38/4

K.M. Stone after crossing Pakalapadu major canal,

formed into one group and were members of unlawful

assembly and did in prosecution of the common object of

such assembly viz., of killing the deceased person R.

Venkateswarlu son of China Bapaiah, 35 years, V.A.O.

of Tondapi village, and rioting and at that time you were

armed with deadly weapons like country made bombs,

axes, spears and knives which are dangerous in nature

and thereby committed an offence punishable under

section 148 of the Indian Penal Code and within my

cognizance;

Charge No. 2: - That you A-1 to A-16 at about the same

time, date and place and in the course of same transaction

as mentioned above; charged the deceased

R.Venkateswarlu son of China Bapaiah, 35 years, V.A.O.

of Tondapi village while he was coming on the motor

cycle and when he reached the spot, all of you emerged

from the bushes on either side of the road and that A10,

A12, A8 and A16 hurled bombs and when the deceased

fell down all of you surrounded him and that A-1, A-9

and A-10 of you axed on his head and that A-1 and A-2

of you cut the throat of the deceased with axe and long

knife and that A-4, A-6 and A-7 of you stabbed him with

spears on abdomen and lower portion and that A-5

stabbed him with spear on abdomen and that A-3 axed

him near right ear, A-8 stabbed with spear on his neck;

A-10 axed on the fore-head of him, A-11, A-12 and A-13

with spears and A-14 and A-16 with axes attacked the

deceased indiscriminately and A-15 with knife stabbed

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on his neck resulting in his death instantaneously and

thereby committed an offence punishable under section

302 read with 149 of the Indian Penal Code and within

my cognizance;

Charge No. 3: - That you A-8, A-10, A-12 and A-16 of

you at about the same time, date and place and in the

course of same transaction as mentioned above; hurled

countrymade bombs at the deceased R. Venkateswarlu in

order to kill him while in possession of the Explosive

Substances which are dangerous in nature which bombs

exploded and thereby committed an offence punishable

under sections 3 and 5 of Explosive Substances Act and

within my cognizance."

The substance of the above charges is that on 13th October,

1992 at about 5.30 p.m. accused 1-16 formed themselves into an

unlawful assembly and caused the death of one R. Venkateswarlu by

hurling bombs and causing bodily injuries by axes, knives and spears.

During the trial accused No. 2 expired and the trial against him

stood abated. After concluding of the trial, the trial judge found that

accused Nos. 1, 3, 4, 5, 7, 8 and 10 were guilty of the offence

punishable under Section 302 read with Section 149 I.P.C. They were

convicted and sentenced to suffer imprisonment for life and also to pay

a fine of Rs. 500/- and in default to suffer simple imprisonment for 3

months. They were further sentenced to undergo Rigorous

Imprisonment for one year each for the offence under Section 148

I.P.C. Both the sentences were ordered to run concurrently. The trial

judge, however, found that accused Nos. 8, 10, 12 and 16 were not

guilty of the offence under Sections 3 and 5 of the Explosive

Substances Act and they were, accordingly, acquitted under the said

charge. Rest of the accused, i.e. accused Nos. 6, 9 and 11 to 16 were

not found guilty of the offences, for which they were charged.

Being aggrieved, accused Nos. 1, 3 and 4 preferred Criminal

Appeal No. 555 of 1998 and accused Nos. 5, 7, 8 and 10 preferred

Criminal Appeal No. 556 of 1998 in the High Court.

The High Court, by the impugned order dated 31st January,

2000, reappreciated the evidence and acquitted accused Nos. 3 and 4 in

Crl. A. No. 555 of 1998 and their appeal was allowed to that extent.

The High Court also allowed Criminal Appeal No. 556 of 1998 and

acquitted accused Nos. 5, 7, 8 and 10 and their conviction and sentence

under the aforesaid sections of law was set aside. The High Court,

however, confirmed the conviction and sentence of accused No. 1, ( in

Crl.Appeal No.555 of 1998) under Section 302 I.P.C. (simpliciter).

