JUDGMENT : M.R. Anitha, J. 1. The appeal is directed against the judgment and order dated 30.01.2016 rendered by the Additional Sessions Judge-I, Kalpetta in Sessions Case No. 116/2015 convicting and sentencing the 2nd accused under Sections 120-B, 449, 302, 307, 397 r/w. 34 IPC. 2. The prosecution case in short is as follows: On 31.01.2007 at about 12 midnight, the appellant - second accused along with the first accused, in furtherance of their common intention and criminal conspiracy to commit robbery and murder, trespassed into the temporary shed where deceased Asya and her son PW 2 had been residing and the 1st accused armed with pickaxe and the 2nd accused with a crowbar, with the preparation to commit robbery even by causing death of deceased and PW 2, who were sleeping in the temporary shed, hit at the head of the deceased Asya and her son PW 2 and inflicted fatal injuries to PW 2 and the deceased. When PW 2 and the deceased alarmed, they were again inflicted with fatal blows with deadly weapons resulting in the death of Asya and serious head injuries to PW 2. It is further alleged that the 1st and 2nd accused committed robbery of Rs. 4,000/- and gold ornaments worth Rs. 14,000/- in total out of which Rs. 1,000/- was taken by the first accused and spent for purchasing articles to his house and Rs. 3,000/- was kept by the second accused and out of the gold ornaments, the 2nd accused pledged the necklace in the Bank run by PW 12 at Kalpetta and obtained Rs. 4,300/- and the 2nd' accused gave Rs. 1500/-, Rs. 500/- and Rs. 5500/- respectively to PW 8, CW 21 and PW 9 and thereby the 2nd accused along with the first accused committed the offences aforementioned. 3. After the incident, PW 1 went to Padinharathara Police Station at about 11 a.m on 01.02.2007 and gave First Information Statement, certified copy of the same is marked as Ext. P1 (all the documents are certified copies since the originals were already produced in S.C. No. 154 of 2009). 4. PW 26 who was the Sub Inspector of Police, Padinharathara Police Station during the relevant time, recorded the First Information Statement and registered First Information Report, certified copy of the same is marked as Ext. P1 (all the documents are certified copies since the originals were already produced in S.C. No. 154 of 2009). 4. PW 26 who was the Sub Inspector of Police, Padinharathara Police Station during the relevant time, recorded the First Information Statement and registered First Information Report, certified copy of the same is marked as Ext. P1(a) (FIR was registered initially under Sections 449, 307 and 302 IPC) and thereafter, PW 30 took over the investigation of the case and examined the scene of occurrence through the experts and prepared the scene mahazar Ext. P9. At the time of preparing the scene mahazar, he seized M.O. 5 watch, M.O. 16 a broken mirror, M.O. 17 full-sleeve shirt, M.O. 18 blood smeared ash colour pant, M.O. 19 blood smeared underskirt, M.O. 20 a spade with blood smear on the handle, M.O. 21 chopper, blood smeared soil from the floor etc. Thereafter he prepared the inquest report at the District Hospital, Mananthavady at 3.30 p.m. and the inquest report is marked as Ext. P2. By describing in the inquest, he seized one pair of imitation ear studs M.O. 22, one fancy chain M.O. 23 worn by her, thread of cloth M.O. 24 and anklets M.O. 25 series. He also seized and sealed two pieces of hairs found on her left palm. Thereafter he questioned CWs 3 to 14. He also seized M.O. 26 nighty and M.O. 27 and M.O. 28 shawls. He arrested the 2nd accused on 06.02.2007 at 8 p.m. in the presence of PW 10 and CW 24 by preparing Ext. P12 arrest memo. Further he stated that on the examination of his body, from the left side of his shirt pocket, M.O. 7 purse was seized and on examining the same, currency notes worth Rs. 400/-, which was marked as M.O. 29 series, and receipt Ext. P14 found inside the purse, were seized. M.O. 8 lighter was also seized. All those documents were seized by describing in Ext. P13 seizure mahazar. He further recorded the disclosure statement of the 2nd accused and recovered M.O. 14 and M.O. 15 and those were seized, by describing in Ext. P18 seizure mahazar. The relevant portion leading to the recovery of M.O. 14 and M.O. 15 have been marked as Ext. P18(a). All those documents were seized by describing in Ext. P13 seizure mahazar. He further recorded the disclosure statement of the 2nd accused and recovered M.O. 14 and M.O. 15 and those were seized, by describing in Ext. P18 seizure mahazar. The relevant portion leading to the recovery of M.O. 14 and M.O. 15 have been marked as Ext. P18(a). Further he recorded the disclosure statement which lead to the recovery of crow bar and that crow bar was identified and marked as M.O. 6 which was seized by describing in Ext. P4 seizure mahazar and the relevant portion of the disclosure statement which lead to the recovery of M.O. 6 crow bar has been marked as Ext. P4(a). 