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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2047 OF 2008

Vutukuru Lakshmaiah ... Appellant

Versus

State of Andhra Pradesh     ... Respondent

WITH

CRIMINAL APPEAL NO. 2052 OF 2008

CRIMINAL APPEAL NO. 205O OF 2008

J U D G M E N T

Dipak Misra, J.

The present appeals are directed against  the judgment

and  order  dated  22.03.2007  passed  by  the  High  Court  of

Andhra Pradesh in Criminal Appeal No. 517 of 2005, whereby

it  has  confirmed  the  judgment  of  conviction  and  order  of

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sentence  passed  by  the  learned  Additional  Sessions  Judge,

Nellore in Sessions Case No. 365 of 1998 whereunder he had

found the appellants guilty of the offence under Sections 302

and 148 of the Indian Penal Code (IPC) and sentenced each of

them to suffer rigorous imprisonment for life on the first score

and imposed separate sentence under Section 148  IPC with

the default clause stipulating that all the sentences shall be

concurrent.  Be it stated, the High Court has acquitted three

of the convicted persons.

2. Filtering the unnecessary details, the prosecution case is

that  the deceased,  Patrangi  Ramanaiah,  was a supporter  of

the  Telugu  Desam  Party,  while  accused  Vutukuru

Lakshmaiah, A-1, was the Councilor for Ward No. 16 of Nellore

Municipality and belonged to the Congress Party. One Patrangi

Velongini Raja of Telugu Desam Party was allegedly murdered

by accused, A-1, and his brother and in the said prosecution

the deceased and PW-1 were witnesses.  

3. On  14.05.1996  about  9.30  p.m.,  Pamula  Ramanaiah,

PW-1,  and  the  deceased  were  travelling  on  their  scooter

towards  Akuthota  Harijanawada,  and  when  they  reached  a

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sweet  meat  shop,  Meriga  Yedukondalu,  A-4,  and  Utukuru

Seenaiah, A-6 (since deceased) attacked them as a result of

which, PW1, who was driving the scooter lost control of the

scooter and both of them fell down. As the prosecution story

proceeds,  Vutukuru Lakshmaiah,  A-1,   Rayapu Srinivasulu,

A-2, Rayapu Sivaiah, A-3, Meriga Ramaiah, A-5, and Meriga

Penchlaiah,  A-7,  stabbed  the  deceased  multiple  times  with

knives, while A-4 and A-6 beat him with iron rods. A-2 then

tried to stab PW-1 but missed.  Thereafter A-3 stabbed PW-1

with a knife on his left arm, but he managed to escape and hid

in the PWD office situated nearby.  

4. As  the  prosecution  case  further  unfurls,  Pantrangi

Venkateswarlu,  PW-2, and Ragutu Sreenivasulu,  PW-3, who

were  returning  from their  work  witnessed  the  incident  and

after  the  assailants  left  the  scene  of  crime,  they  took  the

deceased to the Government Head Quarters Hospital, Nellore.

Being  informed  about  the  incident,  the  police  immediately

reached the scene of incident where they found injured PW-1

who had returned to the scene of occurrence and took him to

the hospital, where Md. Kareemula, Head Constable, PW-20,

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recorded the statement of PW-1, Ex. P-1, and it was handed

over  to  G.  Srinivasa  Rao,  Sub-Inspector  of  Police,  PW-21.

Based on the statement, Crime No. 57 of 1996 U/s. 147, 148,

324,  307 r/w 149 IPC was registered and the  investigation

commenced.  The deceased was subsequently shifted to Apollo

Hospital,  Madras  for  better  treatment.   Meanwhile  the  II

Additional  Judicial  First  Class  Magistrate,  Nellore,  PW-18,

recorded the dying declaration of the deceased at the General

Head Quarter Hospital, which has been brought on record as

Ex. P-13. On 15.05.1996, PW-21, visited the scene of offence,

prepared  the  panchanama,  Ex.  P-7,  the  rough  sketch,  Ex.