The present appeal has been preferred by accused No. 1 (Nallabothu

Venkaiah), the appellant before us. No acquittal appeals have been

preferred by the State.

Before we advert to the points urged we may, at this stage,

point out that the High Court has acquitted accused Nos. 3, 4, 5, 7, 8

and 10 on the ground that P.Ws. 1-3, who were the eye-witnesses to

the occurrence were inimically disposed to the accused persons and

their evidence was unreliable. The High Court also disbelieved the

evidence of P.W.1 as he falsely deposed that his scooter bear the

registration No.APG 2253. While acquitting the aforesaid accused,

the High Court discarded the evidence of P.Ws. 1, 2 and 3 eye-

witnesses by rendering the following reasons:

"The investigation further discloses that the vehicle

bearing registration number APG 2253 is a tractor, which

was owned by the Commissioner of Guntur Municipality

and under these circumstances, we hold that whatever

evidence is given by P.W.1 is not in fairness. He went to

make involvement as many accused as he can do. The

evidence of P.W.1 discloses that there has been party

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faction in the village. He has been accused in number of

cases, which were filed by the deceased and his party.

To this effect a clear admission is given by him in the

cross-examination. Therefore, we are not prepared to

believe the evidence of P.W.1 as a whole.

P.W.2 is a pillion seat driver. He has stated in his

evidence, what all stated by P.W.1 but while making

individual involvement P.W.2 has stated accused Nos. 1,

10 and 9 hacked the deceased on his head with an axe. It

means P.W.2 did not involve accused Nos. 2 and 3 in the

incident. They came for the first time and hacked the

deceased but A1 appears to be common when the

deceased was attacked.

P.W.3 also claimed to be an eye-witness to the incident.

He has come with a different story altogether. P.W.3 was

a pillion seat driver of the motor cycle of the deceased.

He stated in his evidence when he had seen the accused

hurling bombs at him he requested the deceased to slow

down the scooter. Then he jumped from the motor cycle

and went towards bushes. He further stated that the

deceased went to some distance and fell down. Then A1

hacked the deceased on his neck with an axe and

thereafter, he made involvement of A2, A10, A5, A7, A6,

A3, A8 and A15.

This witness is also an accused in a number of cases

along with P.Ws. 1 and 2. Therefore, it is very much

clear from the evidence of P.Ws. 1, 2 and 3 that there has

been a party faction and cases after cases were filed

against each other.

Considering the evidence of important eye witnesses, we

are convinced that A1 was definitely present at the scene

of offence and the presence of the other accused is

doubtful because of inconsistency in the evidence of

P.Ws. 1 to 3. Therefore, we are of the considered view

that the other accused may be entitled for the benefit of

doubt."

The contention that the eye-witnesses P.Ws. 1, 2 and 3 were

inimically disposed to the accused has been rejected by the Trial

Court by assigning cogent reasons and considering the medical and

other corroborative evidence. The trial judge critically discussed the

evidence of eye-witnesses, namely, P.Ws. 1, 2 and 3 and also

analytical description of the part played by each of the accused in

causing murderous assault on the deceased and accepted the eye-

witnesses account as natural and reliable. P.W.1 stated in his

evidence that on the fateful day, he went to Sattenapalli to purchase

pesticides. After purchasing pesticides, he came to the centre, where

P.W.2 was also standing and both of them started on his scooter to go

to the village. When both of them were going on the scooter, they

saw the deceased and P.W.3 Muppalla Ramaiah at a medical shop.

When they were proceeding, P.W.3 and the deceased also followed

them. He stated that after passing Pakalapadu Major canal, they

suddenly heard the sounds of explosion of bombs. Then P.W.2,

pillion rider on the scooter of P.W.1, informed him that the bombs had

been hurled against the deceased and asked him to stop the scooter.

