VUTUKURU LAKSHMAIAHversusSTATE OF ANDHRA PRADESH

                        [2015] 4 S.C.R. 750


A                   VUTUKURU LAKSHMAIAH

                                 v.

                 STATE OF ANDHRA PRADESH

B               (Criminal Appeal No. 2047 of 2008)

                          APRIL 24, 2015 ·

             [DIPAK MISRA AND N.V. RAMANA, JJ.]
c      Penal Code, 1B60 - ss. 302, 14B, 324 and 3241149 -
  Murder - Previous animosity between the parties - On the
  fateful day, accused persons armed with weapons stabbed
  the victim multiple times who succumbed to his injuries
  three days later - PW1 escaped the assault - Conviction
0
  of A 1 to A5 and A 7 to A9 for offences punishable u/ss. 148
  and 302 and conviction of A2 to A5 u/s. 324 and A5 uls. 3241
   149 on the basis of the testimony of the eye-witnesses-PW
  2 and PW 3 and the dying declaration of the victim -
E Acquittal of A4, AB and A9 by High Court but conviction of
  other accused upheld - On appeal, held: Facts and
  circumstances clearly bring out that there was an unlawful
  assembly - Prosecution established the presence of
  witnesses at the place of occurrence - Dying declaration was
F totally reliable - High Court acquitted A4, AB and A9
  because they were falsely implicated but the same could not
  be a ground to discard the otherwise reliable dying
  declaration, since the evidence in entirety showed the
  involvement of the accused - Plea of alibi of accused-A 1,
G could not be accepted since his presence was proved -
  Considering the nature of injuries and the previous
  animosity, it is not a fit case to convert the offence u/s. 302
  to s. 304 Part I - Thus, the order passed by the High Court

H                               750
    VUTUKURU LAKSHMAIAH v. STATE OF ANDHRA                   751
                  PRADESH

upheld - Evidence Act, 1872 - s. 32.                          A
    Dismissing the appeals, the Court

      HELD: 1.1 On a perusal of the evidence on record,
it is found that the facts and circumstances clearly bring
                                                              8
out that there was an unlawful assembly. Each of the
accused person was very well aware that they were tried
for being a part of the assembly which was armed with
weapons and hence, it was unlawful. Thus, the
submission as regards non-framing of charge u/s.149           c
IPC pales into insignificance. [Para 12] [763-B-C]

     Willie (William) Slaney v. State of M.P. AIR 1956 SC
116: 1955 SCR 1140; Annareddy Sambasiva Reddy v. State
of A.P. (2009) 12 SCC 546: 2009 (6) SCR 755; Rana Pratap D
and others v. State of Haryana (1983) 3 SCC 327; Jarnail
Singh v. State of Punjab (2009) 9 SCC 719: 2009 (13) SCR
77 4 - referred to.

     1.2 The prosecution was able to establish the
presence of the witnesses at the place of occurrence. E
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 F
the witnesses categorically deposed that they were able
to see the accused and the participation of the accused-
appellants. Thus, despite the keen scrutiny of their
evidence, they cannot be put in the category of so-
called 'chance witnesses'. [Para 15] [764-D-F]            G

    1.3 The contents of the dying declaration recorded
by the Judicial Magistrate, First Class- PW-18 have been
scrutinized. In his testimony, he categorically stated
every aspect in detail and nothing was elicited in the        H
752        SUPREME COURT REPORTS            [2015] 4 S.C.R.

A 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
B vague is neither correct nor is it based on any material
  on record. On the scanning of the dying declaration, it
  is found that he named A-1, A-2, A-3, A-5, A-8, A-9, and
  RS. Thus, in the absence of any kind of infirmity or
  inherent contradiction or inconsistency or any facet
C that would create a serious doubt on the dying
  declaration, it cannot be discarded. The conviction
  undisputedly can be based on dying declaration, if it is
  found totally reliable. [Para 16) [765-B-E)

D          Mehiboobsab Abbasabi Nadaf v. State of Kamataka
      (2007) 13 SCC 112: 2007 (8) SCR 713; Kashi Vishwanath
      v. State of Kamataka (2013) 7 SCC 162: 2013 (10) SCR
      627 - referred to.