P-18, and recorded statements of PWs 1, 2, 3, 5, 6, 8, 12, 17.

After  the  receipt  of  intimation  of  death  of  the  deceased  on

18.05.1996, there was alteration of the offence to Section 302

IPC and the investigation was taken over by K. Veera Reddy,

PW-22, the Inspector of police, who visited the Apollo hospital,

Madras and held inquest over the dead body of the deceased

in presence of G. Pulla Reddy, PW-18, and sent a requisition

to  Dr.  C.  Manohar,  PW-19,  Assistant  Professor,  Forensic

Medicine at Kilbank Medical College, Chennai for postmortem

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examination who carried out the autopsy over the dead body

of  the  deceased  on  18.05.1996 and  opined  vide  Ex.16,  the

postmortem  report,  that  the  cause  of  death  was  due  to

multiple  stab  injuries.   PW-22,  the  Investigating  Officer,

arrested A-2 to A-7 and A9 on 28.05.1996 and at the instance

of the arrested persons, except A-9, the investigating agency

recovered four knives and two iron rods.   After completion of

the  investigation,  the  chargesheet  was  placed  before  the

competent  court  and  eventually  the  matter  was  tried  by

learned Additional Sessions Judge.  The accused persons took

the plea of false implication and the A-1, additionally took the

plea of alibi.  

5. The principal witnesses are, Pamula Ramanaiah, PW-1,

Pantrangi Venkateswarlu, PW-2, Ragutu Sreenivasulu, PW-3,

II Additional Judicial First Class Magistrate, Nellore, PW-18,

and Dr. C. Manohar, PW-19.  The defence in support of its

plea, examined 7 witnesses i.e. DW-1 to DW-7.  The learned

trial  Judge, after appreciating the entire evidence, both oral

and documentary, on record, especially the evidence of PW-1

to PW-3, and the dying declaration, Ex.P-13, convicted A-1 to

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A-5 and A-7 to A-9 for the offences punishable under Sections

148  and  302  IPC  for  causing  death  of  deceased  Patrangi

Ramanaiah, convicted A-2 to A-4 for the offence punishable

under  Section  324 IPC and A5 for  the  offences  punishable

under Sections 324 read with 149 IPC for causing injuries to

PW-1.   

6. Being aggrieved by the judgment of the trial Court, all the

accused persons preferred Criminal  Appeal no. 517 of 2005

wherein the High Court, after re-appreciating the evidence in

entirety, affirmed the conviction and sentence passed by the

trial  court  in  respect  of  the  present  appellants  and  partly

allowed the appeal  thereby acquitting A4, A8 and A9 giving

them the benefit of doubt.

7. We have heard Mr. Nagendra Rai, learned senior counsel

for  the appellants and Ms. June Chaudhary, learned senior

counsel for the State.   

8. Criticizing the judgment of conviction, it is submitted by

Mr. Nagendra Rai,  learned senior counsel for the appellants

that  the  evidence  adduced  by  the  prosecution  witnesses

should have been discarded inasmuch as their testimony is

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replete with contradictions and as the occurrence had taken

place  during  the  night  about  9.30  p.m.  and  there  was  no

electric supply and hence, it could not have been possible on

the  part  of  the  witnesses  to  see  the  accused-appellants  by

lighting the earthen mud lamp with a match stick.  Learned

counsel  would  contend that  they are chance witnesses and

their  evidence really  do not  inspire  confidence and,  in  fact,

when  cautiously  scrutinized,  they  deserve  to  be  totally

discarded.  It is urged by him that the dying declaration, Ex.

P-13, does not inspire confidence inasmuch as the allegations

are omnibus in character and no specific overt acts have been

attributed to any of these appellants.  It is contended by him

that when the High Court has found that A-4, A-8 and A-9

have been falsely implicated, it would have been appropriate

on  the  part  of  the  High  Court  to  hold  that  the  present

appellants also had been falsely implicated in the case.  It is

canvassed by him that the appellant no. 1 was attending the

Water Committee meeting on the date of occurrence and the

same had been established by bringing acceptable evidence on

record  by citing witnesses and also by filing documents Ex.