Then he stopped the scooter and saw P.W.3 Muppalla Ramaiah

jumping from the motor cycle of the deceased and running towards

northern side fields. P.W.3 was the pillion rider on the motor cycle of

the deceased. He further stated that at that time, the deceased - Rayidi

Venkateswarlu was driving the motor cycle slowly. Then accused

Nos. 8, 10, 12 and 16 hurled bombs. Accused Nos. 1 to 3 came

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opposite from southern side armed with axes and hacked on the head

of the deceased. Then the deceased fell down. Accused No. 1 hacked

the deceased on his neck. A.10 hacked on the head of the deceased

with an axe. A.2 hacked on the neck of the deceased with a knife.

A.4 to A.7 stabbed the deceased on his stomach with spears. P.W.1

further stated that A.1 and A.10 chased them and then they ran

towards the scooter and the accused ran away towards south. P.W.1

also stated categorically that at that time, he had a scooter bearing No.

A.P.G. 2253, which he took from one Narasimharao, but he did not

get it registered in his name. He admitted that himself, deceased and

P.Ws. 2 and 4 were figuring as accused for assault of a woman and

A.1 is one of the witnesses in that case. He also admitted that himself

and PWs. 2 to 4 are shown as accused in the murder case of

Rachakonda Chandraiah. It, therefore, clearly indicates party factions

in the village.

P.W.2 stated in his evidence that on the day of the incident, he

went to Sattenapalli to purchase a washer of his motor and in his

return, he met P.W.1 and both of them started on the scooter of P.W.1

to go to the village. He further stated that when they reached Five

Lamps Centre, they found deceased and P.W.3 purchasing medicines

and when they crossed Major canal, they heard explosion of bombs

and saw P.W.3 jumping from the motor cycle of the deceased. He

also stated that accused Nos. 8, 10, 12 and 16 hurled bombs. He

further stated that the deceased was proceeding on his motor cycle by

escaping the bombs. He categorically stated that accused Nos. 1, 9

and 10 hacked on the head of the deceased with axes. A.2 hacked on

the neck of the deceased with an axe. A.10 hacked on the fore-head

of the deceased with an axe. A.2 stabbed on the neck of the deceased

with a knife. A.4, A.5 and A.7 stabbed the deceased with spears on

his stomach. P.W.2 also stated that A.1 and A.10 chased them for a

distance. P.W.2 also admitted about the cases pending against him

along with other witnesses.

P.W.3, who accompanied the deceased on a motor cycle also

deposed about the specific overt acts played by each and every

accused. He repeated the stories narrated by P.Ws. 1 and 2, as we

have referred, earlier. He gave a graphic description of each and

every overt act of the accused in causing murderous assault on the

deceased. He was a pillion rider of the deceased motor-cycle.

Immediately after the bomb was hurled, he ran towards the bush and

watched the entire incident from there. The witnesses and the accused

are all from the same village.

Dr. G. Vijaya Saradhi, Civil Assistant Surgeon, Government

Hospital, Sattenapalli, P.W.9, conducted Post Mortem Examination of

the deceased and found the following injuries:

"1. An incised wound with clean cut edges and tapering both

ends of 6 x 0.5 cms. x bone deep over the back of the right

side of the occiput.

2. An incised wound of 5 x 0.5 cms. x bone deep over right

occipital region. Anterior to injury No. 1. Edges are well

defined and contused.

3. An incised wound 7 x 0.5 cms. x bone deep over right

parietal area extending to right temporal with tapered edges

well defined and clean cut.

4. A cut laceration 3 x 0.5 cms. of right ear pinna rediating to

neck.

5. An incised wound 4 x 1.5 cms. x bone deep over the middle

of fore-head edges inverted and contused.

6. A cut incised 5 x 1.5 cms. x bone deep above the left-eye-

brow, the edges dragged and contused.

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7. A cut incised wound (chopped) of 3 x 1.5 cms. irregular and

bone deep fractured the mandible over right side crushing

the structures underneath the root of the tongue with

distortion of the face.

8. A cut laceration 2.5 x 0.5 cms. below the left ear with left

side of the mouth.