 E      1.4 On a perusal of the judgment of appellate court,
  it is found that the judgment of conviction was reversed
  on the score that the names of A-8 and A-9 did not find
  mention in the evidence of PWs 1 to 3. On similar basis,
  A-4 was acquitted. Suffice to mention because the High
F Court 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. [Para 17] [766-
G C-E]
      1.5 The prosecution was able to clearly establish the
  presence of the 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,
H the burden shifts to the accused to establish the plea
    VUTUKURU LAKSHMAIAH v. STATE OF ANDHRA                     753
                  PRADESH

of alibi with certainty. As is evident from the analysis A
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. 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. B
[Para 19] [768-F-G; 779-A-B]

    Binay Kumar Singh V. State of Bihar (1997) 1 SCC
283: 1996 (8) Suppl. SCR 225; Gurpreet Singh v. State of
Haryana (2002) 8 SCC 18: 2002 (2) Suppl. SCR 337; S.K. C
Sattar v. State of Maharashtra (2010) 8 SCC 430: 2010 (10)
SCR 503; Jitender Kumar v. State of Haryana (2012) 6 SCC
204: 2012 (4) SCR 408 - referred to.

     1.6 As regards the submission that there was no            o
intention on the part of the accused-appellants to kill the
victim, from the inquiry report it is found, there were five
stab injuries at different parts of the body. The evidence
on record shows that the deceased was assaulted as
he was a witness in a murder case wherein the accused-          E
appellant, A-1, was an accused. Considering the nature
of injuries and the previous animosity, it is not a fit case
where the offence u/s. 302 IPC should be converted to
s. 304 Part I IPC. [Para 20] [769-C-G]
                                                                F
    State of Orissa v. Dibakar Naik (2002) 5 SCC 323: 2002
(3) SCR 307; Sunder Lal v. State of Rajasthan (2007) 10
SCC 371: 2007 (6) SCR 76 Marimuthu v. State of Tamil
Nadu (2008) 3 SCC 205: 2008 (1) SCR 547 - referred to.
                                                                G
                  Case Law Reference

   2002 (3) SCR 307           referred to       Para 8
   2007 (6) SCR 76            referred to       Para 8
   2008 (1) SCR 547           referred to       Para 8          H
754         SUPREME COURT REPORTS                 [2015] 4 S.C.R.


A         1955 SCR 1140             referred to       Para 10
         2009 (6) SCR 755           referred to       Para 11

          (1983) 3 sec 321          referred to       Para 13

B         2009 (13) SCR 774         referred to       Para 14

         2007 (8) SCR 713           referred to       Para 16

         2013 (10) SCR 627          referred to       Para 17
c        1996 (8) Suppl. SCR 225 referred to          Para 18

         2002 (2) Suppl. SCR 337 referred to          Para 18

         2010 (10) SCR 503          referred to       Para 18
D        2012 (4) SCR 408           referred to       Para 18

          CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No. 2047 of 2008.

E         From the Judgment and Order dated 22.03.2007 of the
      High Court of Andhra Pradesh at Hyderabad in Crl. A. No. 517
      of 2005.

                                   WITH
F         Crl. A. Nos. 2050 and 2052 of 2008

         Nagendra Rai, A.TM. Rangaramanujam, P. N.
      Ramalingam, for the Appellant.

G        June Chaudhary, D. Mahesh Babu, Amit K. Nair, T. V.
      Bhaskar Reddy, Amjid Maqbool for the Respondent.