5. The 1st accused was arrested and Ext. P39 is the arrest cum inspection memo prepared at that time. Thereafter confession statement of the 1st accused was recorded and in pursuance of the same recovered M.O. 9 wooden piece by describing in Ext. P15 seizure mahazar. The relevant portion of disclosure. statement of the first accused is marked as Ext. P15(a). Further he states about the disclosure statement given by the 2nd accused which lead to the recovery of necklace M.O. 1 from the 'Thamarachalil Bankers' that is run by PW 12. M.O. 13 is the cover in which M.O. 1 was kept and those were seized by describing in Exts. P16 and P17 respectively. Thereafter he filed a report stating the name and address of the accused and adding Sections 120-B, 449, 302, 397, 307 r/w Section 34 IPC. He questioned PWs 8, 9 and 21 on 08.02.2007. He seized Rs. 5,500/- produced by PW 9 by describing in Ext. P6 mahazar. The said Rs. 5,500/- was marked as M.O. 32 series. He also seized Rs. 1,500/- (M.O. 33 series) produced by PW 8 by describing in Ext. P7. So also Rs. 500/- (marked as M.O. 34) produced by PW 25 had been seized by describing in Ext. P8 seizure mahazar. Thereafter he collected Exts. P28 to P33 from the respective witnesses and also collected Exts. P21 and P22. He questioned PW 29 showing M.O. 6 on 09.02.2007. Further he collected Ext. P37 from PW 28 who treated PW 2. Ext. P42 series are the property list for producing the material objects before the court. Ext. P43 is the forwarding note for sending the material objects for chemical examination. P21 and P22. He questioned PW 29 showing M.O. 6 on 09.02.2007. Further he collected Ext. P37 from PW 28 who treated PW 2. Ext. P42 series are the property list for producing the material objects before the court. Ext. P43 is the forwarding note for sending the material objects for chemical examination. PW 29 produced the properties seized at the time of post-mortem and he filed the forwarding note for sending the same for examination. PW 6 produced Exts. P10 series and Ext. P11 before the court. He also seized the documents pertaining to a previous attack against the deceased and Ext. P24 is the intimation given to the Police in connection with the same and Ext. P23 is the statement given by the deceased and those were seized by describing in Ext. P25 seizure mahazar. 6. Further investigation was conducted by PW 27 who collected the chemical examination report and filed final report against the accused. Ext. P34 is the report issued from FSL, Serology Wing and Exts. P35 and 'P36 are the reports issued from FSL, Chemistry and Biology Wings respectively. 7. On filing the final report, the case was taken on file as S.C. No. 154 of 2009 and at that time, the present accused absconded and his case was transferred to LP register and was pending as L.P No. 11 of 2014. On 15.06.2015, he was arrested and produced before court and the case against him had been re-filed as S.C. No. 116 of 2015. On production of the 2nd accused before the court below and on finding that the charge already framed against the 2nd accused was defective, charge was re-casted after hearing both sides under Sections 120-B, 449, 302, 307 and 397 r/w Section 34 IPC, read over and explained to the 2nd accused. He pleaded not guilty and claimed to be tried. 8. On the side of the prosecution, PWs 1 to 30 were examined and Exts. P1 to P43 were marked. M.Os. 1 to 34 were identified and marked. 9. After the closure of the prosecution evidence, the accused was questioned under Section 313, Cr.P.C. He denied all the incriminating circumstances put to him and further added that he has been in jail for the last four years and he has not committed any offence. So allowing set off, he has to be permitted to live with his family. 