9. A cut incision 5 x 2 cms. x muscle deep, the irregular and

inverted edges transversely present over the front of the neck

below the thyroid cartilage cutting the underneath neck

structures, fractured the Hyoid cut the trachea, larynx and

oesophagus.

10. A cut incised wound 5 x 2 cms. x muscle deep with ragged

edges just below the injury No. 9 cutting all the neck

structures underneath the injury.

11. A punctured wound, vertical, clean edges inverted of 2 x 1

cms. x cavity deep over the left side of the neck.

12. A cut laceration transversely present of 2 1/2 x 1 cm x

cavity deep over the medial end of left collar bone.

13. A stab injury 2.5 x 1 cm. x cavity deep over shaped over the

left laoin area anteriorely.

14. A laceration 15 x 5 cms. with charred edges and nail over

the lateral aspect of left side of the thorax.

15. A stab injury 3 x 0.5 cms. with inverted and ragged edges of

cavity deep over the left side of the spigastrium with

stomach area.

16. A stab wound 4 x 0.5 cms x cavity deep with intestines.

Seen out side above the umblicus transversely present.

17. A stab wound 3 x 0.5 cms. x cavity deep with clean and

inverted edges over the right side of the umbilcus.

Obliquely present.

18. Multiple abrasion with charred edges over the lateral aspect

of left upper arm. Fore arm of about 0.25 to 1.5 cms. x 0.25

x 1 cms.

19. Multiple abrasions red with charred edges over the lateral

aspecty of left thigh of 0.2 to 10 cms.

20. Multiple abrasions 0.5 x 1 cm x 0.2 to 1 cm. Over the lateral

aspect of left side of the abdomen.

21. A cut laceration 2 x 0.5 cms x 1 cm. over the right hand at

the root of the thumb."

The contention of the counsel for the accused that evidence of P.Ws. 1

to 3 (eye-witnesses) cannot be accepted as they are chance witnesses and

highly interested and P.Ws. 1 and 2 are also related to the deceased and that

they are inimically disposed to the accused has been rejected by the Trial

Court by assigning cogent reasons. The Trial Court has accepted the

evidence of P.Ws. 1 to 3 as natural, reliable and truthful. After scanning

their deposition with care and caution, the trial judge has held that

admittedly all the accused and the prosecution witnesses are from the same

village and there is a faction in the village between the parties for the

reasons that the deceased Rayidi Venkateswarlu, who was President of the

village, was selected as Sarpanch and later on 26.2.1992, he resigned from

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the Presidentship. Then, A.1, who was the Vice-President, assumed charge

as President of the Village and since the deceased was popular in the village

and became the Village Administrative Officer, the appellant was facing

difficulties in getting quorum in the village. P.Ws. 1, 2 and 3 also admitted

that there were criminal cases involving both the parties. In such a

situation, the trial judge held that it will be difficult to get unbiased and

independent witnesses and, therefore, the eye-witness account of P.Ws. 1 to

3 cannot be thrown out on account of they being interested witnesses, if

otherwise there is no infirmity in the depositions of P.Ws. 1 to 3 and their

statements are reliable and creditworthy. We accept the view taken by the

Trial Court as correct appreciation of the evidence of PWs 1 to 3, in the facts

and circumstances of the case.

The contention of the counsel for the accused that the evidence of

P.W.1 cannot be accepted as he gave false evidence with regard to the

registration number of his scooter has also been rejected by the Trial Court.

In his statement, P.W.-1 stated that he had a scooter and it bears the

registration No. A.P.G. 2253. It is the contention of the counsel that the

registration No. cited by the P.W.1 belongs to a tractor and not to a scooter

and therefore, the statement of P.W.1 that he is owning a scooter bearing

registration No. A.P.G. 2253 is false and his evidence is not reliable. The

High Court has erroneously accepted this submission. The factum of P.W.1

driving a scooter on that day has been proved by P.Ws. 2 and 3. It is

immaterial which registration number the scooter bears. In his cross-

examination, P.W.-1 stated that he took the scooter from Narasimharao and

he did not get it registered in his name. He also denied the suggestion that

he had no scooter. The incident had happened on 13.10.92 and the witness

was examined on 17.11.97 after a gap of almost five years. It must be

remembered that human memories are apt to blur with the passage of time,

more so, when P.W.2 stated that the scooter was not registered in his name

at that time.