          The Judgment of the Court was delivered by
          DIPAK MISRA, J. 1. The present appeals are directed
H     against the judgment and order dated 22.03.2007 passed by
    VUTUKURU LAKSHMAIAH v. STATE OF ANDHRA                   755
           PRADESH [DIPAK MISRA, J.]

the High Court of Andhra Pradesh in Criminal Appeal No. 517 A
of 2005, whereby it has confirmed the judgment of conviction
and order of 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) B
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.            C

     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 D
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.
                                                                E
     3. On 14.05.1996 about 9.30 p.m., Pamula Ramanaiah,
PW-1, and the deceased were travelling on their scooter
towards Akuthota Harijanawaoa, and when they reached a
sweet meat shop, Meriga Yedukondalu, A-4, and Utukuru
Seenaiah, A-6 (since deceased) attacked them as a result F
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 G
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.
                                                               H
756          SUPREME COURT REPORTS                   [2015] 4 S.C.R.


A           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
B      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,
       recorded the statement of PW-1, Ex. P-1, and it was handed
C      over to G. Srinivasa Rao, Sub-Inspector of Police, PW-21.
       Based on the statement, Crime No. 57of1996 U/s. 147, 148,
       324, 307 r/w 149 !PC was registered and the investigation
       commenced. The deceased was subsequently shifted to
       Apollo Hospital, Madras for better treatment. Meanwhile the
0
       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
E      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
F     .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,
G      Chennai for postmortem 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
H      28.05.1996 and at the instance of the arrested persons,
    VUTUKURU LAKSHMAIAH v. STATE OF ANDHRA                       757
           PRADESH [DIPAK MISRA, J.]

except A-9, the investigating agency recovered four knives        A
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.                 B

      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 C
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 A-5 and A-7 to A-9 for the offences D
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.                                 E

    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        F
passed by the trial court in respect of the present appellants
and partly allowed the appeal thereby acquitting A4, AS and
A9 giving them the benefit of doubt.

    7. We have heard Mr. Nagendra Rai, learned senior G
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               H
758         SUPREME COURT REPORTS                    [2015] 4 S.C.R.


A     appellants that the evidence adduced by the prosecution
      witnesses should have been discarded inasmuch as their
      testimony is 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
 B    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
C     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
0
      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
 E    attending the Water Committee meeting on the date of
      occurrence and the same had been established by bringing
      acceptable evidence on record by citirig witnesses and also
      by filing documents Ex. D-3 to D-8 which are documents
      maintained by Nellore Municipality. It is his further submission
 F    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
G     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
H     of intention and the nature of injury suffered by the deceased
    VUTUKURU LAKSHMAIAH v. STATE OF ANDHRA                         759
           PRADESH [DIPAK MISRA, J.]

and death having taken place after three days, they may be A
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 v. State of Rajasthan 2 and
Marimuthu v. State of Tamil Nadu3                           B

     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 C
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, D
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 E
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
issue, in Willie (William) Slaney v. State of M.P. 4 Vivian         F
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
                                                                    G
1 (2002) 5 sec 323

2 (2001) 1o sec 371

3 (200B) 3 sec 205
4 AIR 1956 SC 116                                                   H
760          SUPREME COURT REPORTS                     [2015] 4 S.C.R.

A 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
B 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
c           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
D           particular case, he is as much entitled to the benefit of
            it here as elsewhere; but if, on a careful conslderation
            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
E           whether objection to 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-
F           Emperor6) 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 defE:d in the
G           mode of conducting a criminal trial can be justified or
            cured by the consent of the advocate of the accused"
            (Abdul Rahman v. King-Emperor°).
      5 AIR 1930 PC 57

H     6 AIR 1927 PC 44
    VUTUKURU LAKSHMAIAH v. STATE OF ANDHRA                        761
           PRADESH [DIPAK MISRA, J.]

     But these are matters of fact which will be special to        A
     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        B
     thing as a judicial precedent on facts though counsel,
     and even Judges, are sometimes prone to argue and
     to act as ifthere were."

     Chandrasekhara Aiyar, J., in his concurring opinion stated    r,
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 o
     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 E
     have been raised at an earlier stage in the
     proceedings."

     After so stating, the learned Judge opined that generally
in cases of omission to frame a charge is not per se fatal.        F
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 G
     actuated by a common object o_r 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.                                      H
762         SUPREME COURT REPORTS                    [2015] 4 S.C.R.


A           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
 B          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."