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D-3  to  D-8  which  are  documents  maintained  by  Nellore

Municipality.  It is his further submission that learned trial

Judge as well as the High Court has not given any justifiable

reason to disregard the evidence of DW-1 to DW-7.  It is also

urged  by  him  that  the  appellants  could  not  have  been

convicted  in  aid  of  Section  149  IPC  as  the  charge  framed

against  them was  simplicitor  Section  302  IPC;  and  even  if

Section 149 IPC can be resorted to, in the absence of specific

charge, the Court is required to see the circumstances, what is

the nature of offence committed.  Alternatively, it is submitted

by him that even if the assault on the deceased is accepted,

regard being had to the absence of intention and the nature of

injury suffered by the deceased and death having taken place

after  three  days,  they  may  be  liable  for  conviction  under

Section 304 Part II IPC and not under Section 302 IPC.  To

buttress the said submission, he has drawn inspiration from

decisions in State of Orissa v. Dibakar Naik1,  Sunder Lal

1  (2002) 5 SCC 323

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v. State of Rajasthan2 and  Marimuthu v. State of Tamil

Nadu3.   

9. Ms. June Chaudhary, learned senior counsel appearing

for State,  resisting the aforesaid arguments,  contended that

there is no reason to discard the dying declaration as there is

no infirmity in the same.  It is further urged by her that the

testimony of all the witnesses are credible and the contention

that PW-2 and PW-3 are chance witnesses does not deserve

any acceptance.  Learned senior counsel for the State would

further submit that though the charge has not been framed

under Section 149 of the IPC, there is no bar, regard being had

to the evidence on record, to convict the accused-appellants

with the aid of the said provision.  It is canvassed by her that

it is not a case for conversion of the offence, for it is squarely a

case under Section 302 IPC and not under Section 304 Part I

or Part II of the IPC.  

10. First,  we  shall  advert  to  the  issue  of  non-framing  of

charge under Section 149 IPC.  While dealing with the said

2  (2007) 10 SCC 371 3  (2008) 3 SCC 205

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issue,  in  Willie  (William)  Slaney v.  State of  M.P.4 Vivian

Bose, J., observed that every reasonable presumption must be

made in favour of the accused person; he must be given the

benefit of every reasonable doubt.  The same broad principles

of  justice  and  fair  play  must  be  brought  to  bear  when

determining a matter of prejudice as in adjudging guilt.  The

learned Judge proceeded to state that all said and done, the

Court is required to see whether the accused had a fair trial,

whether  he knew what he was being tried for,  whether the

main  facts  sought  to  be  established  against  him  were

explained to him fairly and whether he was given a full and

fair chance to defend himself.  Thereafter, Bose, J. proceeded

to observe thus:-

“In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and  substantial  doubt  about  whether  he  was,  or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere; but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed the conviction must stand; also it will always be material to consider whether objection to

4  AIR 1956 SC 116

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the nature of the charge, or a total want of one, was taken at an early stage.  

If  it  was  not,  and  particularly  where  the accused is defended by counsel (Atta Mohammad v. King-Emperor5) it may in a given case be proper to conclude that the accused was satisfied and knew just what he was being tried for and knew what was being  alleged against  him and wanted  no  further particulars, provided it is always borne in mind that “no  serious  defect  in  the  mode  of  conducting  a criminal  trial  can  be  justified  or  cured  by  the consent  of  the  advocate  of  the  accused”  (Abdul Rahman v. King-Emperor6).  

But  these  are  matters  of  fact  which  will  be special to each different case and no conclusion on these questions of fact in any one case can ever be regarded as a precedent or a guide for a conclusion of fact in another, because the facts can never be alike  in  any  two  cases  “however”  alike  they  may seem. There is no such thing as a judicial precedent on  facts  though  counsel,  and  even  Judges,  are sometimes  prone  to  argue  and to  act  as  if  there were.”

