JUDGMENT : This is an appeal preferred by accused being aggrieved by the judgment and order of conviction dated 04.09.2012 passed by the learned Session Judge, Kodagu, Madikeri in S.C.No.27/2007 in which the appellant/accused is convicted for the offence punishable under Section 302 of IPC and also under Section 307 of IPC. For the offence punishable under Section 302 of IPC, he was sentenced to undergo life imprisonment and to pay fine of Rs.25,000/and in default of payment of fine to undergo rigorous imprisonment for two years ; and for the offence punishable under Section 307 IPC, he was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.20,000/and in default of payment of fine to undergo rigorous imprisonment for one year. 2. Being aggrieved by the judgment and order of conviction the appellant/accused is before this court in this appeal. 3. The brief facts of the prosecution case as per the complaint averments are that PW 1 filed a complaint that along with his family members he is residing in Nariandada village and he is doing agriculture. His brother K.D.Aiyappa was serving in the military. There was a dispute between the accused Somanna on one hand and the complainant and others on the other hand in connection with Iyne house room. On 12.12.2006 when Aiyappa the brother of the complainant came on leave, there was quarrel between themselves and the accused again with regard to Iyne house room. On 14.12.2006 at about 4.15 pm when the complainant and his wife K.S.Rukmini and Aiyappa, the brother of the complainant came from the land along with their cattle’s, all of a sudden the accused who was holding the gun in his hand fired at them. The pellets hit the back portion of Aiyappa. He collapsed there itself and pellets also hit the wife of the complainant on the right side of the head and chest portion and in the meanwhile accused Somanna again fired towards them and the said pellets hit the right thigh portion of the complainant. Complainant also fell down and Aiyappa, the brother of the complainant expired at the spot itself. After hearing the firing sound, Lava – CW.7 came to the spot and in the meanwhile the accused Somanna went away from the said place by holding the kovi (gun) in his hand. Complainant also fell down and Aiyappa, the brother of the complainant expired at the spot itself. After hearing the firing sound, Lava – CW.7 came to the spot and in the meanwhile the accused Somanna went away from the said place by holding the kovi (gun) in his hand. Thereafter, CW5 Ananta Kumar @ Kumar, CW11 Vasantha @ Jaya and CW15 Suraj shifted the complainant and his wife to Napoklu Government Hospital. The Medical Officer was not present when they were shifted to the hospital, so they were shifted to District Hospital at Madikeri. Because of the old enmity, in connection with the Iyen house room between the complainant, his brother and the accused persons, the said incident took place. As there was no conveyance facility, there is some delay in lodging the complaint. Hence, action may be taken against the accused persons for committing the murder of Aiyappa. 4. On the basis of the said complaint, a case came to be registered in Crime No.83/2006 for the offences punishable under Sections 302 and 307 of IPC and Sections 3 and 25 of the Indian Arms Act. 5. After conducting investigation, the Investigation Officer filed the charge sheet against the accused persons for the offences punishable under Sections 302 and 307 of IPC and also under Section 30 of the Indian Arms Act. 6. After hearing both the sides and also after considering the materials placed on record, the learned Sessions Judge framed the charges against the accused persons for the said offences and when the charge was read over and explained to the accused, the accused pleaded not guilty and claims to be tried. Hence, the matter was set down for trial. 7. In support of its case, prosecution in all examined 27 witnesses and produced 34 documents with sub-marking and got marked 20 material objects. 8. Thereafter, the accused has been examined under Section 313 of Cr.P.C. and his statement came to be recorded. On the side of the defence, one witness has been examined as DW1 and one document Ex.D1 got marked at the time of crossexamination of PW7. 9. 8. Thereafter, the accused has been examined under Section 313 of Cr.P.C. and his statement came to be recorded. On the side of the defence, one witness has been examined as DW1 and one document Ex.D1 got marked at the time of crossexamination of PW7. 9. After hearing the arguments of both the sides and also considering the materials, both oral and documentary, the learned Sessions judge convicted the appellant/accused for the offences punishable under Sections 302 and 307 of IPC, but not found guilty for the offence under Section 30 of the Indian Arms Act. 10. Being aggrieved by the judgment and order of conviction so also challenging the legality and correctness of the judgment on the grounds as mentioned at ground Nos.5 to 18 of the appeal memorandum, the appellant/accused is before this court. 