9. After the closure of the prosecution evidence, the accused was questioned under Section 313, Cr.P.C. He denied all the incriminating circumstances put to him and further added that he has been in jail for the last four years and he has not committed any offence. So allowing set off, he has to be permitted to live with his family. There was no defence evidence apart from D1 and D2 marked during the cross-examination of PW 4 and 5. Thereafter both sides were heard and the court below found the 2nd accused guilty under Sections 120-B, 449, 302, 307 and 397 r/w Section 34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2 lakhs in default of payment of fine to undergo simple imprisonment for three years under Section 302 r/w Section 34 IPC, sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1 lakh in default to undergo simple imprisonment for 18 months under Section 307 r/w 34 IPC, sentenced to undergo rigorous imprisonment for seven years under Section 397 r/w Section 34 IPC, sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 25,000/- in default to undergo simple imprisonment for six months under Section 449 r/w Section 34 IPC and further sentenced to undergo rigorous imprisonment for three years under Section 120-B IPC. 10. Aggrieved by the conviction and sentence passed by the court below, the 2nd accused-appellant came up in appeal for various grounds stated in the memorandum of appeal. 11. According to the learned counsel for the appellant/second accused (hereinafter will be referred as accused), the judgment of the court below has been passed erroneously and without appreciation of evidence in a proper perspective and the case is based upon the confession statement of the accused which is not admissible in evidence. It is also his contention that PW 1, K. Soopy, the complainant, is the co-brother of the deceased and he is an interested witness and he has not seen the incident and has filed the complaint on hearsay knowledge and PW 2 is the son of the deceased, PW 4 is a neighbour, PW 5 is the daughter of PW 4 and PW 7 is the elder brother of the deceased and all are interested witnesses and their evidence cannot be acted upon. There are discrepancies in the evidence of PW 2 in this case than that had been given by him in S.C. No. 154 of 2009. So, the court below ought not have entered into a conviction for grievous crimes based upon such inconsistent evidence. 12. Learned Public Prosecutor, on the other hand, would contend that the allegation of house trespass, robbery and murder are proved by circumstantial evidence and recovery of the material objects and scientific evidence has also been collected to prove the involvement of the present accused. Hence no interference is called for in the order of conviction and sentence passed by the court below. 13. To prove the injuries sustained by the deceased and PW 2, the prosecution relies upon the evidence of PW 18, PW 19, PW 28 and also PW 29. PW 18 is the doctor who initially examined the deceased and PW 2 at Santhi Hospital, Padinharathara. He is running the said hospital and the deceased Asya and her son brought to his hospital and as informed by the nurse, he came to know that Asya was brought dead to the hospital and since the injuries sustained by PW 2 were grievous, he was sent to District Hospital, Mananthawady and there are no records in his hospital with respect to the treatment given to the deceased and PW 2. He also clarified during cross examination that he had not noted whether Asya was conscious since by the time he reached, they were about to be taken to the vehicle. 14. PW 19 is the Assistant Surgeon attached to District Hospital, Mananthawady on 02.01.2007. His evidence is that on that day, at about 2.30 a.m, he examined Asya, aged 28 years and issued the certificate which bears the signature and seal which is marked as Ext. P20 and the alleged history stated was somebody hit on her head during sleeping at 12 midnight on 01.02.2007 and further he stated that on examination the patient was conscious and oriented and the injury noted was lacerated wound scalp temporal region on right side 4 x 1 cm and it is also stated during cross-examination that the alleged cause was stated by the injured herself. 15. PW 28 is the doctor attached to Government Medical College Hospital, Calicut. 15. PW 28 is the doctor attached to Government Medical College Hospital, Calicut. His evidence is that on 01.02.2007 while working as Casualty Medical Officer in the Surgery Department, he examined one Shafi aged 14 years at 12.39 p.m. referred from the District Hospital, Mananthavady and he was admitted and treated in the hospital and he issued discharge certificate with respect to the patient and the discharge certificate is marked as Ext. P37 through him and the doctor would state that the CT scan, head showed; 1. Fracture bilateral parietal bone both sides 2. Fracture of nasal bone 3. Fracture petrous temporal bone left 4. Fracture squamous temporal bone rt. 5. Fracture ethmoid air cells 6. Fracture anterior and posterolateral wall of both nosilery sinus 7. Abrasion 1 x 1 cm lower jaw 8. Lacerated wound upper lip 1.5 x .5 cm. He would further depose that he was discharged on 14.02.2007. PW 28 would also depose that when he was questioned by the investigating officer, two weapons were shown to him. He further deposed that the injuries are of serious nature and if not treated, the patient may die. He also stated that the injury noted in the certificate is possible to be caused by M.O. 6 (crow bar). 