DR ANAND, J.

1. For an occurrence which took place on the night intervening May 31 and June 1, 1982, at about 1.00 a. m., in which one Iragana Gurava Reddy was murdered, six persons, namely, Dagumati Venkata Subba Reddy (A-1); Chinta Pulla Reddy (A-2); Balamreddi Pulla Reddy (A-3); Gaddam Pulla Reddy (A-4); Gaddam Panchala Reddy (A-5) and Bade Rami Reddi (A-6) were challaned and ultimately sent up for trial before the Additional Sessions Judge, Nellore. The first charge against the accused was under Section 148 IPC. They were all convicted of the said charge and each of the each of the accused was sentenced to two years, R. I. The second charge against A-1 was for an offence under Section 302 IPC. He was convicted for the said offence and sentenced to suffer imprisonment for life. The third charge was for an offence under Sections 302/149 IPC against remaining accused persons. The conviction was recorded for the offence under Sections 302/149 IPC against A-2 to A-6 and each one of them was sentenced to suffer imprisonment for life. Against their conviction and sentence all the accused-convicts appealed to the High Court. The High Court acquitted A-3 and A-6, but maintained the conviction and sentence of A-1 for the offence under Section 302 IPC and altering the conviction of A-2, A-4 and A-5 from the one under Sections 302/149 IPC to the one under Section 302/34 IPC maintained the sentence of life imprisonment. Conviction and sentence for the offence under Section 148 IPC was, however, set aside. After the judgment of the High Court was delivered, it appears that A-1 died. A-2, A-4 and A-5 have filed this appeal, on special leave being granted

2. Though generally speaking this Court does not reappreciate the evidence in an appeal, on special leave being granted, under Article 136 of the Constitution of India where two courts have appreciated the evidence and recorded concurrent findings, but since the High Court acquitted A-3 and A-6, we have, with the assistance of learned counsel for the parties, ourselves appreciated the material evidence in the case, with a view to determine whether the conviction and sentence recorded against the three appellants is justified or not

3. The first information report in this case, Ex. P-1, was lodged at 7.30 a. m. by PW 1, son of the deceased. It was scribed by LW-9, who however was not examined at the trial. In the first information report, besides A-1 to A-6, thirty other persons A-7 to A-36, with their parentage, were also named as accused persons. During the investigation, however, PW 1 in his statement recorded under Section 161 CrPC by the investigating officer, categorically asserted that he had not told the scribe that 30 persons A-7 to A-36, apart from A-1 to A-6 had also come armed to the house of the deceased at the time of occurrence. Even at the trial, PW 1 mentioned that apart from A-1 to A-6, no other person was mentioned as an accused by him to the police. The statements of other witnesses recorded under Section 161 CrPC also implicated only A-1 to A-6 in the crime. The investigating officer, therefore, had challaned only A-1 to A-6 and sent them for trial

4. It is the prosecution case, that earlier in the evening of May 31, 1982, Seshamma, PW 8 was assaulted by some persons, belonging to the party of A-1 in front of the house of A-1 and on learning about the assault, the deceased along with his wife PW 4, went to the house of A-1 where A-2 was also present to reprimand them for assaulting a lady. A-1 and A-2 took objection to the reprimand and threatened the deceased and PW 4 that they would seen "the end of the deceased". The deceased and his wife were told to leave and they went back to their house. Regarding the incident relating to the assault on PW 8, a complaint was lodged with the Police and a constable PW 9 was deputed to go to the village to see that no further occurrence takes place in view of two factions in the village