11. We have heard the arguments of the learned counsel for the appellant so also the arguments of the Addl. SPP for the respondent/State. The learned counsel for the appellant/accused made the submission that looking to the prosecution material, there is no worth believable material placed by the prosecution to convict the appellant/accused for the said offence. Learned counsel also submitted that in case if the Hon’ble Court comes to the conclusion that there is worth believable material as against the accused persons, then alternatively, the Learned counsel also made the submission that the incident has taken place in a spur of moment, it is not intentional or deliberate act of the appellant/accused. The learned counsel also submitted that the appellant/accused is already in custody for more than 11 years. He also submitted he is suffering from some ailments. Hence, learned counsel submitted lenient view may be taken while imposing the sentence. 12. Per contra, the learned Additional SPP submits that it is not the case which took place in a spur of moment and he made the submission that looking to the crossexamination of the prosecution witnesses, more particularly PWs.1 and 2, there is no suggestion made to the witness that they have abused the appellant/accused and because of that reason, the appellant/accused enraged and fired at them. It is also the further submission of the learned Addl. SPP that it is not the single act of firing and even second time also there is firing of the gun by the accused. It is also the further submission of the learned Addl. SPP that it is not the single act of firing and even second time also there is firing of the gun by the accused. Therefore, he submitted that this itself clearly goes to show that it is the intentional and deliberate act to commit the murder of the deceased Aiyappa so also to commit the murder of PWs.1 and 2. Learned Addl. SPP further made a submission that case of prosecution is supported by the experts evidence so also the medical evidence. Hence, this itself convey that there is merit in the appeal and the same be dismissed by confirming the judgment of conviction, so also the sentence imposed by the learned sessions judge. 13. We perused the grounds in the appeal memorandum, judgment and order of conviction passed by the court below, oral as well as the documentary evidence placed by the prosecution during the course of the trial. Let us examine the materials placed by the prosecution to ascertain whether the learned Sessions Judge came to the right conclusion in the matter in holding that the appellant/accused is guilty for both the offences under Sections 302 and 307 of IPC. 14. PWs.1 and 2 are the injured eye witnesses to the alleged incident and Aiyappa is the own brother of PW1 who is the deceased in this case. Looking to the evidence of PW1, the complainant, wherein he has stated in the examination-in-chief that accused is the uncle, means brother of his father. PW2 Smt. Rukmini is his wife, deceased Aiyappa is his brother. Himself and his uncle are separated and residing separately. There was the division of their properties, so also there was a division in the house and one room came to the share of his father and they put lock to the said house. After constructing another house also they put the lock to the iyen house room and kept the key with them. The accused is residing in the share fallen to him in the iyen house room. Accused were picking up quarrel with them with an intention that they should not come to the iyen house room and they should not have the movement in front of the said house. They were picking up quarrel often. This was going on since 45 years. Accused were picking up quarrel with them with an intention that they should not come to the iyen house room and they should not have the movement in front of the said house. They were picking up quarrel often. This was going on since 45 years. His brother earlier also lodged the complaint against the accused persons. At that time, police called the complainant and they also called the accused Somanna and they warned the accused persons that henceforth they should not pick up the quarrel with the complainant and his brother in connection with the said property and at that time accused person gave an undertaking before the police that he will not do so. The relationship between the accused and the complainant was not cordial. On 12th December 2006, Aiyappa, the brother of the complainant came on leave. One week earlier to the said date, the accused put the fence to the said house. After the brother of the complainant came, both complainant and his brother went to the accused person and told him it is not proper to do so. Accused quarreled with them. Then they came back to the house. On 13.12.2006, the complainant and his brother together removed the fence. On 14.12.2006, himself and his wife Smt. Rukmini and his brother Aiyappa, when they were coming back along with the cattle from the land, the brother of the complainant was opening the gate at Kaimada. At that time, the accused came from the coffee estate of one Chengappa and abused the complainant and his brother in filthy language as they removed the fence and he fired with the gun which he was holding. Firstly, the pellets hit Aiyappa and some of the pellets also hit to the Rukmini. The accused fired for the second time and the said pellets hit the complainant and he sustained injuries. Aiyappa, brother of the complainant expired. The complainant and the wife of the complainant also sustained injuries and they also fell down and after hearing the screaming voice, the accused person went away from the said place holding the gun. In the meanwhile, CW7 came to the said place and then another person Vasantha also came there. They informed to both of them about the incident and informed to the people of the village. In the meanwhile, CW7 came to the said place and then another person