16. PW 29 is the doctor who conducted postmortem on the body of deceased Asya. The ante-mortem injuries noted are as follows:- 1. Incised wound, 1.5 x 0.1 x 0.3 cm, oblique, along junction of right upper eyelid and eyebrow, at outer extreme, oblique, with upper inner sharpcut end 5 cm outer to midline and 0.9 cm below eyebrow, the other end tailing outwards and downwards superficially for 0.2 cm. 2. Incised wound, 1 x 0.2 x 0.3 cm, vertical, over right side of face, with upper sharp cut end 1 cm outer to outer end of eyebrow at 9'0 clock position, the other end 0.1 cm wide. 3. Incised wound, 0.8 x 0.2 x 0.2 cm, oblique, over right side of face, with upper outer sharp cut end 1 cm outer to upper end of injury number 2 at 10 O'clock position, the other end tailing downwards and inwards for 0.2 cm. 4. Incised separating oblique wound of right ear lobe, 1.4 x 0.2 x 0.6 cm, with upper back end at free border, 3 cm below top. 5. 4. Incised separating oblique wound of right ear lobe, 1.4 x 0.2 x 0.6 cm, with upper back end at free border, 3 cm below top. 5. Incised wound, 4 x 0.3 x 0.6 cm, oblique of right side of top of head, with ends sharp cut, with lower inner end 4.3 cm above outer angle of eye at 9'O'clock position. 6. Incised looking lacerated wound, 4 x 0.3 x 0.5 cm, oblique, over right side of back of head, with lower outer end 6 cm inner to top of right ear at 9 O' clock position. 7. Incised looking lacerated wound, 3 x 0.3 x 0.5 cm, are shaped, with concavity downwards, over right side of back of head, transversely oblique, with inner end 1.5cm above inner end of injury number 6 at 12'O' clock position. 8. Incised wound, 3.8 x 0.3 - 0.5 x 0.2 - 0.5 cm transversely oblique, over right side of back of head, encroaching over back of ear lobe, with lower outer end touching inner end of injury number 4. 9. Contused abrasion, 2.5 x 0.2-1.0cm, oblique, over back of right shoulder, with upper inner end 3 cm below shoulder tip at 8'O' clock position. 10. Contused abrasion, circular, 0.5cm in diameter, over back of right shoulder, 1.3 cm below inner end of injury number 9 at 6'0 clock position. 11. Multiple pinhead size abrasions, irregularly and moderately scattered over a transverse area 1.8 x 0.5 cm, over outer aspect of right thigh, 18cm above knee. 12. Abrasion, 2 x 0.8-1 cm, transverse; over left side of chest, with inner end 6 cm below nipple at 6'O' clock position. 13. Area of scalp at, around and between injury numbers 6 and 7 contused reddish, circular, 4cm in diameter, 0.5cm deep. Depressed comminuted fracture of right side of back of skull, over occipito parieto temporal area, 11 x 4-5 x 0.1-0.2 cm, with upper inner corner, 4cm outer to lambda at 3'O'clock position, with fissured linear transverse radiation from outer edge along squamous part of right temporal bone, forwards for 7cm. Dura underneath torn correspondingly. Brain (1260g) oedematous with pressure groovers around cerebellar tonsils and unci and with fluid blood in ventricles. Bilateral reddish fluid subdural 0.1-0.2 cm thick bleeding present. Reddish subarachanoid bleeding around occipital lobes and cerebelli". 17. Dura underneath torn correspondingly. Brain (1260g) oedematous with pressure groovers around cerebellar tonsils and unci and with fluid blood in ventricles. Bilateral reddish fluid subdural 0.1-0.2 cm thick bleeding present. Reddish subarachanoid bleeding around occipital lobes and cerebelli". 17. The doctor would also state that he was questioned by the Police in connection with the investigation of the case and the injury Nos. 1 to 8 and 13 could be caused using M.O. 6 and injury Nos. 1 to 4 and 8 could be caused in single action and injury Nos. 6, 7 and 13 are possible to be caused in another single action. He further states that injury Nos. 6, 7 and 13 could be caused by blunt part of M.O. 6 and injury Nos. 9, 10, 11 and 12 could be caused by fall and further that injury No. 13 was sufficient in the ordinary course to cause death and the opinion as to the cause of death was also that the deceased died of head injury, injury No. 13. 