We have already quoted the reasoning rendered by the High Court

acquitting accused Nos. 3, 4, 5, 7, 8 and 10. The aforesaid finding has been

rendered by the High Court without discussing the depositions of P.Ws. 1

to 3 and by a cryptic order. The witnesses are inimically disposed to the

accused alone would be no ground to throw away their otherwise reliable,

natural and credit worthy statement. The test, in such circumstances, as

correctly adopted by the Trial Court, is that if the witnesses are interested,

the same must be scrutinized with due care and caution in the light of the

medical evidence and other surrounding circumstances. Animosity is

double edged sword and it can cut both sides. It can be a ground for false

implication. It can also be a ground for assault. We are constrained to

deprecate the manner in which the High Court threw away the eye-witness

accounts of P.Ws. 1 to 3 on ground of animosity albeit without any

discussion.

The Trial Court found from the deposition of PWs that the village

Tondapi is a faction ridden village where criminal cases are instituted

involving both the prosecution and accused parties and it is difficult to

secure unbiased and independent witnesses and after thorough scrutiny

accepted the evidence of P.Ws 1-3 as truthful and reliable.

It must be borne in mind that criminal justice system must be

alive to the expectation of the people. The principle that no innocent man

should be punished is equally applicable that no guilty man should be

allowed to go unpunished. Wrong acquittal of the accused will send a

wrong signal to the society. Wrong acquittal has its chain reactions, the law

breakers would continue to break the law with impunity, people then would

lose confidence in criminal justice system and would tend to settle their

score on the street by exercising muscle power and if such situation is

allowed to happen, woe would be the Rule of Law. What is apparent from

the aforesaid discussion is that the acquittal of the accused recorded by the

High Court was clearly contrary to the evidence on record and on the basis

of mis-appreciation of eye witnesses account. It is unfortunate that acquittal

appeals are not before us.

Two questions of law are raised before us. Firstly, whether the

appellant could be convicted under Section 302 I.P.C. (simpliciter) without

aid of Section 149 I.P.C. in the absence of substantive charge under Section

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302 I.P.C.? Secondly, whether the appellant could be convicted under self

same evidence on the basis of which other accused are acquitted?

Mr. A. Subba Rao, learned counsel appearing for the appellant

submits that since no separate substantive charge has been framed against

the appellant under Section 302 I.P.C., the conviction of the appellant is

bad. This question has been decided in a catena of decisions of this Court.

In Subran and Ors. v. State of Kerala (1993) 3 SCC 722 (deciding

review petition No. 1394 of 1993) six accused were arraigned for offences

punishable under Sections 302, 324, 323, 341, 148 read with Section 149

I.P.C. Accused No. 1 Subran alone was convicted under section 302

IPC(simpliciter) by the Trial Court and confirmed by the High Court on

appeal. The three-Judge Bench of this Court reviewing its earlier judgment

substituted paragraphs 10 and 11 of the previous judgment as under:

"Appellant 1, Subran, had rightly not been charged for the

substantive offence of murder under Section 302 IPC. Subran,

appellant 1, was not attributed the fatal injury or identified as

the person who caused the fatal blow. According to the medical

evidence, none of the injuries allegedly caused by appellant-

Subran either individually or taken collectively with the other

injuries caused by him, were sufficient in the ordinary course of

nature to cause death of Suku. There is no material on the

record to show that the injuries inflicted by Subran, with the

chopper, were inflicted with the intention to cause death of

Suku. Under these circumstances, the conviction of the first

appellant, Subran, for an offence under Section 302 IPC

simpliciter was neither desirable nor appropriate. The High

Court, it appears, failed to consider the scope of clause (3) of

Section 300 IPC in its proper perspective. In the facts of the

present case, the intention to cause murder of Suku, deceased

could not be attributed to the said appellant as the medical

evidence also unmistakably shows that the injuries attributed to

him were not sufficient in the ordinary course of nature to cause

death of the deceased. Appellant 1 Subran, therefore, could not

have been convicted for the substantive offence under Section

302 IPC and his conviction for the said offence cannot be

sustained. That Suku died as a result of cumulative effect of all

the injuries inflicted on him by all the four appellants stands

established on the record. The question, therefore, arises what

offence did the four appellants commit?"

