IMPORTANT POINT
Where the evidence examined by the appellate court unmistakably proves that the appellant was guilty of having shared a common intention with the other accused who were acquitted and that their acquittal was bad, there is nothing to prevent the appellate Court from expressing that view and giving the finding and determining the guilt of the appellant before it on the basis of that finding.

JUDGMENT

Nanavati, J.-This appeal by Original Accused Nos. 9 and 11 arises out of the judgment and order passed by the Andhra Pradesh High Court in Criminal Appeal No. 756 of 1981 confirming the order of conviction and sentence passed by the Court of the Sessions Judge, Cuddapah in Sessions Case No. 45 of 1980.

2. On 8.9.1979 at about 4.30 P.M. Sivarami Reddi alias Sivanna of Village Kondapuram, along with his uncle Bodella Yellareddi (P.W. 1) and his grandson Jayachandra Reddy (P.W. 2) had gone to his lime garden for watering lime trees. At about sunset time they started returning and when they had come near the bus stand, Accused No. 1 along with other 11 accused assaulted Sivanna with hunting sickles, daggers, spears and hatchets, because of the enmity between the party of Sivanna and the party of Accused No. 1 Sivanna died on the spot. Jayachandra Reddy, remained near the dead body and Yellareddy (P.W. 1) went to the police station. He gave a complaint (Exh. P-1) in writing and on that basis an offence was registered. All the 12 accused were chargesheeted by the police and they came to be tried in the Court of Sessions, Cuddapah for the offences punishable under Sections 148, 302 read with 149 I.P.C. and in the alternative, for the offences punishable under Section 302 read with Section 34 I.P.C. During the pendency of the trial Accused No. 2 died and the trial proceeded against the remaining 11 accused.

3. In order to prove its case the prosecution mainly relied upon the evidence of three eye-witnesses, namely, PW 1 Bodella Yellareddy, PW 2 Jayachandra Reddy and PW. 3 Shaik Bashu. The learned Sessions Judge believed the presence of the three eye-witnesses near the scene of offence and held that their evidence deserved to be believed "to the extent of their seeing the attack against the deceased with deadly weapons like spears, hatchets and hunting sickles." However, in view of the corrections made in the names of Accused Nos. 5 and 7 in the written complaint (Exh. P-1) the learned Sessions Judge doubted their participation in the offence and acquitted them giving benefit of doubt. As it was found that Accused Nos. 3 and 12 were of a different villages and had no motive to participate in the attack they were also given benefit of doubt. The learned Sessions Judge convicted the rest of the accused that is Accused Nos. 1, 4, 6 and 8 to 11 under Sections 148 and 302 read with 149 IPC and sentenced them to undergo imprisonment for life.

4. All those 7 accused challenged their conviction by filing an appeal in the High Court. During the pendency of the appeal Accused No. 1 died. The High Court did not agree with the finding recorded by the trial Court that there were interpolations in the written complaint (Exh. P-1) and held that Accused Nos. 5 and 7) were wrongly acquitted. The High Court also rejected the contention raised on behalf of the defence that there was delay in lodging the first information report and that it was recorded after deliberation and consultations. The High Court believed that P.W. 1, P.W. 2 and P.W. 3 were the eye-witnesses to the incident but observed that as they were interested witnesses their evidence was required to be scrutinised with care and caution. After carefully scrutinising their evidence the High Court held that it did not suffer from material discrepancies or variations as contended by the defence. As regards Accused Nos. 4, 6, 8 and 10 who according to the eye-witnesses had given spear blows to the deceased the High Court held that the evidence of the eye-witnesses was not consistent with respect to the part played by them, and also with the medical evidence and, therefore, they deserved to be given benefit of doubt. Believing the presence of the other accused except Accused Nos. 4, 6, 8 and 10, the High Court held that even though the acquittal of the acquitted accused could not be set aside in absence of an acquittal appeal against them, the conviction of Accused Nos. 9 and 11 under Sectio