Chandrasekhara  Aiyar,  J.,  in  his  concurring  opinion

stated thus:-

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

5  AIR 1930 PC 57 6  AIR 1927 PC 44

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After so stating, the learned Judge opined that generally

in cases of  omission to  frame a charge  is  not  per  se fatal.

Eventually, he ruled thus:-

“Sections 34, 114 and 149 of the Indian Penal Code provide for  criminal  liability  viewed from different angles  as  regards  actual  participants,  accessories and  men  actuated  by  a  common  object  or  a common intention; and the charge is a rolled-up one involving  the  direct  liability  and  the  constructive liability without  specifying  who  are  directly  liable and  who  are  sought  to  be  made  constructively liable.  

In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself,  and before  a conviction for  the  substantive offence, without a charge can be set aside, prejudice will have to be made out. In most of the cases of this  kind,  evidence  is  normally  given  from  the outset as to who was primarily responsible for the act  which  brought  about  the  offence  and  such evidence is of course relevant.”

11. After 1973 Code came into existence, two-Judge Bench in

Annareddy Sambasiva Reddy v. State of A.P.7, relying on

the principles enunciated in Willie (William) Slaney (supra),

has opined that the legal position stated by the larger Bench

would  hold  good  after  enactment  of  Code  of  Criminal

Procedure, 1973 as well in the light of Sections 215, 216, 218, 7  (2009) 12 SCC 546

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221 and 464 contained therein.  Proceeding further, the Court

has ruled:-

“Is non-mentioning of Section 149 in Charge 4 and Charge  5  a  fundamental  defect  of  an  incurable illegality  that  may  warrant  setting  aside  the conviction and sentence of  the appellants? We do not think so. Non-framing of a charge under Section 149 IPC, on the face of the charges framed against the  appellants  would  not  vitiate  their  conviction; more so when the accused have failed to show any prejudice in this regard. The present case is a case where  there is  mere omission to  mention Section 149 in Charges 4 and 5 which at the highest may be  considered  as  an  irregularity  and  since  the appellants have failed to show any prejudice, their conviction and sentence is not at all affected. Tenor of  cross-examination  of  PW  1  and  PW  3  by  the defence also rules out any prejudice to them.”

12. Keeping in view the aforesaid exposition of law, we are

required  to  see  whether  in  the  present  case,  the  tests  are

satisfied.  On a perusal of the evidence on record, we find the

facts and circumstances clearly bring out that there was an

unlawful assembly.  Each of the accused person was very well

aware  that  they  are  tried  for  being  a  part  of  the  assembly

which was armed with weapons and hence, it was unlawful.

On a close scrutiny of the evidence on record, it is difficult to

hold  that  any  prejudice  has  been  caused  to  the  accused

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appellants.   Thus,  the  said  submission  pales  into

insignificance.   

13. The next contention of the learned senior counsel for the

appellants  is  that  the  prosecution  witnesses  are  chance

witnesses, for there is no occasion on their part to be at the

scene of crime.  Dealing with the concept of chance witness, a

two-Judge Bench in  Rana Pratap and others v.  State of

Haryana8, has observed that:-

“We  do  not  understand  the  expression  “chance witnesses”.  Murders  are  not  committed  with previous  notice  to  witnesses,  soliciting  their presence.  If  murder  is  committed  in  a  dwelling house,  the  inmates  of  the  house  are  natural witnesses.  If  murder  is  committed  in  a  brothel, prostitutes and paramours are natural witnesses. If murder  is  committed  on  a  street,  only  passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere “chance witnesses”.  The expression “chance  witnesses”  is  borrowed  from  countries where  every  man’s  home is  considered  his  castle and  every  one  must  have  an  explanation  for  his presence elsewhere or in another man’s castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on  the  ground  that  they  are  “chance  witnesses”, even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence.”

8  (1983) 3 SCC 327

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14. In  Jarnail  Singh  v.  State  of  Punjab9,  a  two-Judge

Bench opined that the evidence of a chance witness requires a

very cautious and close scrutiny and as such a witness must

adequately explain his presence at the place of occurrence and

if his presence at the place of incident remains doubtful, then

his version should be discarded.   