In Atmaram Zingaraji v. State of Maharashtra (1997) 7 SCC 41

nine persons were arraigned as accused before the trial court under Section

149/302/326 IPC. No other person, named or unnamed, alleged to have

participated in the crime. All the other 8 accused were acquitted by the High

Court. However, the appellant was convicted under Section 302 IPC with the

aid of Section 149. On appeal, this Court held:

"In either of the above situations therefore the sole convict can

be convicted under section 302 IPC (simpliciter) only on proof

of the fact that his individual act caused the death of the victim.

To put it differently, he would be liable for his own act only. In

the instant case, the evidence on record does not prove that the

injuries inflicted by the appellant alone caused the death; on the

contrary the evidence of the eyewitnesses and the evidence of

the doctor who held the post-mortem examination indicate that

the deceased sustained injuries by other weapons also and his

death was the outcome of all the injuries. The appellant,

therefore, would be guilty of the offence under Section 326 IPC

as he caused a grievous injury to the deceased with the aid of a

jambia (a sharp-cutting instrument)."

In Krishna Govind Patil v. State of Maharashtra 1964 (1) SCR

678 a four-Judge Bench of this Court has laid down that when four persons

are tried on a specific accusation that only they committed a murder in

furtherance of their common intention and three of them are acquitted, the

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fourth accused cannot be convicted with the aid of Section 34 IPC for the

effect of law would be that those who were with him did not conjointly act

with the fourth accused in committing the murder.

In Nethala Pothuraju and Ors. v. State of Andhra Pradesh (1992)

1 SCC 49 the appellant was called upon to face the trial along with other six

accused for offences under Sections 149, 141, 34 and 302 IPC. The trial

court convicted more than five persons under Section 302 r/w Section 149

IPC. The High Court acquitted some of the accused resulting in reducing the

number of the accused to less than five and thus rendered section 149

inapplicable. On appeal this Court, having regard to the murderous attack

by the appellant, as disclosed by the eye-witnesses and the number and

nature of injuries sustained, converted the conviction as one under Section

302 Section r/w Section 34 IPC.

In Marachalil Pakku and Anr. v. State of Madras AIR 1954 SC

648 seven accused were charged under Section 302 r/w Section 149 IPC.

The trial court convicted two appellants along with five others of having

constituted an unlawful assembly and committed murder and they were

convicted under Section 302 r/w Section 149 IPC. The High Court, on

appeal, gave benefit of doubt to five accused and acquitted them. In the

appeal before this Court, it was argued that the said five accused having

been acquitted and in the absence of a charge that five other unknown

persons constituted an unlawful assembly, the two appellants could not be

held members of the unlawful assembly which had the common object, the

three Judge Bench of this Court said:-

"We have not been able to understand how the High Court

could acquit these persons having held that the evidence of

P.Ws. 5 and 6 as to how Kannan was murdered by accused 1

and 2 stabbing him and the others holding him by his hands and

legs, was true. It also said that with regard to participation of

accused 3 to 7 they could not say that the prosecution evidence

was unreliable. On these findings, in our opinion, no scope was

left for introducing into the case the theory of the benefit of

doubt. We think that accused 3 to 7 were wrongfully acquitted.

Though their acquittal stands, that circumstance cannot affect

the conviction of the appellants under section 302 read with

section 149, I.P.C."

