JUDGMENT (Per P. Durga Prasad, J.) This appeal is directed against the conviction and sentence passed in S.C. No. 430 of 2006 by the II Additional Sessions Judge, Guntur on 25-8-2008. 2. The appellant herein is the accused No.1 and he along with accused No.2 was prosecuted for the offence under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short "IPC"). 3. According to the prosecution, A-2 is the younger brother of A-1 and the deceased Gade Venkateswara Rao @ Bakkaiah had illicit intimacy with P.W. 4 for ten years prior to 19-6-2006 and at about four years prior to 19-6-2006, P.W. 4 discarded the deceased and developed illicit intimacy with A-1, due to which differences arose between A-1 and deceased. Three months prior to 19-6-2006, P.W. 4 has renewed her relationship with the deceased and it has become an eye-sore to A-1. On 17-6-2006, in the evening at about 8.00 p.m., when P.W. 4 was moving in the bazaar, A-1 called her and she informed the same to deceased and deceased picked up a quarrel with A-1 on the same night and the same was pacified by Chimata Punna Rao, Ganikapati Naga Veeranjaneyulu, Chimata Srinu @ Pasi and Chimata Rambabu and sent away both A-1 and the deceased. During the said quarrel, A-1 declared that he will do away with the deceased. Thereupon, he contacted A-2, who agreed to help A-1 in doing away with the deceased. In pursuance of their plan, on 19-6-2006 both the accused went to the graves situated Zilla Parishad High School in Pottur. A-1 armed with a hunting sickle and A-2 armed with stick and way-laid the deceased. At that time, the deceased and P.W. 5 came on one cycle and P.Ws. 1 and 2 are on another cycle were seen coming on the route. P.W. 6 went to the fields to answer calls of nature and noticed both the accused hiding there and stood noticing them. When the deceased reached near the graves, both the accused attacked the deceased. A-1 hacked the deceased on his forehead with a big hunting sickle and the deceased fell down from the cycle. A-2 beat the deceased with stick on the head, on the hands and legs indiscriminately. When P.W. 5 interfered, A-1 pushed her away. This was witnessed by P.Ws. A-1 hacked the deceased on his forehead with a big hunting sickle and the deceased fell down from the cycle. A-2 beat the deceased with stick on the head, on the hands and legs indiscriminately. When P.W. 5 interfered, A-1 pushed her away. This was witnessed by P.Ws. 1, 2 and 6 and on seeing them both the accused fled away from the scene of offence after throwing the sickle and stick in the thorny bushes. P.Ws. 1 and 2 informed the same to P.W. 3 and another, then they shifted the deceased to Government General Hospital, Guntur and from there to Peoples Trauma and Emergency Hospital, Kothapet, Guntur for batter treatment and the deceased succumbed to his injuries while undergoing treatment on the same day at 2.00 p.m. On the complaint given by P.W. 5, P.W. 11 has registered the case in Cr. No. 165 of 2006 under Section 302 read with Section 34 of IPC and took up the investigation and visited the scene of offence and drafted the observation report in the presence of P.W. 8 and another and seized the material objects from the scene of offence and proceeded to the scene and held inquest over the dead body of the deceased in the presence of P.W. 8 and another and recorded statements of the witnesses and on 29-6-2006 he arrested the accused in the presence of P.W. 9 and another and recorded his confessional statement and in pursuance of the said confessional statement he seized blood stained sickle and blood stained stick used by the accused from the thorny bushes in the Kornepadu konda under cover of panchanama and sent the accused for judicial custody. P.W. 7, the doctor, who conducted autopsy over the dead body of the deceased, died due to head injury. The material objects seized were sent to the chemical examination and after receiving of report, he filed the charge sheet against the accused. 4. The Sessions Judge has framed the charges under Section 302 of IPC against both the accused and they pleaded not guilty for the said charge. Subsequent to framing of the charge, A-2 was absconding and NBW was issued against him and the case against him is split up and registered as S.C. No. 5 of 2008. Hence, the trial was conducted against A-l only. 5. Subsequent to framing of the charge, A-2 was absconding and NBW was issued against him and the case against him is split up and registered as S.C. No. 5 of 2008. Hence, the trial was conducted against A-l only. 5. The prosecution in order to establish the said charge against A-l, examined P.Ws. l to 11 and got marked Exs. P-1 to P14 and M.Os. 1 to 8. No oral or documentary evidence was adduced on behalf of A-1 in defence. 6. Taking into consideration of said oral and documentary evidence, the Sessions Judge found A-1 guilty for the offence under Section 302 of IPC and convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000/-. In default to undergo simple imprisonment for one year. 7. Aggrieved by the said conviction and sentence, A-l therein has filed the present appeal. 