P. S. NARAYANA, J. ( 1 ) APPELLANTS-A-1 and A-2 preferred this criminal appeal as against the judgment of the learned Additional Sessions Judge, khammam, made in Sessions Case No. 80 of 1995, dated 02-05-1998. ( 2 ) THE charge against the accused is under Section 302 read with Section 34 IPC and the learned Judge, on appreciation of evidence, found A-l guilty for an offence under Section 304-I IPC, and found A-2 guilty for an offence under Section 304-I read with Section 34 IPC, and ultimately, convicted accused 1 and 2, and sentenced a-l to undergo Rigorous Imprisonment for a period of seven years and to pay a fine of rs. 1,000/- in default, to undergo Rigorous imprisonment fortwo months, and sentenced a-2 to undergo Rigorous Imprisonment for a period of seven years and to pay a fine rs. 4,000/- in default, to undergo Rigorous imprisonment two months. ( 3 ) THE prosecution version is that Mukka posham-P. W. 1 is the father of the deceased and the deceased-Muchakurthy Sukanya was the eldest among all his children. A-2 married the deceased in the year 1982, and the couple were blessed with three sons aged about 11,8 and 6 years respectively. A-l at the relevant point of time was residing at yellandu, who was in search of a job, and since A-l was jobless, he used to visit his brother-A-2 on every payment day of A-2 and used to collect sum of Rs. 100/- or Rs. 200/- for his expenses. It is also the version of the prosecution that one year prior to the incident, there was rumor that the deceased developed illicit intimacy with one Gajja Sambaiah, a badili filler of Padmavathikhani, resident of 7 incline and on that A-2 also started suspecting fidelity of the deceased and was subjecting her to cruelty by beating her. Two or three times, panchayats were held and it was resolved that both husband and wife should forget their past history and vices and lead normal life. It is also the version of the prosecution that the deceased continued her illicit intimacy with Gajja Sambaiah,, which came to the notice of the relatives of the deceased and also the accused. Two or three times, panchayats were held and it was resolved that both husband and wife should forget their past history and vices and lead normal life. It is also the version of the prosecution that the deceased continued her illicit intimacy with Gajja Sambaiah,, which came to the notice of the relatives of the deceased and also the accused. On 08-03-1994, A-1 visited the house of A-2 from Yellandu being the payment day and a-2 was not available, A-1 enquired the deceased about A-2 and left for 5 incline where he met his brother, had conversation, borrowed Rs. 100/ -. Subsequentthereto, both the accused attended the obsequies of one sripathi Mallaiah, paternal uncle of the deceased-Sukanya. During the funeral procession, the friends and the relatives of the accused of the locality of 7 incline jeered and heckled at A-1 tarnishing his image that his sister-in-law still has been continuing illicit intimacy with Gajja Sambaiah, by that a-1 grew wild, met his brother-A-2, informed him that he will do away with the life of the deceased and since she brought down their image in the society. Subsequent thereto, a-2 went to the house, and after sometime a-1 went to the house of A-2 at about 18. 00 hours and could find that his sister-in- law-deceased was sitting on a cot and conversating with her husband, who was sitting on the floor, and A-1 who was in a furious mood, picked up a "mancham Kodu" and beat the deceased-Sukanya with it on left side of her head, causing bleeding injury to which she fell down of her back on the cot. A-1 brandished a knife and stabbed with it on her ribs, below left breast and on stomach and caused stab injuries. A-2 witnessed the incident, but did not resist A-l nor went to the rescue of the deceased and thus, indirectly aided hrs brother in killing his wife, uttering and encouraging his brother-A-1 to kill the wretched woman ruthlessly. A-1 hidden the weapons and left the spot. While A-1 was stabbing the deceased blood oozed out from the injuries of the deceased was sprinkled on his clothes. The same was witnessed by p. W. 2 and it was informed to P. W. 1, who in turn had lodged Ex. P-1-complaint to the police. A-1 hidden the weapons and left the spot. While A-1 was stabbing the deceased blood oozed out from the injuries of the deceased was sprinkled on his clothes. The same was witnessed by p. W. 2 and it was informed to P. W. 1, who in turn had lodged Ex. P-1-complaint