ORAL JUDGMENT: V.M. KANADE, J.

1. Appellant is the original accused No.2. He has been convicted for the offence punishable under section 302 of the Indian Penal Code and he is sentenced to suffer rigorous imprisonment for life. He is also convicted for the offence punishable under section 452 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year. Being aggrieved by the said judgment and order, the appellant has preferred this appeal in this court.

2. Brief facts are as under:-

3. Prosecution case, in brief, is that on 10/4/1989, at about 5.00 P.M., accused Nos. 1 to 5 entered the house of deceased Apparao and all of them assaulted the deceased with knife in his house situated at Warad Chawl. According to prosecution, brother of Apparao was also assaulted with knife and, thereafter, the accused ran away. Apparao and Mallinath were taken to the General Hospital, Solapur where Apparao was pronounced to be dead and, thereafter, Mallinath was treated in the hospital and he was discharged on 29/04/1989. An FIR was registered against the accused and they were arrested. Postmortem was performed by Dr. Kanaki who has stated that the injury on the neck was sufficient in the ordinary course of nature to cause death. Statements of witnesses were recorded. Prosecution examined 19 witnesses in support of its case and the accused examined four witnesses and raised a plea of alibi.

4. Trial Court convicted the accused No.2 on the basis of the sole eye witness testimony of Bhagirathi, wife of the deceased and held that the plea of alibi had not been proved by the accused.

5. Mr. A. P. Mundargi, the learned Senior Counsel appearing on behalf of the appellant submitted that the Trial Court had acquitted the accused No.1, 3, 4 and 5 and observed that testimony of the sole eye witness P.W. 1 – Bhagirathi was not trustworthy so far as the said accused are concerned. However, at the same time, Trial Court relied on her testimony so far as her evidence against accused No. 2 is concerned. It was submitted that the Trial Court having found that evidence of P.W.1 is not trustworthy so far as accused Nos. 1 and 3 to 5 are concerned, it could not have relied on part of her testimony against accused No.2. Secondly, it was submitted that P.W.1 had made number of improvements in her evidence apart from the fact that there were omissions and contradictions in her testimony which were proved by the defence by bringing them on record. It was thirdly submitted that the appellant was falsely implicated on account of enmity between the deceased, his wife P.W.1 and accused No.2 since the complainant did not like the appellant assisting their landlord Mr. Patil. It was then submitted that the accused No.2 had examined four witnesses in order to prove that he was in the Mill at the time when the said incident had happened. It was submitted that the Trial Court had wrongly discarded the evidence of these witnesses who had established presence of the appellant in the Mill from 9.00 A.M. to 6.00 P.M.

6. On the other hand, the learned APP appearing on behalf of the State submitted that so far as the ground of alibi is concerned, the Court had noticed that there were some alterations in the muster roll and in other documents which were produced by the accused. It was submitted that the Trial Court had observed that the testimony of P.W. 1 – Bhagirathi was consistent in respect of the role which was attributed to the appellant – accused No.2. Therefore, Trial Court was justified in convicting the appellant on the sole eye witness account of P.W.1.

7. After having heard the learned Senior Counsel appearing on behalf of the appellant and the learned APP appearing on behalf of the State and after going through the evidence on record, in our view, the prosecution has failed to establish its case against the appellant beyond reasonable doubt and apart from that the accused has established a plea of alibi and, therefore, the judgment a