8. Now the point that arises for consideration is whether the prosecution could establish the charge under Section 302 of IPC against A-l beyond reasonable doubt? POINT: 9. The counsel appearing for the appellant has pleaded that the evidence of P.Ws. 1 and 2 said to be eye witnesses to the occurrence, is not corroborated with the story of the prosecution and P.W. 5, who is the wife accompanied the deceased at the time of incident, has turned hostile to the prosecution and the recovery of the weapon at the instance of the accused was not established by the prosecution and, therefore, the accused is entitled to be acquitted. 10. The Additional Public Prosecutor, on the other hand, has pleaded that the eye witnesses P.Ws. 1 and 2 have categorically stated about the accused causing injuries to the deceased and medical evidence is supporting the oral evidence of P.Ws. 1 and 2 with regard to the cause of death of the deceased. He further pleaded that even though the recovery of weapon was not established by the prosecution as the direct eye witnesses P.Ws. 1 and 2 have specifically stated about causing of the injuries by the accused, the prosecution could able to establish the charge against the accused under Section 302 of IPC. 11. According to the prosecution, on the complaint given by P.W. 5, the wife of the deceased, the investigation was started by P.W. 11. 1 and 2 have specifically stated about causing of the injuries by the accused, the prosecution could able to establish the charge against the accused under Section 302 of IPC. 11. According to the prosecution, on the complaint given by P.W. 5, the wife of the deceased, the investigation was started by P.W. 11. But P.W. 5, who is the wife of the deceased, has turned hostile to the prosecution. The prosecution has mainly relied upon the evidence of P.Ws. 1 and 2. P.W. 1 has stated that on 19-6-2006 in the morning at 9.00 a.m. when himself and P.W. 2 were proceeding on a cycle to go to agricultural field, the deceased Bakkaiah/G. Venkateswara Rao and P.W. 5 were proceeding on their cycle ahead to them, suddenly both the accused came from graveyard armed with a knife and stout stick and A-1 assaulted the deceased with knife on the head once and when the deceased fell down on the ground, A-2 beat the deceased indiscriminately with stick and P.W.5, the wife of the deceased, has pleaded the accused not to assault her husband by touching their feet but they did not hear. After assault both the accused went away towards agricultural fields assuming that they killed the deceased and due to fear he has gone to his house and brought his parents to the spot and shifted the deceased to Government Hospital, Guntur and thereafter the deceased was shifted to Peoples Trauma Hospital, Guntur for better treatment. He further stated, after assault, the deceased was unconscious till his last breath and he identified M.O.1 as the knife used by A-1 and M.O. 2 as the stick used by A-2. The said oral evidence of P.W. 1 was supported by P.W. 2, who is said to be eye witness accompanied P.W. 1 at the time of incident. According to both the witnesses P.Ws. 1 and 2, the wife of the deceased, P.W. 5, was along with the deceased at the time of incident. But P.W. 5 has turned hostile to the prosecution and not supported the version of the prosecution. According to her, she received telephonic information at 9.00 a.m. that her husband was serious and has gone to Government General Hospital, Guntur and found the dead body of her husband. 12. But P.W. 5 has turned hostile to the prosecution and not supported the version of the prosecution. According to her, she received telephonic information at 9.00 a.m. that her husband was serious and has gone to Government General Hospital, Guntur and found the dead body of her husband. 12. According to the prosecution, the motive for the accused to commit the offence is the dispute between A-1 and the deceased is that the deceased was having illicit intimacy with P.W. 4. P.W. 4 admitted about her illicit intimacy with the deceased and thereafter developed illicit intimacy with A-1 and thereafter she discarded the illicit intimacy with A-1 and restored the same with deceased and because of that there was a dispute and quarrel took place between A-1 and the deceased. P.W. 1 also stated in his evidence that four days prior to the incident, there was a quarrel took place between A-1 and deceased with regard to the relationship of P.W. 4 and the neighbours pacified the quarrel. Thus, the prosecution could able to establish the motive for the accused to commit the offence. Now it has to be examined whether the accused is responsible for causing the death of the deceased. 13. P.W. 7, the doctor, who conducted autopsy over the dead body of the deceased has found the following injuries : 1. Chopped injuries measuring 6 x 2 x Bone deep obliquely placed with surrounding contusion of 10 x 2 x 1 cm present on left side of frontal area. The lower end of the injury is 2 cms. above the medical side of the left eye brow and upper end of the injury is on left parietal area of scalp. On cut section diffused sub scapular haematoma is present on left fronto parietal area of scalp with guttar fracture of skull measuring 5 x 2 x Brain deep; 2. Contusion of 10 x 10 x 3 cms. On left parieto occipital area of scalp. On cut section Depressed fracture in an area of 10 cms. On left parieto occipital area of skull; 3. Choppted injury of 5 x 1 cm. x Bone deep on left middle and posterior on front of occipital area of scalp; 4. Abrasion of 1 x 1 cm. On left parieto occipital area of scalp. On cut section Depressed fracture in an area of 10 cms. On left parieto occipital area of skull; 3. Choppted injury of 5 x 1 cm. x Bone