to the police. ( 4 ) THE Additional Judicial First Class magistrate, Kothagudem had taken cognizance of the same as P. R. C. No. 20 of 1995 and committed the same to the Court of session and the same was made over to the learned Additional Sessions Judge, khammam. The learned Judge recorded the evidence of P. Ws. 1 to 9 and marked exs. P-1 to P-12, and M. Os. 1 to 11 and recorded findings, and ultimately, convicted the appellants/accused 1 and 2 as referred to supra under Section 304-I I PC and under section 304-I read with Section 34 IPC respectively. ( 5 ) SRI C. Praveen Kumar, Counsel representing the appellants-accused 1 and 2 made the following submissions. The learned counsel would submit that P. W. 2 is the son of A-2 and deceased and except the evidence of this witness, there is no other evidence available on record. The learned Counsel pointed out several inherent improbabilities in the version of the prosecution. The learned counsel had pointed out that A-2 was convicted only on the ground that he had not prevented Al from perpetrating the crime on the fateful day. The learned Counsel would contend that the evidence of P. W. 2 is highly doubtful on this aspect, especially in the light of the 164 Cr. P. C statement made by him before the learned Magistrate. The learned counsel also would point out that there is an admission even by P. W. 2 that usually he would be attending tuitions in between 5. 00 to 8. 00 p. m. and though P. W. 1 deposed that P. W. 2 did not attend tuition on that particular day, P. W. 2 had not deposed about the same and he also deposed that A-1 came in a drunken condition and beat the deceased. 00 to 8. 00 p. m. and though P. W. 1 deposed that P. W. 2 did not attend tuition on that particular day, P. W. 2 had not deposed about the same and he also deposed that A-1 came in a drunken condition and beat the deceased. The learned Counsel also had pointed out that the version of the prosecution that A-1 hit the deceased with the "mancham Kodu" also cannot be believed in the light of the evidence of the Doctor- P. W. 7 in as much as all the injuries are only stab injuries and no corresponding injury relation to the alleged hitting of Mancham Kodu has been spoken to by P. W. 7. The learned Counsel also had pointed out that in the light of the postmortem certificate the semi digested food, the very time of incident, appears to be doubtful in as much as the version of the prosecution is that incident happened at 6. 00 p. m. The learned counsel pointed out several inherent improbabilities in the version of the prosecution in this direction. The learned counsel also pointed out that P. W. 3 did not state in her prior statement that p. W. 2 was going, crying and weeping and hence, the evidence of P. W. 3 is also doubtful. The learned counsel would conclude that at any rate, the conviction as against A-2 definitely cannot be sustained even in the light of the evidence available on record. ( 6 ) PER contra, the learned Additional Public prosecutor would content that minor discrepancies would not alter the situation and that the incident as such had been well established and the presence of P. W. 2 along with A-1 and A-2 in the house on that particular day definitely cannot be disbelieved on the mere ground that usually P. W. 2 will be attending tuitions at the relevant time. The learned Additional Public Prosecutor also had pointed out the evidence of P. W. 1 -grand father of P. W. 2, who deposed that this grandson (P. W. 2) did not attend the tuition on that particular day, and this is just, but natural. The learned Additional Public Prosecutor also had pointed out the evidence of P. W. 1 -grand father of P. W. 2, who deposed that this grandson (P. W. 2) did not attend the tuition on that particular day, and this is just, but natural. The learned Additional Public prosecutor also had pointed out that this child witness is not of tender age, but having sufficient understanding, and A-1 attacked the helpless woman in the house in the presence of A-2, and A-2 never made any attempt at least to come to the rescue of the deceased and this would definitely establish section 304-I read with Section 34 IPC. The learned Additional Public Prosecutor also pointed out that it is not the case of the prosecution that the death was caused only due to hitting by Mancham Kodu, but stabbing with a knife too, and the same is well established by the medical evidence. On the aspect of the postmortem certificate and semi-digested food, the