18. So, in view of the medical evidence coupled with the testimony of PW 2, the son of the deceased, we do't have any hesitation to concur with the finding of the court below that the death of deceased Asya was a homicide. As far as the injuries of PW 2 is concerned, the evidence of PW 28 and Ext. P37 would show that the injuries are on the vital part of the head and the doctor would also state that injury No. 2 could be caused by using M.O. 6 and the injuries noted on the skull may be caused due to a single action and he would also state that it could be caused by the use of M.O. 6 and his opinion is that if the injuries are not treated, the patient may die. The doctor did not state that the injuries caused to PW 2 are sufficient in the ordinary course to cause death. So, in order to find whether Section 307 IPC would be attracted with respect to the injuries caused to PW 2, the other attending circumstances also have to be looked into which would be discussed later. 19. The doctor did not state that the injuries caused to PW 2 are sufficient in the ordinary course to cause death. So, in order to find whether Section 307 IPC would be attracted with respect to the injuries caused to PW 2, the other attending circumstances also have to be looked into which would be discussed later. 19. The evidence of PW 2, the injured who is none other than the son of the deceased, on a careful scrutiny, would go to show that it could not be successfully challenged in spite of the lengthy cross-examination by the defence counsel. He would depose that himself and mother went for sleep and they used to ignite kerosene lamp during night. He also speaks about an incident occurred before one month of this incident during sleeping. On hearing the screaming of the mother and on looking at the mother, he saw blood oozing from her head and the neighbours rushed to the spot and at that time, the 1st accused brought his autorickshaw and the mother was taken to the Government Hospital, Mananthavady. She was admitted in the said hospital and while going to the hospital, the 1st accused told them that complaint need not be given to the Police and some nail might have touched on her head and they need not get into trouble by filing complaint. PW 2 also stated that thereafter the mother got discharged and they have decided to lay the foundation of the house on 31.01.2007 and the public undertook to help them in the matter and for that purpose, PW 1 and his wife had come. But the persons offered help did not come forward and hence the construction of the house could not be materialised and PW 1 and his wife went away at about 8 p.m. Further he deposed that, at about 8.30 p.m., himself and his mother went for sleep and the mother slept First and he was reading 'Kalikkudukka' in the light of kerosene lamp. He also stated that at that time, their shed was having a door made of cloth, on one side the nighty of the mother and on the other side, plastic sacks were used as door. He also stated that at that time, their shed was having a door made of cloth, on one side the nighty of the mother and on the other side, plastic sacks were used as door. He also deposed that on hearing the sound of removing the cloth, which was used as door, he woke up and he saw some movements in the door portion and saw accused Nos. 1 and 2 peeping them, lying inside the shed. He categorically stated that, in the light of the kerosene lamp, he identified them and being afraid of them, he put the blanket over his head and after sometime, accused Nos. 1 and 2 were found to be talking together on the side of his head. 20. That appears to be a normal conduct which could be expected of from a boy aged 14 years. The sound of removing the cloth door was also heard. Being scared, he did not move and after sometime, a forcible hit was sustained on his head and he became unconscious and while he regained consciousness, he was at the Government Medical College Hospital, Kozhikode. He sustained grievous injuries on the head, cheek and nose. 21. Though the learned counsel for the accused seriously disputed the veracity of the evidence of PW 2, on going through the cross-examination, it is seen that nothing could be brought out to disbelieve his evidence with regard to the presence of accused Nos. 1 and 2 on the fateful day just prior to the incident. Though a specific question was put to him that he is stating falsehood about the peeping to their house by the 2nd accused by removing the cloth, he categorically stated that he is saying the truth. 