deep on left middle and posterior on front of occipital area of scalp; 4. Abrasion of 1 x 1 cm. on right forearm; and according to him, the cause of death of the deceased is due to head injury and he gave the post mortem certificate Ex.P-4. The injuries 1 and 3 are chopped injuries and injury No.2 is a contusion and injury No.4 is an abrasion and injuries 1 to 3 are on the head of the deceased. According to P.W. 1, A-1 assaulted the deceased with a knife on the head once and P.W. 2 also has stated that A-1 suddenly came from the graveyard and attacked the deceased and gave him a blow causing head injury. Therefore, according to P.Ws. 1 and 2, A-1 only gave one blow on the head of the deceased but according to the doctor, who conducted post mortem examination over the dead body of the deceased, he has found two chopped injuries on the head of the deceased. Therefore, the oral evidence of P.Ws. 1 and 2 is not supported by the medical evidence of the doctor, P.W. 7. 14. According to P.Ws.1 and 2, A-1 assaulted the deceased with a knife and the prosecution has relied upon the evidence of P.W. 9 and 10 with regard to the recovery of the weapon at the instance of the accused. According to the investigating officer, P.W. 10, he arrested the accused on 29-6-2006 at 1.30 p.m. at Naga Sai Hotel bye-pass road, pothuru village in the presence of mediators and both the accused led them to Kornepadu donka near Pothuru village and A-1 produced M.O. 1 knife and A-2 produced M.O. 2 stick from the bushes stating that they used said weapons in the commission of the offence and he seized the same in the presence of mediator under Ex. P-8. P.W. 9 is the mediator for the said arrest and recovery of the weapons at the instance of both the accused. But according to P.W. 9, on 28/29-6-2006 both the accused were arrested at bye-pass road of Etukuru in his presence an in pursuance of the confession of the accused, the police have seized M.Os. P-8. P.W. 9 is the mediator for the said arrest and recovery of the weapons at the instance of both the accused. But according to P.W. 9, on 28/29-6-2006 both the accused were arrested at bye-pass road of Etukuru in his presence an in pursuance of the confession of the accused, the police have seized M.Os. 1 and 2 from a tiled house near the scene of offence at Pothuru. The owner of the said house is resident of Guntur and the same was recovered under cover of panchanama Ex.P-8. P.W. 8 is a mediator for the scene of offence panchanama, who has stated about the drafting of scene of offence panchanama in his presence Ex.P-5 by the police and further he has stated that the police seized M.Os. 1 and 2, knife and stout stick, under cover of panchanama Ex.P-5. Therefore, there is a discrepancy with regard to recovery of M.O. 1 at the instance of A-1. In view of the contradictions in the evidence of P.Ws. 8, 9 and 10, the prosecution could not establish the recovery of M.O. 1 at the instance of the accused. 15. According to the prosecution, P.W. 5 has lodged. the complaint with the police and P.W. 11, the Sub-Inspector of Police has stated that on 19-6-2006 at 2.30 p.m. he received the information about the admission of the deceased in the Peoples Trauma Hospital, Guntur, immediately he rushed to the hospital at 2.30 p.m. and in the hospital, P.W. 5 gave a written report Ex.P-13 to him and he returned back to the police station and basing on the said report, he registered the case in Cr. No. 165 of 2006. In Ex. P-13, she has stated that on 19-6-2006 in the morning at 9'O clock herself and her husband on one cycle and her brother's-in-law son Srinivasa Rao and Taya Lakshmayya on another cycle were proceeding to the southern side of the field and when they crossed the high school, A-1 and two other male persons at once came on the road saying abusively and A-1 hacked her husband with a hunting sickle on his forehead and due to the said blow her husband fell on the road. On that the remaining two persons beat her husband on his head, hands and legs. On that the remaining two persons beat her husband on his head, hands and legs. As per Ex.P-13, three persons are involved in the commission of the offence but the charge sheet is filed against two persons only. Moreover, the name of A-2 was not referred to in the said complaint. P.W. 5 has denied about her lodging the complaint Ex.P-13 and she has identified her signature Ex. P-l. Therefore, in view of P.W. 5, the wife of the deceased, who is said to be present at the time of the incident only with the deceased, has not supported the case of the prosecution. The evidence of P.Ws. 1 and 2 cannot be relied upon. Moreover, the oral evidence of P.Ws. 1 and 2 cannot be relied upon. Moreover, the oral evidence of P.Ws. 1 and 2 is not supported by medical evidence. In view of the above, the charge under Section 302 of IPC against A-1 is not established beyond reasonable doubt. Hence, A-1 is entitled to the benefit of doubt. 16. In the result, the Criminal Appeal is allowed and the conviction of the appellant/A-1 for the offence punishable under Section 302 of IPC and sentence of imprisonment for life and to pay a fine of Rs. 1,000/- in default to undergo simple imprisonment for one year, recorded in Sessions Case No. 430 of 2006, dated 25-8-2008 by the II Additional Sessions Judge, Guntur, is hereby set aside. The appellant/A-1 shall be set at liberty forthwith, if he is not required in any other case.