Vasantha also came there. They informed to both of them about the incident and informed to the people of the village. When the people came to the said place, they shifted the injured to the hospital in a jeep. Even he has spoken about the dress worn by himself, his wife and the deceased. In the crossexamination, when it was suggested that there are many ways to go to the house of the complainant and the house of the accused, witness denied the said suggestion. Witness also deposed that the relationship between himself and his brother Aiyappa is good and cordial. But the relationship between himself and the accused person is not cordial. When his brother was in the military services, at that time also the accused used to pick up the quarrel often. Witness denied that his brother was giving false complaint against the accused person. Witness denied that the accused persons put the fence to the property which is fallen to his share. He has deposed that he sustained injuries on the back portion and his wife sustained injuries on the front portion and the deceased Aiyappa sustained injuries on the back. When it was suggested that when the brother of the complainant came on leave, he removed the fence, witness admitted that he voluntarily deposed that as there was obstruction for their movement, it was removed. He denied the suggestion that he has not seen who has fired at them. So also denied the suggestion that he has not seen the accused firing at them. He denied the suggestion that as there was enemity between himself and uncle, he is giving false evidence that he fired at them. The witness denied the suggestion that on the date of the incident accused Somanna and his son Keerti were not at all in the house. 15. PW2 one Rukmini, wife of Kuvendra deposed in her evidence in the similar way as deposed by PW1 that the accused was having enemity towards them in respect of the way and also the fencing. In the cross examination she deposed that on the date of the incident herself, her husband PW1 and her brother-in-law, were proceeding together with little distance. She sustained injuries on her head, face, back, chest portion and to the shoulders. In the cross examination she deposed that on the date of the incident herself, her husband PW1 and her brother-in-law, were proceeding together with little distance. She sustained injuries on her head, face, back, chest portion and to the shoulders. The pellets hit them from the hind side. She also deposed that the pellets hit them from the front side. When the pellets hit her she fell down. She denied the suggestion that who fired at them and she voluntarily deposed that it is the accused himself who fired at them. Therefore looking to the evidence of PW1 and 2 who are injured witness, they have spoken in detail about the firing at them by accused with the gun and because of the said firing they sustained injuries and in that process Aiyappa, the brother of the complainant fell down and expired at the spot. Even there is a lengthy cross examination of PW1 and 2. Nothing has been elicited from their mouth so as to disbelieve the case of the prosecution that it is the accused who fired at them and caused gun shot injuries. 16. We have also perused the evidence of PW3, who is the Asst. Director of FSL, Bengaluru, who deposed that on 16.01.2007 in connection with Napoklu Police Station in Crime No.83/2006, sixteen sealed articles and the requisition letter for conducting examination were sent to them and the seals in connection with the articles at Sl.No.3 to 10, 13 to 16 were intact and they were tallying with the sample seals sent by the investigating officer and medical officer. He opened the seals and he has examined the articles sent and he has narrated in detail about the articles which were contained in the said packets and also about his examination of the said articles. He also deposed that after examination, he has packed and sealed the said articles and used his final seal and sent for further examination. On 20.02.2007, he entrusted these articles to Sri. K.S.Shivakumar, P.C.318, in connection with the examination of the said articles. He has issued his report and the said report is at Ex.P.4 and it bears his signature and in his report he has given the reasons of his examination, which is as per Ex.P.5 and the sample seal is Ex.P.6. On 20.02.2007, he entrusted these articles to Sri. K.S.Shivakumar, P.C.318, in connection with the examination of the said articles. He has issued his report and the said report is at Ex.P.4 and it bears his signature and in his report he has given the reasons of his examination, which is as per Ex.P.5 and the sample seal is Ex.P.6. He has further deposed that though these articles were sent to him for examination, the post mortem report of Aiyappa was also sent to him. Looking to the materials, the injuries caused on the body of the deceased with the pellets were also the injuries found on the jerkin, i.e., Item at Sl.No.8 and also T-shirt at Sl.No.9 and they resembled with each other. In the crossexamination, he deposed that after firing the first time and to fire the second round only one or two minutes are sufficient. He admitted that in his opinion he has not mentioned that the articles sent by the investigation officer were in an intact position. But however he deposed that he had mentioned the same in Ex.P.5. He denied the suggestion that he has prepared the report only to help the case of the prosecution without examining the articles sent by the investigating officer and for the said case he has given the final report and opinion. 