learned Additional public Prosecutor would submit that this discrepancy is remote relevancy in the light of the time factor involved. The learned additional Public Prosecutor would conclude that in the facts and circumstances, the conviction and sentence imposed are to be confirmed. ( 7 ) P. W. 1 -father of the deceased and grand father of P. W. 2, father-in-law of A-2 lodged Ex. P-1-complaint. It is no doubt true that in Ex. P-1-complaint, it was stated that the cause of the death of his daughter was due to suspicion of her character and his son-in-law along with his brother killed his daughter with the knife. It is pertinent to note that p. W. 1 was not the eye witness and on the information furnished by P. W. 2, P. W. 1 lodged ex. P-1 -complaint. P. W. 1 deposed that on 08-03-1994 evening at 6. 00 p. m. , P. W. 2 came to his house and informed him that a-1 killed his mother and stabbed her and immediately P. W. 1, P. W. 2, his wife, son and daughters together rushed to his daughter s house and found his daughter lying in the verandah floor on the cot with injuries, and then, he went to the II Town Police Station, kothagudem, and presented Ex. P-1- complaint, and Ex. P-1- complaint, and Ex. P-2 is five photos with five negatives, showing the house and the dead body of his deceased daughter-Sukanya in the house of the accused. This witness in his cross-examination deposed that there are about ten persons, who gathered at the house of his son-in-law by the time P. W. 2 informed them and they reached the house of A-2. He further deposed that P. W. 2 was studying 5th class in 1994 and he was also going to tuitions for academic improvement from 5. 00 p. m. onwards every day and his tuition time regularly was 5. 00 to 8. 00 p. m. However, this witness added tnat on that day his grand son had not gone to the tuition. Several suggestions were put to this witness and the same were denied. ( 8 ) THE evidence of P. W. 2 is crucial. The learned Judge put some preliminary questions and being satisfied that he was capable of understanding, had proceeded to record the evidence of P. W. 2. This witness deposed that the deceased is his mother, a-2 is his father and A-1 is the younger brother of A-2 and P. W. 1 is his mother s father, and that his mother was killed about four yeas back by A-1 at 6. 00 p. m, at their house and at that time, his father-A-2, his mother (deceased) and this witness P. W. 2 were in the house and A-l came just before - their house, beat his mother with Mancham kodu-M. O. 1 anda-1 also stabbed his mother with knife. He deposed that his father simply watched the incident without interference and that out of fear and panic, he rushed from his house to the house of P. W. 1 and he informed the incident, which had witnessed. He further deposed that P. W. 1, his grandmother and his mother s sisters and brother came along with him to the house. He deposed that Ex. P-2 are the photos of the house and the dead body of the deceased. In the cross-examination, this witness deposed that he was studying 5th class and was attending tuitions for all subjects from 5. 00 to 8. 00 p. m. and on that day, they had taken meals including his mother in the noon time and they used to take night meal after completing tuitions on returning home. In the cross-examination, this witness deposed that he was studying 5th class and was attending tuitions for all subjects from 5. 00 to 8. 00 p. m. and on that day, they had taken meals including his mother in the noon time and they used to take night meal after completing tuitions on returning home. This witness also deposed that A-1 stabbed his mother many a time with knife and he had seen the same and that the knife is not a cooking knife. This witness also deposed that by the time, he rushed out after seeing the incident, A-1 was at their house and by the time, they returned with P. W. 1 and others, a-1 was not at their house and by the time they came to their house, the nearby people also were there. He further deposed that in ten minutes P. W. 2, P. W. 1 and others came to the house from P. W. 1 s house. To a question put to this witness that "have you raised cries?", this witness gave answer that it was while I was going to my grand father s house I was raising cries . P. W. 2 also deposed that he did not raise cries when a-1 beat and stabbed his mother, and that his younger brother had gone to tuition at that time. He had denied the suggestions that he had not witnessed the occurrence at all. he had denied