SUPREME COURT OF INDIA

Before:- U.C. Banerjee and B.N. Agrawal, JJ.

Criminal Appeal No. 672 of 1994. D/d. 14.8.2002.

Kalahasthri Pattabhirami Reddy - Appellant

Versus

State of A.P. - Respondent

Evidence Act, 1872, Section 3 - Plea of alibi - Plea of alibi must be cogent with the evidence available on record - Stated that accused was in the hospital - No hospital record has been produced - Held, that the plea of alibi cannot be accepted - Appeal dismissed.

[Para 5]

ORDER

This appeal is against an order of reversal of the judgment of the learned sessions judge, Ongole, acquitting the accused persons of all the charges who were tried for offences punishable under Sections 148, 302 read with Sections 149, 325 and 326 Indian Penal Code. The contextual facts depict that on 31st July, 1986 in the evening at about 4 p.m. all the accused formed into unlawful assembly at the field of accused No. 1 situated at a distance of about half a mile from the village of Madanur with the common object of killing Balagani Venkateswarlu and, with that common object, accused Nos. 2, 8, 9 and 18 attacked Venkateswarlu, the deceased and during that incident PWs. 1 to 20 were also attacked by the accused persons. Subsequently, as a result of injuries suffered, the deceased breathed his last in the hospital in the early hours of 1.8.1986.

2. The trial Court upon the analysis of the evidence, however, came to the finding that on a probability of there being some doubt about the identity of the accused persons, in particular accused No. A-2, acquitted the accused persons. Against such an order of acquittal, the state Government went in appeal before the High Court and the High Court, in a detailed judgment, came to the conclusion that the acquittal order of accused Nos. 2, 8, 9 and 18 cannot be sustained. Whereas accused No. 2 was found guilty of offence under Section 302 Indian Penal Code and the High Court convicted and sentenced him imprisonment for life, accused Nos. 8, 9 and 18 were found guilty of offence under Section 323 Indian Penal Code and each one of them was sentenced to pay a fine of Rs. 1000/-, in default, to undergo simple imprisonment for two months.

3. The present appeal, however, is directed against such an order of conversion of acquittal to that of conviction and sentence of accused No. 2 only. As the other accused persons (A-8, A-9 and A-18) have already paid the fine, as directed by the High Court, the matter stands concluded so far as they are concerned. Turning attention on to the case of accused No. 2, the High Court has stated thus :

"All the witnesses have stated that A-2 beat the deceased with Kattuvapara on the head. It was contended that Kattuvapara is a sharp edged weapon and as such the injuries as are found on the deceased could not have been caused with such a weapon. Kattuvapara is a weapon which is used for removing grass and only one of its edge will be sharp. So, when it is said that A-2 beat the deceased on the head, it is quite probable that the sharp edge would not have come into contact. Then the beat is on the head with a Kattuvapara only the blunt portion of it must have come into contact. So, it cannot be said that the injuries as are found on the deceased could not have been caused with Kattuvapara. The interned examination disclose that there was fracture of skull bones resulting in epidural haematoma of 6" x 6" over right temporal over right parietal region. There was also damage to the brain and this resulted in the death. So, having regard to the weapon used, the location of the injury and the damage caused to the skull bone and the brain we are of the opinion that A-2 must be said to have intended to cause the death of the deceased."

4. It is these observations and findings of the High Court, however, which stand contradicted and challenged by the learned advocate appearing in support of the appeal who states that the High Court, in a very slipshod manner, has dealt with the issue without there being any factual support. On a perusal of the record and the evidence, as available, we however cannot record our concurrence to the submissions put forward by the learned counsel appearing in support of the appeal. On perusal of the evidence on record the involvement of accused No. 2 cannot in any way be doubted and as such, we do not find any error as regards the conviction and sentence, so far as accused not is concerned.

5. Incidentally, two other points were also taken, the first of which relates to the plea of alibi. Be it noted that in order to have the plea of alibi to succeed, there must be cogent evidence available on record. Accused No. 2 has been categorical in his statement that he was not available on the date of the occurrence and at the place of occurrence since he was at Madras getting himself treated for his heart ailment. Two doctors certificates have been annexed to the petition for special leave and the same also have been placed on the record before the trial Court. We are, however, unable to record our concurrence as regards the plea of alibi since apart from the two doctors certificates, there is no other cogent evidence available. It has been stated that accused No. 2 was in hospital, but no hospital record has been produced as such, so as to depict that on the date of occurrence the accused was in hospital to warrant acceptance of the plea of alibi.

6. On the second count, the learned counsel contended that 28 accused persons were named in the FIR but the appellant's name has not been mentioned therein. This statement, however, does not have any factual support to the FIR. While it is true that at first it has been mentioned that accused Pattabhirami Reddy s/o Krishna Reddy, subsequently mentioned as Pattabhirami Reddy s/o Venkata Subba Reddy is the person who did hit 'Kattuvapara' on his head and on his face. There may be some confusion as regards the first name present by reason of a different parenthood but the second name noticed hereinbefore does record the parentage criteria correctly as also the name. It is on this score, we do not, thus, feel inclined to put any reliance on such a submission.

7. Upon consideration of the facts and circumstances of the facts available on record as also having due regard to the submissions made by the learned counsel, we do feel it expedient that there is no merit in the appeal. A appeal, thus, fails and is dismissed. The bail bond be cancelled immediately and the appellant betaken into custody without any further loss of time serve out the remaining period of sentence.

Appeal dismissed.