17. PW4 and 5 turned hostile and have not supported the prosecution case. PW6 though not turned hostile, during the course of crossexamination deposed that when she came to the spot, it was about 7.00 p.m. and police were present there. She denied that she does not know anything about the incident. She denied that she has deposed false. PW7 Lava @ Lavya deposed in his evidence that on 14.12.2006 in the evening at about 4.15 p.m. when he was in his house PW2 phoned to him and told that the uncle came to the house and asked him to come. Because of that reason he went to their house and when accused was proceeding near Iyen House, he heard firing of the gun two times. Hence he went towards the house of Shambu. When the doors of the house were opened, nobody were present in the house. Then he went towards Kaimada. At that time, accused came from the opposite direction holding the gun in his hand and at some distance PW2 Rukmini called him. Hence he went towards the house of Shambu. When the doors of the house were opened, nobody were present in the house. Then he went towards Kaimada. At that time, accused came from the opposite direction holding the gun in his hand and at some distance PW2 Rukmini called him. When he went nearby them, he saw that she had sustained the injuries to her face, chest and other parts and at a distance of about 20 ft. Aiyappa was lying sustaining the gun shot injuries. At a distance of about 4 – 5 ft. PW1 Shambu was lying sustaining the injuries. Aiyappa expired at the spot itself and when he enquired with PW.1 and 2, they told that accused fired at Aiyappa and caused his death and he fired at them also and caused injuries. In the crossexamination, PW7 deposed that police have not recorded his statement at the spot, but they recorded the statements of Shambu and Rukmini. When police enquired PWs1 and 2, he was also present. They shifted both of them to the hospital in the jeep. He does not know in the police station whether PW1 and 2 gave another complaint or not. He admitted as to that on December 13, 14 and 15, there was festival going on. But he denied the suggestion that at that time there will be firing of crackers. On the date of the incident when police came to the said spot, the mahazar was not written. PW8 one Anantkumar deposed in his evidence about shifting of the injured persons to the hospital for getting the treatment and he has also deposed that in his presence, mahazar was conducted as per Ex.P.7 and at the time of mahazar, police have collected the blood stained mud, sample mud, empty thota and wad pieces and he has also identified the said material objects as MOs.11, 14, 18 and 19. In the crossexamination, he deposed that he has not seen the mud and empty thota, wad pieces at the spot, but he denied the suggestion that for the first time he is seeing them before the court. He denied the suggestion that at the instance of PW1 and 2, he is giving false evidence. PW9 is one N.M.Ramaiah. He is the panch witness for the seizure of the clothes of deceased Aiyappa. He identified the shirt of the accused as MO.20. He denied the suggestion that at the instance of PW1 and 2, he is giving false evidence. PW9 is one N.M.Ramaiah. He is the panch witness for the seizure of the clothes of deceased Aiyappa. He identified the shirt of the accused as MO.20. In the crossexamination he denied the suggestion that in order to help PW1 and 2 he is giving false evidence. PW10, one K.S.Jagadish is the panch witness wherein he has stated that in connection with the seizure of the gun from the accused, police have obtained his signature. Police came to the house of the accused and from the house they have seized the gun. He has identified his signature on the mahazar at Ex.P.9 and Ex.P.9(a) and he has also identified MOs. 5 and 12. In the crossexamination, he denied the suggestion that these material objects were planted for the purpose of this case and has deposed falsely in order to help PW1 and 2. 18. PW11 turned hostile and not supported the prosecution case. PW12 is the panch witness for the seizure of the clothes of the injured under Ex.P.2 and he identified these clothes as M.O.1 to 4. Even in the crossexamination he denied the suggestion that as he is the relative of the injured persons and he is giving false evidence. He also denied the suggestion that on that day no clothes were seized in his presence and no mahazar was drawn at the instance of the police and he is giving false evidence. PW13 M.K. Chayaprakash also is the witness who spoke about the shifting of the injured persons to the hospital from the spot. PW14 has also spoken about the said facts. PW15 is the doctor, who conducted the post mortem examination over the dead body of the deceased, he has deposed that on 15.12.2006 in between 1.30 and 3.15 p.m., he conducted the post mortem examination over the dead body of one Aiyappa and he has spoken about the injuries that he has noticed. In the crossexamination he has deposed and admitted the suggestion as true that the probable time of death is not mentioned in the post mortem report. There were no exit wounds, but there are only entry wounds. In the crossexamination he has deposed and admitted the suggestion as true that the probable time of death is not mentioned in the post mortem report. There were no exit wounds, but there are only entry wounds. At the time of post mortem examination, 60 entry wounds are