22. Even though a vain attempt was made to accuse PW 7, who is none other than the brother of the deceased and the uncle of PW 2, he stoutly denied all those questions though he admitted that there was an incident of setting their house to fire and though he was questioned as to whether he was called to the Police Station and threatened in that regard, he pleaded ignorance. But, PW 7, admitted that in connection with the burning of the house of the deceased, he was called to the Police Station and the deceased had given complaint to the Police in that regard. But, PW 7, admitted that in connection with the burning of the house of the deceased, he was called to the Police Station and the deceased had given complaint to the Police in that regard. But he categorically deposed that the Police had questioned him for half an hour, but nothing could be further brought out to show that he was in any way connected with that offence. So, what is brought out during his evidence is that the deceased is his younger sister and he also speaks about the incident of sustaining injury to the head of the deceased before one month of this incident. He would further depose that, at that time himself and others took her to District Hospital, Mananthavady. Though a vain attempt was made during his cross-examination to bring out that he had some financial stringencies during the time and though he admitted about some financial transaction and some scarcity of fund with him, nothing to indicate his involvement in this brutal act could be brought out. Though PW 2 admitted that when their catties trespasses into the property of PW 7, he used to scold them, nothing to indicate that due to the enmity of PW 7 towards 'the deceased, this incident had occurred could be brought out. On the other hand, nothing could be brought out though PW 2 was subjected to lengthy cross examination for discrediting his testimony with regard to the involvement of the accused herein and also the 1st accused. Moreover, he also sustained injuries, which have been described in previous paragraphs supporting his evidence about the attack by the accused after seeing them at the door. 23. The prosecution further examined PWs 4 and 5 who are the most natural witnesses normally expected to have come to the house of the deceased being neighbours. The evidence of PWs 4 and 5 are to the effect that PW 2 and the deceased are their neighbours. PW 4 stated that 10 cents of property in which the deceased was residing had been given by him for value to the deceased. He deposed that PW 2 and his son Shameer were going together to the school. He also stated that he had sold the property for Rs. 27,000/- to the deceased and out of which Rs. 19,000/- was paid and the balance amount was agreed to be paid in installments. He deposed that PW 2 and his son Shameer were going together to the school. He also stated that he had sold the property for Rs. 27,000/- to the deceased and out of which Rs. 19,000/- was paid and the balance amount was agreed to be paid in installments. He further stated that he came to know about the injury sustained to PW 2 and the deceased Asya from PW 5 who is none other than his daughter. He also deposed that after PW 5 went to the house of the deceased, she screamed and thereupon he along with the neighbours rushed to the spot and found the deceased and PW 2 with grievous injuries and immediately they took them in an autorickshaw to the hospital and PW 2 was taken to Medical College Hospital, Kozhikode and the deceased died by that time. This is evident from the scene mahazar Ext. P9. He further speaks about the theft of brass vessels. An attempt was also made during cross-examination of PW 4 by suggesting that at the time when he saw the deceased at her house, her nighty was in a raised position and there were no undergarments on her body at that time. It is also stated by him that after the divorce of the first marriage, the deceased had been living with another man though the second marriage was not conducted. He also stated that the house of the deceased was about 3/4 Kms away from his house. 24. PW 5 is the daughter of PW 4. She also states about her visit to the house of the deceased on the next day morning since PW 2 did not come for calling her brother for going to school. She found the deceased and PW 2 in a pool of blood and she categorically stated that she alarmed on seeing them and on hearing that, other people rushed to the spot and they took them to the hospital. She also stated that the deceased used to wear nigtie and was not in the habit of wearing undergarments. 25. Apart from the above, the investigating officer had, immediately after the arrest of the accused persons, questioned them and recorded their disclosure statement and effected recovery. 26. She also stated that the deceased used to wear nigtie and was not in the habit of wearing undergarments. 