15. In the case at hand, the prosecution has been able to

establish  the  presence  of  the  witnesses  at  the  place  of

occurrence.   The  plea  that  there  was  no  electricity  and,

therefore, it would not have been possible on the part of the

witnesses  to  see  the  accused-appellants  by  lighting  the

earthen mud lamp does not  deserve commendation,  for  the

witnesses have categorically deposed that they were able to see

the  accused  persons  and  the  participation  of  the

accused-appellants.  Thus, despite the keen scrutiny of their

evidence,  we  are  unable  to  put  them  in  the  category  of

so-called ‘chance witnesses’ as has been nomenclatured by the

learned senior counsel for the appellants.  

9  (2009) 9 SCC 719

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16. The  next  limb  of  submission  of  the  learned  senior

counsel  for  the  appellants  relates  to  acceptability  and

reliability of the dying declaration recorded vide Ex. P-13.  The

criticism is advanced on the foundation that it is absolutely

vague.  It  is urged by him that  the dying declaration being

absolutely infirm, it cannot be placed reliance upon and once

the dying declaration is discarded, a serious dent is created in

the prosecution story.  To appreciate the said submission, we

have carefully scrutinized the contents of the dying declaration

contained  in  Ex.  P-13,  which  has  been  recorded  by  the

Additional  Judicial  Magistrate,  First  Class,  PW-18.   In  his

testimony,  he has categorically stated every aspect in detail

and nothing has been elicited in the cross-examination.  At the

time  of  recording  of  the  dying  declaration,  as  the  material

would show, the declarant was absolutely in a conscious state

and there is an endorsement in that regard by the treating

doctor.   The  submission  that  the  dying  declaration  is

eminently  vague  is  neither  correct  nor  is  it  based  on  any

material on record.  On the scanning of the dying declaration,

we find that he has named Vutukuru Laxmaiah, A-1, Rayapu

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Sreenivasalu, A-2, Rayapu Subbaiah, A-3, Meriga Ramanaiah,

A-5,  Amburi  Raja,  A-8,  Rayapu  Ravi,  A-9,  and  Rapayu

Siddaiah.   Thus,  in the absence of  any kind of  infirmity or

inherent  contradiction  or  inconsistency  or  any  facet  that

would create a serious doubt on the dying declaration, we are

not  inclined  to  discard  it.   It  is  well  settled  in  law  that

conviction undisputedly can be based on dying declaration, if

it is found totally reliable.  In Mehiboobsab Abbasabi Nadaf

v.  State  of  Karnataka10,  while  discarding  multiple  dying

declaration, the Court held thus:-  

“Conviction can indisputably be based on a dying declaration. But, before it can be acted upon, the same  must  be  held  to  have  been  rendered voluntarily and truthfully. Consistency in the dying declaration  is  the  relevant  factor  for  placing  full reliance  thereupon.  In  this  case,  the  deceased herself  had  taken  contradictory  and  inconsistent stand  in  different  dying  declarations.  They, therefore,  should  not  be  accepted  on  their  face value.  Caution,  in  this  behalf,  is  required  to  be applied.”

In  Kashi  Vishwanath  v.  State  of  Karnataka11,  a

two-Judge  Bench  did  not  place  reliance  on  the  dying

10  (2007) 13 SCC 112 11  (2013) 7 SCC 162

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declaration as there were three dying declarations and they

showed certain glaring contradictions.  

17. At this juncture, it is worthy to note that the High Court

has acquitted A-4, A-8 and A-9 on the foundation that they

have been falsely implicated.  Learned senior counsel for the

appellants has contended that when the appellate court had

acquitted the said accused persons, there was no warrant to

sustain the conviction of other accused persons.  On a perusal

of the judgment of appellate court, we find that the judgment

of acquittal has been reversed on the score that the names of

A-8 and A-9 do not find mention in the evidence of PWs 1 to 3.