noticed on the dead body and he cannot say whether 60 pellets were there in the dead body. He admitted as true that some of the pellets might have remained in the dead body. The pellets removed from the dead body were identical in appearance. He admitted as true that some of the pellet injuries are round in shape and some of them were elliptical or oval in shape. He admitted the further suggestion as true that there was variation in size of the wounds. He cannot give the opinion as to whether the gun shot was fired from high altitude place or from plain area. The injuries found on the dead body were antemortem. He admitted the suggestion as true that it is not specifically mentioned that the injuries found on the dead body were antemortem, but he denied the suggestion that he has done the post mortem report as per the police instructions. 19. PW16, another doctor Dr. Ajith Kumar has been examined in connection with the treatment he has given to the injured Rukmini and also PW1 and he has spoken about the injury sustained by both these witness and the issuance of the injury certificate as per Ex.P.12 and 13. It is no doubt true that the prosecution further examined-in-chief all these witnesses and clarified the date and year put on the wound certificate Ex.P.12 and 13 and the witness deposed that because of over sight the date was wrongly mentioned. However, he also produced the accident register maintained in the District Hospital and produced the same before the court. Therefore only on the basis that the date has been wrongly mentioned in the wound certificates, Ex.P.12 and 13, the entire case of the prosecution cannot be disbelieved. The evidence of this witness, PW16 clearly goes to show that PW1 and 2 also sustained injuries and they are the injuries from the gun. Therefore only on the basis that the date has been wrongly mentioned in the wound certificates, Ex.P.12 and 13, the entire case of the prosecution cannot be disbelieved. The evidence of this witness, PW16 clearly goes to show that PW1 and 2 also sustained injuries and they are the injuries from the gun. We have also perused the evidence of the investigation officer who spoke about the investigation that he has conducted in detail and even looking to the cross examination of the investigation officer, we have not noticed any material so as to disbelieve the case of the prosecution. He has spoken about he interrogating the accused person and also about the accused removing and producing the shirt which he had worn and the same came to be seized under Mahazar as per Ex.P.8, which was also marked as M.O.20. The investigation officer also deposed in his evidence that accused led himself and panch witnesses to his house and produced one SBBL gun and empty cartridges and the licence of the gun and the same were seized under Ex.P.9 and even the material objects M.O.5 to 12 were identified. He has also spoken about the police constable P.C.247 who brought the clothes belonging to the deceased and produced the same before him and he has seized those articles under Ex.P.24. One jerkin, Tshirt, one banian, one track pant, one knicker were the clothes belonging to the deceased and they were marked as M.Os. 6 to 10. He also spoke about he visiting the district hospital at Madikeri on 16.12.2006 and seizure of the clothes of the deceased and his wife Rukmini and they are MOs. 1 to 4. In the cross examination, he deposed that the spot of incident was at a distance of 5 to 6 kms. The dead body was lying on the pathway. The house of the accused is at a distance of about 100 ft. towards South. He took the people who were gathered at the spot as panch witnesses. He denied the suggestion that he is not drawn the mahazar at the spot itself and he had created the said mahazar. He denied the suggestion that accused and his son were not at all in the house on that day. He also denied the suggestion that mahazar was drawn in the house of the accused persons. 20. He denied the suggestion that he is not drawn the mahazar at the spot itself and he had created the said mahazar. He denied the suggestion that accused and his son were not at all in the house on that day. He also denied the suggestion that mahazar was drawn in the house of the accused persons. 20. PW27 S.N.Suresh Babu, another Investigation Officer deposed in his evidence that on 14.12.2006, he took further investigation of this case and on the very same day he visited the spot, but as there was darkness, he deputed the police for watching the dead body and on 15.12.2006 he again went to the said spot and conducted the inquest mahazar over the dead body of Aiyappa and at that time he has seized the blood stained grass mixed mud, sample mud and wads in the presence of panch witnesses and inquest mahazar as per Ex.P.7. He has identified the material objects M.Os.18 and 19, so also M.Os.11 and 14. He also deposed that on the same day he apprehended the accused, brought him to the police station and after observing arrest formalities recorded his voluntary statement. He gave the voluntary statement as per Ex.P.33. There afterwards the accused led himself, his staff and the photographer to his residential house. There he secured two panch witnesses and the accused took out in the middle room, one single barrel gun and empty cartridges and produced before him. He seized them in the presence of the panch witnesses and the mahazar is already marked as per Ex.P.9. He has also spoken about the investigation and seizure of the other material