25. Apart from the above, the investigating officer had, immediately after the arrest of the accused persons, questioned them and recorded their disclosure statement and effected recovery. 26. After the arrest of the second accused, MO 6 crow bar was recovered as per the disclosure statement given by the second accused and the relevant portion of the disclosure statement leading to the recovery of MO 6 have been marked as Ext. P4(a).PW 16 is the witness in the seizure mahazar prepared for recovering MO 6. Evidence of PW 16 is to the effect that he is in acquaintance with the second accused and there was an instance of missing of crow bar used in his house and subsequently the second accused has taken the crow bar belonging to him. He also deposed that the police came with the second accused and took the crow bar and he identified MO 6 as his crow bar. He also stated that at that time, first accused was also present. During cross-examination, though several attempts were made by the learned counsel for the accused to challenge his evidence by suggesting that recovery was effected as per the joint statement of first and second accused, he categorically stated that it is the second accused who took MO 6 crow bar from the pond. The investigating officer, PW 30, also identified MO 6 as the weapon recovered as per the disclosure statement given by the second accused and the disclosure statement is marked as Ext. P4(a). 27. Further, prosecution examined PW 12 the witness in the seizure mahazar Ext. P17 which has been prepared while seizing MO 1 necklace from Thamarachalil bankers and PW 12 is the person who is running Thamarachalil bankers. He stated that he is in acquaintance with the second accused and the second accused has pledged a necklace in his bank and he identified MO 1 as the necklace. Further, he deposed that usually when gold is pledged, it would be kept in a brown cover and a bond also would be kept signed and receipt will be issued to the party who pledge the item. Further, he deposed that usually when gold is pledged, it would be kept in a brown cover and a bond also would be kept signed and receipt will be issued to the party who pledge the item. Further he deposed that investigating officer came and seized MO 1 and at that time he produced the bond and also the cover in which MO 1 was kept and the certified copy of the bond is marked as Ext. P16 and he also deposed that he has signed in the mahazar prepared while seizing MO 1 and Ext. P17 was the certified copy of the seizure mahazar. Though some questions were put to him with regard to the stock register kept in his office, he categorically deposed that on 3.2.2007 he was present in the bank. Some questions were also put to the effect that seal of the bank has not been affixed in Ext. P16. He categorically stated that since it is a bond which is being kept in their institution, seal will not be affixed. He also answered that in Ext. P14 also the seal and signature of the concern is not there. But he categorically stated that usually the ornaments will be kept in a cover, the seal and signature of their concern will not be affixed and only the name of the Company and loan number and details regarding the amount and date etc. are used to be stated. On evaluating his evidence, it could be seen that there is not even a suggestion is seems to have been put to point that this witness is an interested witness and he has got any enmity towards the accused so as to depose falsely against him. It is also pertinent to note that the fact that he is the owner of Thamarachalil bankers is not specifically challenged. So we do not find any reason to disbelieve the evidence of PW 12 and Ext. P16 bond and Ext. P14 receipt. 28. PW 10 is the witness who was examined to prove the arrest of the second accused. He deposed that he is in acquaintance with second accused and he has signed in the arrest memo prepared for arresting the accused and the arrest memo is marked as Ext. P12. 29. He also deposed that he had seen inspection on the body by the second accused. He has signed in Ext. He deposed that he is in acquaintance with second accused and he has signed in the arrest memo prepared for arresting the accused and the arrest memo is marked as Ext. P12. 29. He also deposed that he had seen inspection on the body by the second accused. He has signed in Ext. P13 seizure mahazar prepared for seizing the article at the time of body search. Some of the article like cigarette lighter, purse etc, have also been seized at that time. Ext. P14 is the copy of the receipt of pledging the gold ornaments. So the evidence of PW 12, coupled with PW 10, would prove the factum of pledging of MO 1 necklace by the second accused on 3.2.2007. 