5. On the night of May 31, 1982, the wife of the deceased, PW 4, went to the house of her son, PW 1 and told him as to what had happened in the evening and the threat which had been administered to them by A-1 and A-2. She asked PW 1 to go to the house of his brother PW 2 and sleep there along with PW 2 as the deceased was staying with PW 2 at that time. PW 1 obeyed the command of his mother and went to the house of PW 2 and slept there leaving his mother PW 4 to stay in his house. Both PW 1 and PW 2 slept for the night near the cot of their father. A hurricane lantern was burning and both PWs 1 and 2 also had torchlights with them when they went to bed. On hearing the cry of their father, at about 1.00 a. m., PW 1 and PW 2 as also PW 3, wife of PW 2 and the daughter-in-law of the deceased who was sleeping inside the house woke up and saw six accused present there. They found A-1 and A-2 standing near the cot towards the head of the deceased, while A-3 to A-6 were standing on the southern side of that cot. All the accused were allegedly armed. After saying as to what they were waiting for, A-1 is alleged to have stabbed the deceased, with a knife which he was carrying, twice near his chest. None of the other accused, however, caused any injury to the deceased. The witnesses, PW 1, PW 2 and PW 3 saw and identified the accused in the light of the hurricane lantern and by flashing torchlights. After threatening the prosecution witnesses, all the accused left the place and went away. PW 1 sent information to his mother about the injuries caused to the deceased and himself went to the house of Sudhakara Rao, LW-9 and asked him to scribe the report, Ex P-1 which he presented to the investigating officer, PW 13 at about 7.30 a. m. The Inspector of Police, PW 14 after receipt of the FIR along with PW 13 and some constables proceeded to the spot and conducted the investigation. Various articles were taken into possession from the place of occurrence, including the blood-stained clothes of the deceased and blood-stained earth. The deceased had in the meanwhile succumbed to the injuries. PW 4 and others had also arrived and were present at that place. Inquest proceedings were conducted and PWs 1 to 4 were examined by the investigating officer. The dead body of the deceased was then sent for post-mortem examination. PW 5 conducted the post-mortem examination. He found two stab injuries besides three other injuries on the dead body of the deceased. Both, injuries 1 and 2, which were found to be the stab wounds in the chest had caused damage to the vital organs of the deceased. Accordingly to the opinion of the doctor PW 5, the deceased died as a result of shock and hemorrhage on account of the injuries to the lung, liver and heart which were referable to injuries 1 and 2 allegedly caused by the two stab wounds inflicted by A-1. The investigating officer during the investigation examined some other witnesses including PWs 6, 7 and 9 and ultimately made efforts to arrest the accused persons. They were, however, found absconding. The challan was filed without any delay and at the trial, the prosecution examined 14 witnesses to connect the accused A-1 to A-6 with the crime. All the accused in their statement under Section 313 CrPC denied the occurrence and pleaded false implication due to fictional rivalry in the village. A-1 and A-2 pleaded alibi and in support of the plea of alibi examined DW-2, DW-3, DW-4 and DW-5

6. The High Court after consideration of the evidence on the record, as already noticed, convicted A-2, A-4 and A-5 and acquitted A-3 and A-6. The High Court disbelieved the defence witnesses and rejected the plea of alibi set up by A-1 and A-2. For acquitting A-3 and A-6, the High Court found that since on PW 2s own showing he had told the police that he had not mentioned the names of A-4 to A-6 to his mother as the assailants of his father and PW 9, constable Nasthanaiah, had deposed that PW 2 had informed him "that A-1, A-2 and four others stabbed his father and went away", it would not be safe to convict A-3 and A-6 and giving them benefit of doubt acquitted them

7. Mr Lalit, learned senior counsel appearing for the appellants has submitted that the grounds on which benefit of doubt was given to A-3 and A-6 were also available insofar as A-4 and A-5 are concerned and the High Court has not given any distinguishing feature insofar as they are concerned and, therefore, their conviction cannot be sustained and they also deserve to be acquitted like A-3 and A-6. A careful examination of the evidence of PWs 1, 2, 3 and 9 would go to show that they specifically implicated only A-1 and A-2 as the persons present together near the cot. According to PW 2 "I told the police that I told my mother and my brother Iragana Ramanareddy and others that A-1 to A-3 were the assailants of my father". Accordingly to PW 9, the constable who was present in the village,

"At about 1.00 a. m. (in the night) we heard cries from the western direction. We went to the house of PW 2 and found the deceased lying dead with bleeding injuries on a cot. PW 2 informed us, that A-1, A-2 and four others stabbed his father and went away. When we asked PW 2 to give a report, he stated that his brother PW 1 left for Atmakur in order to give a report. Thereafter, we went to the house of A-1 and A-2, but they were not in their houses." *

PW 1 in his statement categorically stated that "I did not tell the scribe of Ex. P-1 that A-2, A-3, A-4, A-5, A-6 stabbed indiscriminately my father with the knives in their hands". Referring to the earlier incident of the evening, when his father and mother had gone to the house of A-1, PW 1 stated that A-1 and A-2 on being reprimanded had threatened my father with dire consequences. PW 4 the widow of the deceased who had accompanied her husband to the house of A-1 in the evening deposed

"I and my husband went to the house of A-1 and questioned A-1 and A-2 who was also present there as to why Seshamma was beaten by their party people. Thereupon, A-1 and A-2 took objection for questioning them and stated that they would see to his deceased fate." *

Thus it was, according to the prosecution case, A-1 and A-2 who alone had administered the threat and who had taken strong exception to the reprimand by the deceased. A-4 and A-5 did not figure in the earlier episode, which provided the immediate motive, for the commission of the crime