C       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
D Procedure, 1973 as well in the light of Sections 215, 216, 218,
  221 and 464 contained therein. Proceeding further, the Court
  has ruled:-

           "Is non-mentioning of Section 149 in Charge 4 and
E          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 tne charges framed against the appellants would not
 F         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
G          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


H     7 (2009) 12 sec 546
    VUTUKURU LAKSHMAIAH v. STATE OF ANDHRA                          763
           PRADESH [DIPAK MISRA, J.]

      also rules out any prejudice to them."                         A

     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          B
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               C
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          o
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
Haryana 8 , has observed that:-
                                                                     E
     "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 inmate~ of the
     house are natural witnesses. If murder is committed in F
     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 G
     "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

a (1983) 3 sec 327                                                   H
764       SUPREME COURT REPORTS                  [2015] 4 S.C.R.


A        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
B        committed in a street, is to abandon good sense and
         take too shallow a view of the evidence."

       14. In Jarnail Singh v. State of Punjab 9 , a two-Judge
  Bench opined that the evidence of a chance witness requires
C 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.

o      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
E 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-
F called 'chance witnesses' as has been nomenclatured by the
  learned senior counsel for the appellants.

        16. The next limb of submission of the learned senior
  counsel for the appellants relates to acceptability and
G 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

H 9 (2009) 9 sec 719
    VUTUKURU LAKSHMAIAH v. STATE OF ANDHRA                          765
           PRADESH [DIPAK MISRA, J.]

the dying declaration is discarded, a serious dent is created        A
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           B
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                C
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 Sreenivasalu, A-2, Rayapu Subbaiah, A-3,
                                                                     0
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    E
conviction undisputedly can be based on dying declaration,
if it is found totally reliable. In Mehiboobsab Abbasabi
Nadaf v. State of Karnataka 10 , while discarding multiple
dying declaration, the Court held thus:-
     "Conviction can indisputably be based on. a dying F
     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 G
     case, the deceased herself had taken contradictory and
     inconsistent stand in different dying declarations. They,
     therefore, should not be accepted on their face value.

10 (2007) 13 sec 112                                                 H
766         SUPREME COURT REPORTS                   [2015] 4 S.C.R.


A           Caution, in this behalf, is required to be applied."
           In Kashi Vishwanath v. State of Karnataka 11 , a two-
      Judge Bench did not place reliance on the dying declaration
      as there were three dying declarations and they showed
8     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
C 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
0
  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
E 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
F of alibi. As is manifest, both the Courts have elaborately dealt
  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
G 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

H     11 (2013) 7 sec 162
    VUTUKURU LAKSHMAIAH v. STATE OF ANDHRA                         767
           PRADESH [DIPAK MISRA, J.]

discharge of public function because the Water Committee            A
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 \I. State of Bihar12 :-
                                                                    B
     "22. We must bear in mind that an alibi is not an
     exception (special or general) envisaged in the lnclian
     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.    C
     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      D
     was at Lahore is relevant."

     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       E
     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     F
     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           G
     when the bu_rden has been discharged by the
     prosecution satisfactorily. But once the prosecution


12 (1997) 1 sec 2a3                                                 H
768         SUPREME COURT REPORTS                    [2015] 4 S.C.R.


A           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
B           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
c           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
D
            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.
E                                               [Emphasis supplied]

         The said principle has been reiterated in Gurpreet Singh
      v. State of Haryana 13 , S.K. Sattar v. State of
      Maharashtra 14 and Jitender Kumar v. State of Haryana 15 .
F
       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
G been discharged, the burden shifts to the accused to

      13 (2002) a sec 1a

      14 (2010) a sec 430

H     1s (2012) a sec 204
    VUTUKURU LAKSHMAIAH v. STATE OF ANDHRA                           769
           PRADESH [DIPAK MISRA, J.]

establish the plea of alibi with certainty. As is evident from the    A
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.                    B

     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 C
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 D
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 E
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 F
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.                               G

   21. Consequently, we do not perceive any merit in these
appeals and accordingly, the .same stand dismissed.
Nidhi Jain                                     Appeals dismissed.
                                                                      H