objects in detail and also the steps that he has taken for sending the seized articles to FSL for getting the report and opinion. In the crossexamination he deposed that on the date of the incident, he went to the spot. It was dark, means it was 6.15 p.m. No one was there at the place of the spot. There were more than 45 injuries caused by the pellets entering into the body of the deceased. He does not know about the exit wounds because of the entry of the pellets. He has denied the suggestion that accused has not given the voluntary statement so also he has not produced the clothes that he was wearing. There were more than 45 injuries caused by the pellets entering into the body of the deceased. He does not know about the exit wounds because of the entry of the pellets. He has denied the suggestion that accused has not given the voluntary statement so also he has not produced the clothes that he was wearing. He denied the suggestion that on the blank paper he has obtained the signature of the accused. 21. Looking to the prosecution material, the case of the prosecution is firstly supported by the version of the eye witnesses, PW.1 and 2 who are also the injured witnesses and it is also supported by the medical and also forensic science laboratory documents and their oral evidence. The doctor who conducted the post mortem examination over the dead body also deposed that the injuries are because of the gun shot. So also the injuries sustained by PW1 and 2 are also from the gun shot. Therefore the learned Sessions Judge took all these aspects into consideration extensively and he has rightly come to the conclusion that the prosecution proved the charge under Section 302 as well as under Section 307 of IPC and he has rightly come to the conclusion in convicting the accused for the said charges. 22. So far as the defense evidence DW1 is concerned, we have perused the said evidence. One C.B. Hassan has been examined wherein he has deposed in examination-in-chief that he knows the accused who is of his native. Everyday the accused was going to his hotel to have coffee. Generally the accused was coming to his hotel at about 4 or 5 p.m. On the day of death of Aiyappa, the accused came to his hotel at 5.00 p.m. and after having the coffee he went away. In the crossexamination, he deposed that he cannot say on which day and which week Aiyappa expired. He cannot say on which week the accused came to his hotel to have the coffee. He cannot say which of the persons on which day at which time came to his hotel to have the coffee. But however he denied the suggestion that with an intention to help the accused he is making false evidence. Therefore, looking to his crossexamination, he cannot say the people who are coming to his hotel on which day, which time at what time. But however he denied the suggestion that with an intention to help the accused he is making false evidence. Therefore, looking to his crossexamination, he cannot say the people who are coming to his hotel on which day, which time at what time. How he remembered the accused going to his hotel on that particular day, itself shows that he is giving false evidence only to support accused. Hence, his evidence is not worth believable to expect that really the accused person had been to his hotel at 5.00 p.m. on the date of the incident. Hence, we hereby rejected the said evidence that it is not worth believable. 23. So far as the contention and the submission of the learned counsel for the appellant /accused that the incident took place in a spur of moment and hence the materials will not attract the alleged offence under Section 302 of IPC, at the most, it may attract the offence under Section 304I or II of IPC. In this regard, we have perused the materials. When it has come on record in respect of the Iyen House, there was a quarrel in between the complainant, complainant’s brother on one side and the accused on the other side. So there was enemity in between the two since long. On the previous day of the incident as the deceased Aiyappa removed the fencing put by the accused on the next day i.e., on 14th the incident took place. Except that he was carrying the gun with him, it is not only the single fire at the deceased and the injured, second time also he has fired from the said gun. This clearly goes to show that the act of firing by the accused is deliberate and intentional act to commit the murder of deceased Aiyappa as well as the complainant and his wife. But somehow, the complainant and his wife survived. Therefore the offence is only for making an attempt to commit their murder. Considering all these aspects of the matter, we are of the opinion that the offence come under Section 302 of IPC. Therefore the contention of the learned counsel for the appellant/accused cannot be accepted. 24. Perusing the judgment and order passed by the court below, we do not find any illegality in the judgment and order of conviction, so also the sentence imposed by the court below. Therefore the contention of the learned counsel for the appellant/accused cannot be accepted. 24. Perusing the judgment and order passed by the court below, we do not find any illegality in the judgment and order of conviction, so also the sentence imposed by the court below. No merit in the appeal. Accordingly appeal is hereby dismissed. Since the main appeal itself is disposed of, the question of considering the interlocutory application, I.A.No.1/2012 does not survive for consideration. Accordingly it is disposed.