On similar basis, A-4 has been acquitted.   Suffice to mention

here because the High Court has acquitted A-4, A-8 and A-9,

that would not be a ground to discard the otherwise reliable

dying declaration, for the evidence in entirety vividly show the

involvement of the accused-appellants.   

18. The next plank of submission of the learned counsel for

the  appellant,  Vutukuru Lakshmaiah,  appellant  in Criminal

Appeal No. 2047 of 2008, pertains to non-acceptance of plea of

alibi.  As is manifest, both the Courts have elaborately dealt

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with it.  As the judgment of the High Court would reveal, a

finding  has  been returned that  there  is  no  evidence  to  the

effect what is the distance between municipal office where the

Committee meeting was held and the place where the offence

had been committed; nothing has been brought on record to

show  that  it  was  impossible  for  one  to  reach  the  place  of

offence;  that  the authenticity  of  the minutes book prepared

under the signatures obtained have not been maintained in

discharge  of  public  function  because  the  Water  Committee

constituted is not a statutory Committee.  That apart, the law

clearly stipulates how a plea of alibi is to be established.  In

this context, we may profitably reproduce a few passages from

Binay Kumar Singh V. State of Bihar12:-

“22. We must bear in mind that an alibi is not an exception  (special  or  general)  envisaged  in  the Indian Penal Code or any other law. It is only a rule of evidence recognised in Section 11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (a) given under the provision is worth reproducing in this context:

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

12  (1997) 1 SCC 283

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

[Emphasis supplied]

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The said principle has been reiterated in Gurpreet Singh

v.  State  of  Haryana13,  S.K.  Sattar  v.  State  of

Maharashtra14 and Jitender Kumar v. State of Haryana15.  

19. In  the  instant  case,  the  prosecution  has  been  able  to

clearly  establish the  presence  of  the  accused-appellant  A-1,

appellant in Criminal appeal No. 2047 of 2008, at the scene of

occurrence.  The initial onus put on the prosecution having

been discharged, the burden shifts to the accused to establish

the plea of alibi with certainty.  As is evident from the analysis

made  by  the  High  Court  that  the  plea  of  alibi  of  the

accused-appellant, A-1, could not be accepted as his presence

has been proven.  We find the said opinion of the High Court

is based on the material brought on record and hence, there is

no reason to differ with the same.  

20. The  last  plank  of  submission  of  the  learned  senior

counsel  for  the  appellants  is  that  the  appellants  had  no

intention to commit the murder of  the deceased.   It  is also

submitted by him that when death has occurred three days

13  (2002) 8 SCC 18 14  (2010) 8 SCC 430 15  (2012) 6 SCC 204

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after  the  incident,  it  is  demonstrable  that  there  was  no

intention on the part of the accused-appellants to kill him.  To

appreciate the said submission,  we have perused the injury

report.  We find that there are five stab injuries at different

parts of the body i.e.  near right axilla, below the right axilla,

over  right  hypochoncriam  at  mid  clavicular  line,  over  the

border of right scapula and over mid spinal region at the level

of 4th and 5th lumbar vertebra.  The evidence on record shows

that  the  deceased  was  assaulted  as  he  was  a  witness  in

Velongini Raja’s murder case wherein the accused-appellant,

A-1, was an accused.  There are cases where this Court has

converted offence from 302 IPC to 304 Part I IPC, regard being

had to the genesis of occurrence or the nature of injuries.  It is

because one of the relevant factors to gather the intention is

the nature of injury inflicted on the deceased.  In the instant

case,  considering  the  nature  of  injuries  and  the  previous

animosity, we are of the considered opinion that it is not a fit

case  where  the  offence  under  Section  302  IPC  should  be

converted to Section 304 Part I IPC.  

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21. Consequently,  we  do  not  perceive  any  merit  in  these

appeals and accordingly, the same stand dismissed.   

 .............................J.  [Dipak Misra]

............................J.           [N.V. Ramana]

New Delhi April 24, 2015

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