the other suggestions also. Though 164 Cr. P. C statement was recorded, the learned Munsif Magistrate, who had recorded the statement had not been examined. ( 9 ) P. W. 9-CIRCLE Inspector of Police, kothagudem in his cross-examination deposed that in 164 Cr. P. C. statement of p. W. 2 recorded by L. W. 24, P. W. 2 stated that on that day evening A-2 beat P. W. 2 and the deceased came to the rescue of P. W. 2, thereby A-2 beat the deceased and the deceased when sat on the cot, Al came there, took cot leg and with that he dealt a blow on the head of the deceased and when a-2 intervened, A-1 pushed A-2 and with knife A-1 stabbed the deceased on her stomach and his mother died instantaneously. On the strength of the statement, the learned counsel for the appellants-accused 1 and 2 made submissions at length to the effect that the version of the prosecution that A-2- husband of the deceased was only a silent spectator or in a way abetted or instigated a-1 to commit the offence or he shared common intention so as to attract section 34 IPC, definitely cannot be sustained. ( 10 ) P. W. 3 deposed that on the date of incident, when they were watching T. V, p. W. 2 was going weeping saying his mother was killed. No doubt, P. W. 9 deposed that it is true that P. W. 3 did not state before me that while she was witnessing the Television, she heard the weeping of P. W. 2 and came out. On the strength of this contradiction, it was contended that the evidence of P. W. 3 also cannot be relied upon. ( 11 ) P. W. 4 deposed about some panchayat held in the presence of certain elders, who advised both A-2 and the deceased to forget the disputes and lead a happy life. ( 12 ) P. W. 5 deposed that the police seized m. Os. 2 to 4-clothes of the deceased in their presence and Ex. P-3 is the panchanama prepared by the police and attested by this witness and two others. Ex. P-4 is the scene of offence panchanama and he attested ex. P-3 and P-4. ( 13 ) P. W. 6 deposed that at the request of the police, he asked A-l for disclosure and he had taken them to 7 incline and to Renugutla bodyala to the fields and shown a knife-M. O. 9 and the same was seized by the police from him. He further deposed that A-1 had taken him to the house of A-2, and there from he brought M. O. 1 cot leg and handed over the same to the police and the same was also seized by the police and he had taken them to Yellandu and from his house, he brought his clothes i. e. , pant and shirt which are m. Os. 10 and 11 and the same were seized by the police in his presence. He deposed that he attested Ex. P-5-panchanama, ex. P-6-panchanama for recovery of cot leg, ex. P-7-panchanama for recovery of knife and Ex. P-8-panchanama for recovery of m. Os. 10 and 11 and the same were seized by the police in his presence. He deposed that he attested Ex. P-5-panchanama, ex. P-6-panchanama for recovery of cot leg, ex. P-7-panchanama for recovery of knife and Ex. P-8-panchanama for recovery of m. Os. 10 and 11 from A-1. ( 14 ) P. W. 7-doctor deposed that on 09-03-1994 on the requisition received from circle Inspector of police, Kothagudem, he had conducted autopsy over the dead body of the deceased and noticed the following injuries: (1) Stab injury on scalp 2" above left ear 2" x 1" x 1" sharp simple. (2) Stab injury below Right costal margin in Anterior Axillary line 1" x 1" deep penetrated in to abdomen 1x1x1". (3) Stab injury 1" below the left nipple 1" x 1" in mid clavicular line. (4) Stab injury below injury No. 2 1" x 1" in mid clavicular line. (5) Stab injury 1" midial to injury No. 3 1x1". (6) Stab injury " below injury No. 5 1x1". (7) Stab injury below left costal margin 1"x 1". (8) Stab injury in the Xipi Sternal Region 1"x1". (9) Stab injury " below injury No. 8 1"x1". (10) Stab injury " below injury No. 9 1" x1". (11) Stab injury " below the injury no. 10 1"x1". (12) Stab injury 3" above the left side of umbilicus 1"x1". All the injuries are ante-mortem caused by sharp heavy knife like object except injury no. l all other injuries are grievous. The internal injuries as deposed are: internal Injuries on dissection of skin over the chest and abdomen all the injuries 2 to 12 found deep penetrated into Thorosic and abdominal cavities injuring left lung. Pericardial sacis with 4 puncutres. There is a fracture of left ribs 3 to 7 at Sterno costal junction. There is a rupture of lower part of left lobe of liver and 5 punctures to the stomach seen with expulsion semi digested blood stained food in the paritonial