In Achhey Lal v. State of U.P. AIR 1978 SC 1233 as many as 15

named persons had taken part in the assault on the deceased. 14 accused had

been acquitted by the High Court but the conviction and sentences awarded

to the appellant by the Sessions Judge were upheld. This Court held that

there is no finding by the High Court that after acquittal of the accused the

unlawful assembly consisted of five persons or more, known or unknown,

identified or unidentified, the provisions of Sections 149 and 147 cannot be

invoked for convicting the sole accused as no individual act was assigned to

him.

Analytical reading of catena of decisions of this Court, the following

broad proposition of law clearly emerges: (a) the conviction under Section

302 simpliciter without aid of Section 149 is permissible if overt act is

attributed to the accused resulting in the fatal injury which is independently

sufficient in the ordinary course of nature to cause the death of the deceased

and is supported by medical evidence; (b) wrongful acquittal recorded by

the High Court, even if it stood, that circumstance would not impede the

conviction of the appellant under Section 302 r/w Section 149 I.P.C. (c)

charge under Section 302 with the aid of Section 149 could be converted

into one under Section 302 r/w Section 34 if the criminal act done by several

persons less than five in number in furtherance of common intention is

proved.

We have already held that accused Nos. 3, 4, 5, 7, 8 and 10 have been

wrongly acquitted by the High Court discarding the natural and reliable

evidence tendered by three eye-witnesses P.Ws. 1 to 3. If that is so, the

acquittal of accused Nos. 3, 4, 5, 7, 8 and 10 would not affect the conviction

of the appellant under Section 302 with the aid of Section 149 though their

acquittal stood because specific overt acts have been attributed to the

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appellant by eye-witnesses, corroborated by medical evidence, which are

independently sufficient in the ordinary course of nature to cause the death

of the deceased.

The consistent evidence of P.Ws. 1 to 3 is that after the bomb was

hurled at the deceased, the deceased was driving his motor-cycle slowly.

P.W.3, who was a pillion rider of the motor-cycle of the deceased, jumped

out of the motor-cycle, rushed to the bush and watched the whole incident

under the bush. He specifically stated that after the deceased fell down

accused No. 1 hacked axe blows on the neck of the deceased. The same is

the statement of P.W.-1, who was riding a scooter on the same road at that

particular time. The same is the statement of P.W.2. P.W.2 was a pillion

rider on the scooter of P.W.1. The witnesses and the accused are from the

same village and the incident had happened on 13th October, 1992 at about

5.30 p.m. There cannot be any scope of mistaken identity of the accused.

P.W.4 stated that he knew all the accused and the deceased. On the

day of the incident, while proceeding on his tractor on the Pakalapadu major

canal he saw all the accused armed with axes, spears and knives were going

on the road.

Dr. G. Vijaya Saradhi was examined as P.W.9. He conducted post

mortem examination of the deceased and found as many as 21 injuries, as

referred to in the earlier part of the judgment. Injury Nos. 7, 9 and 10 are

incise wounds. On internal examination, the doctor found, "neck shows

upper air passes were cut. Left castrotid vessels were cut, muscles were cut.

Haematoma present on left side of the neck. This corresponds to injuries 9

and 10." The doctor opined that "the patient would appear to have died of

hemorrhage and shock, and injuries to upper air passages, manor vessels,

and vital organs liver, kidney, resulting from multiple injuries."

From the overt acts attributed to the accused appellant by P.Ws. 1 to

3, corroborated by medical evidence, it is apparent that the appellant has

caused murderous assault resulting in the death of the deceased.

The next contention of Mr. Subba Rao, learned counsel for the

appellant that on the self same evidence, the other accused had been

acquitted and, therefore, the appellant could not have been convicted relying

upon the same evidence. This contention deserves to be rejected. Firstly,

because we have already held that the acquittal of the other accused,

rendered by the High Court, was wrong and based on misappreciation of

evidence. Secondly, as pointed out, eye-witness version is supported by the

medical evidence attributing specific overt acts to the appellant. The ocular

and medical evidence on record clearly establish the guilt of the appellant

beyond reasonable doubt for causing the death of the deceased.

For the reasons aforestated, there is no merit in this appeal and it is

accordingly dismissed.