8. The evidence led by the prosecution about the actual assault during the night on the deceased also specifically implicated A-1 and A-2 only. Accordingly to PW 1,

"I saw only A-1 stabbing my father. I did not see any other accused stab my father. A-1 stabbed my father on the right chest near the nipple and below the nipple." *

After stating that all the six accused had come armed, the witness admitted in the cross-examination that I and my brother did not address A-1 and A-2 why they had come to commit that heinous crime." This part of his testimony is also supported by PW 2. Accordingly to PW 3, the wife of PW 2, she had seen A-1 and A-2 standing together near the head of the cot. As already noticed, the first version given by PW 2 to the constable PW 9 who reached the houses of PW 2 on hearing the cries, PW 2 had informed him that "A-1 and A-2 and four others" had stabbed his father. After the occurrence, after PW 1 had left the house for lodging the report, the villagers along with PW 9 also only went to the houses of A-1 and A-2 to search for them and they did not go in search for A-4 and A-5

9. According to the medical evidence, only two stab injuries were found on the deceased and according to the eyewitnesses both the injuries had been caused by A-1. Keeping in view the evidence relating to the threat administered in the evening and the statement which PW 2, the son of the deceased made to PW 9 immediately after the occurrence, it appears to us that the prosecution has not been able to establish beyond a reasonable doubt the participation of A-4 and A-5 in the crime. In our opinion, the case against A-4 and A-5 has not been established beyond a reasonable doubt and they are therefore entitled to the benefit of doubt

10. Coming now to the case of A-2. We are unable to agree with Mr Lalit that his participation in the crime has not been established. It is the consistent case of the prosecution that both A-2 and A-1 had administered the threat in the evening to the deceased and his wife when they had gone to reprimand A-1 for the assault on PW 8. They, therefore, had the immediate cause and provocation for the assault on the deceased in furtherance of the threat administered by them earlier. The testimony of PW 1, PW 2 and PW 3 who are the natural witnesses and are the eyewitnesses is consistent insofar as the presence of A-1 and A-2 at the time of occurrence is concerned. They have clearly deposed about the manner in which A-1 and A-2 were standing towards the head of the cot armed with knives as also how A-1 stabbed the deceased twice on his chest. The witnesses knew both A-1 and A-2 and had identified them clearly. Their testimony leaves no manner of doubt to hold that A-2 along with A-1 had come armed with knives to the house of the deceased and both were present at the middle of the night near the head of the cot on which the deceased was lying when A-1 stabbed him twice in the chest and thereafter left together. Both A-1 and A-2 had thus, shared the common intention of causing the death of the deceased, as according to the medical evidence, the two stab injuries inflicted on the deceased on his chest were sufficient in the ordinary course of nature of cause death

11. The plea of alibi put up by A-1 and A-2 need a notice only to be rejected. The testimony of the defence witnesses DW 2 to DW 5 does not inspire any confidence. In the cross-examination, the story given out by them has been successfully shattered. We are in agreement with High Court that the plea of alibi is false and we are of the view that the same was rightly rejected by the courts below. Both A-1 and A-2 were named as the assailants at the earliest point of time by PW 2 to constable PW 9. Since, A-1 and A-2 had been named as the assailants by the eyewitnesses, constable PW 9 and others had rushed to the house of A-1 and A-2 but they had absconded. A careful analysis and appraisal of the evidence on the record shows that A-2 was present on the night of the occurrence with a knife along with A-1, who was also armed with a knife, and had shared the common intention with A-1 of causing bodily injuries to the deceased which were sufficient in the ordinary course of nature to cause the death of the deceased. Section 34 IPC is, therefore, clearly attracted to the case of A-2, even though he did not by himself cause any specific injury to the deceased. The High Court had rightly convicted both A-1 (since dead) and A-2 for the offence of murder of the deceased. The conviction of A-2 for an offence under Section 302/34 IPC is, therefore, well merited and the sentence of imprisonment for life imposed upon him is justified

12. As a result of the above discussion, we give benefit of doubt to the two appellants, Gaddam Pulla Reddy (A-4) and Gaddam Panchala Reddy (A-5) and setting aside their conviction acquit them of the charges against them. We, however, uphold and maintain the conviction of A-2, Chinta Pulla Reddy, for the offence under Sections 302/34 IPC and also the sentence of life imprisonment imposed upon him by the High Court. As a result while the appeal of A-4 and A-5 succeeds and is allowed, the appeal of A-2 fails and is dismissed. A-2 is on bail. His bail bonds are cancelled and he is directed to be taken into custody to suffer the remaining period of his sentence.