cavity. Approximate time of death was between 10 to 12 hours prior to the autopsy and the cause of death was due to shock and haemorrhage due to multiple grievous injuries above mentioned. The injuries are sufficient to cause death of any human being in the ordinary course of nature. Ex. P-9 is the Postmortem examination report with opinion. Approximate time of death was between 10 to 12 hours prior to the autopsy and the cause of death was due to shock and haemorrhage due to multiple grievous injuries above mentioned. The injuries are sufficient to cause death of any human being in the ordinary course of nature. Ex. P-9 is the Postmortem examination report with opinion. This witness deposed that for complete digestion of food it will take 2 to 3 hours. It is after 1 hour, there may be semi digested food. In the light of this cross-examination, certain submissions were made that in view of the medical evidence, it is doubtful whether the incident could have happened at 6. 00 p. m. as alleged by the prosecution at all. ( 15 ) P. W. 8 is the Sub-Inspector of Police, and he received Ex. P-1-complaint and registered the same as Crime No. 57 of 1994 and handed overthe file to the Circle Inspector for investigation. ( 16 ) P. W. 9-Circle Inspector of Police had deposed in detail about all the aspects relating to the investigation and recording of 164 cr. P. C statement of P. W. 2 by the Principal district Munsif Magistrate, Kothagudem, (L. W. 24 ). ( 17 ) ULTIMATELY, the picture which emerges is that the scene of offence is the house of a-2 and A-1 in a drunken mood came to the house on the fateful day, hit the deceased with Mancham Kodu and then stabbed her ultimately causing the death. Except the evidence of P. W. 2, there is no other evidence in relation to what actually had happened in the house of A-2 on the fateful day. No doubt, serious attempt was made by the learned counsel representing the appellants to show that the very presence of P. W. 2 at the spot may have to be doubted in the light of his own admission that normally, regularly, everyday, he would be attending tuition at that time. The evidence of P. W. 2 is natural and convincing. P. W. 1 -grandfather to whom the information was immediately furnished by P. W. 2, had deposed that on that day, his grandson- p. W. 2 did not attend the tuition. The evidence of P. W. 2 is natural and convincing. P. W. 1 -grandfather to whom the information was immediately furnished by P. W. 2, had deposed that on that day, his grandson- p. W. 2 did not attend the tuition. It is no doubt true that it was not spoken to by P. W. 2 nor any attempt was made to elicit any information in this regard from P. W. 2, but by that itself, the very presence of P. W. 2 at the spot on the day cannot be disbelieved. ( 18 ) P. W. 3 is yet another witness, who deposed about P. W. 2 going weeping raising cries that his mother was killed. This is exactly just what had happened immediately after the incident. A contradiction pointed out in the evidence of P. W. 3 is not of such a nature to discredit the trustworthiness of P. W. 3. It is but natural that the young boy-P. W. 2 might have thought of his grand father only, immediately in view of the shocking incident that is A-1 stabbing his mother. The incident as such definitely cannot be doubted. The discrepancy pointed out in the medical evidence relating to the semi digested food also cannot be taken as a serious infirmity so as to doubt the happening of the incident at 6. 00 p. m. ( 19 ) (1) In Gurucharan Singh v. State of punjab the Apex Court while dealing with falsus in uno falsus in omni bus, held that, "merely because two of the four accused have been acquitted, though the evidence against all of them, so far as the direct testimony went, was the same it does not necessarily follow that the other two must be similarly; acquitted. Where the lower Court had differentiated the case of the accused who had been acquitted from the other two on the ground of absence of motive in the former case and in addition to that the evidence of the witnesses as against the convicted accused was consistent and not shaken by cross-examination there is no sufficient reason for the appellate Court to go behind the finding which was based by the lower Court on that evidence. " (2) Reliance was placed in Bharwada bhoginbhai Hirijibhai v. State of Gujarat, it was held that. "over much importance cannot be given to minor discrepancies. " (2) Reliance was placed in Bharwada bhoginbhai Hirijibhai v. State of Gujarat, it was held that. "over much importance cannot be given to minor discrepancies. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so when all the important "probabilities- factor" echoes in favour of the version narrated by the witnesses. " (3) Reliance was also placed in Balwanth singh v. State of Haryana, wherein the Apex court held that:"the mere fact that the injured prosecution witnesses are related to each other would not be a sufficient ground for discrediting their testimony. " (4) Section 34 I PC reads as hereunder:- act done by several persons in furtherance of common intention:-"when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. " ( 20 ) A-2-HUSBAND of the deceased was convicted under Section 304-1 read with section 34 I PC. It is pertinent to note that there is no legally acceptable evidence that there was any deliberate preplan in between a-1 and A-2 to do away with the life of the deceased. The prosecution had not placed any evidence in this regard. Apart from this aspect of the matter, the earliest version of p. W. 2 before L. W. 24-Principal District Munsif was to the effect that A-2 intervened on the fateful day when his brother A-1 in a drunken mood entered the house and have perpetrated the crime even to the surprise of a-2. Merely because there was some dispute or some panchayat between the husband and wife previously, in the absence of any evidence in this regard, and especially in the absence of any kind of overt act or conduct attributed on the part of A-2, recording of finding that keeping quiet or not going to the rescue of the wife would attract the ingredients of Section 34 IPC, in the considered opinion of this Court, cannot be sustained, especially in the light of the earliest version of P. W. 2. It is pertinent to note that P. W. 2 is a child witness, though not of tender age, and the incident as such no doubt had been proved by the prosecution, but definitely on the material available on record, this Court is satisfied that Section 304-I read with section 34 IPC had not been established as against A-2. It is also pertinent to note that the investigation had not proceeded to investigate the matter in this direction, forthe reasons best known and no acceptable evidence is forthcoming. Hence, this Court is left with no other option except to arrive at a conclusion that the prosecution failed to establish the guilt of A-2 (husband of the deceased) under Section 304-I read with section 34 IPC, and accordingly, A-2 is entitled for an acquittal. ( 21 ) SO far as A-1 is concerned in the light of the clear acceptable evidence of P. W. 2 corroborated up to some extent by the evidence of P. W. 3 and also the medical evidence, there cannot be any doubt that the incident as spoken by P. W. 2 did occur. Detailed findings had been recorded that a-1 is guilty of an offence under Sec. 304-I ipc and this Court does not see any reason to disturb the said findings so far as it relates to A-1 is concerned. However, it is brought to the notice of this Court that his wife and tender children are dependant upon him and in a drunken mood on the fateful day, this offence was perpetrated by A-1. ( 22 ) IN the result, the conviction imposed against A-1/lst appellant by the Additional sessions Judge, Khammam, in Sessions case No. 80 of 1995 on 02-05-1998 for the offence under Section 304-I IPC is hereby confirmed. But the sentence of imprisonment imposed by the learned Sessions Judge against him is modified and reduced to five years of rigorous imprisonment from seven years, and so far as payment of fine of rs. 1,000/- in default, to undergo two months rigorous imprisonment is hereby confirmed. Bail bonds shall stand cancelled. The 1st appellant/a-1 shall serve rest of the sentence and he is entitled to set off, if any, in accordance with law. 1,000/- in default, to undergo two months rigorous imprisonment is hereby confirmed. Bail bonds shall stand cancelled. The 1st appellant/a-1 shall serve rest of the sentence and he is entitled to set off, if any, in accordance with law. The conviction and sentence imposed against A-2/2nd appellant by the Additional sessions Judge, Khammam, in Sessions case No. 80 of 1995 on 02-05-1998 for the offence under Section 304-I read with section 34 IPC are hereby set aside and he is acquitted. Accordingly, the criminal appeal is allowed so far A-2 is concerned, and the same is dismissed so far as A-1 is concerned, subject to the modification of sentence referred to supra.