30. Prosecution further examined PW 9, who states that he is in acquaintance with the deceased and the second accused. It is also stated by PW 9 that after the death of Asya, the second accused had given Rs. 5500/- and he produced that amount before the police and police seized that amount. He has signed in that seizure mahazar, which is marked as Ext. P6. 31. PW 8 also states that the accused has given Rs. 1500/- to him and that was produced by him before the police. He has signed in Ext. P7 seizure mahazar prepared for seizing the amount. Though it was suggested that PW 8 has signed in the blank paper, he denied that version and nothing to discredit his testimony was also brought out during the cross-examination. 32. PW 13 is yet another witness who was examined on the side of the prosecution. He is in acquaintance with the accused and the deceased. His evidence is that, he had seen the investigating officer seizing shirt and dhothi from the house of the 2nd accused and that he identified the said shirt and dhothi as MO 14 and MO 15 respectively. 33. PW 11 was examined from the side of the prosecution to prove the recovery of article at the instance of the first accused. His evidence is that from the house of accused, MO 9 wooden piece was seized and he identified the same. He also deposed that from MO 4 box, one pair of earrings had been seized which were kept in it issued from Aameen jewellery. His evidence is that from the house of accused, MO 9 wooden piece was seized and he identified the same. He also deposed that from MO 4 box, one pair of earrings had been seized which were kept in it issued from Aameen jewellery. He identified the earrings (jimikki) as MO 2 series and MO 3 is the gold ring. MO 10 series is the golden ear-stud, spurious gold screw and one gold hook, MO 11 is the shirt, MO 12 is the dhoti and he has signed in Ext. P15 mahazar and Ext. P15(a) is the disclosure statement given by the first accused which led to the recovery of MO 9, MO 4, MO 2 series, MO 3, MO 11, MO 12 and MO 13. 34. So the recovery of MO 1 necklace on 3.2.07 as per disclosure statement given by the second accused and recovery of Ext. P14 receipt from the purse of the second accused while arresting him and the evidence of PW 12, the banker are clinching evidence to connect the accused with the offence. Recovery of MO 2 series, MO 3, MO 4 and MO 10 series at the instance of first accused on 7.2.07 after his arrest on 6.2.07 also corroborates with prosecution case. 35. The learned counsel for the accused on the other hand would contend that evidence of PW 2 in this case is in variance with the evidence tendered by him in the previous trial. He would also contend that some weapons like sword, MO 20 spade, MO 21 chopper etc., were seized from the place of occurrence and no investigation has been made in that regard. He would also contend that the witnesses, who have seen the deceased and PW 2 for the first time, ie, PW 4 and PW 5, would admit that while they saw the deceased for the first time on the next day morning, her nighty was in a raised position but no investigation in that line has been conducted. He would also contend that the witnesses, who have seen the deceased and PW 2 for the first time, ie, PW 4 and PW 5, would admit that while they saw the deceased for the first time on the next day morning, her nighty was in a raised position but no investigation in that line has been conducted. He would also contend that evidence of PW 7 would go to show that he was residing about 200 metres away from the temporary shed where the incident took place and it has come out from his evidence that during night on that day Arshad with whom he has got some business transaction, had come to his house and some of the people also at the instance of Arshad had come to his house and there was some compulsion demanding the money which is due from him to the said Arshad and at that time he went to the house of Kunji Poker and thereafter on 2.15 a.m. he returned to his house. According to the learned counsel, since his house is about 200 metres away from the house of the deceased, it is most unlikely that they did not hear the alarm of PW 2 and the deceased. 36. All these factors could have been considered if at all there was any attempt on the part of the defence during trial to suggest to any of the witnesses regarding the above factors, No question was seen to have been put to PW 2 regarding his different versions in the previous trial. No question was also put with regard to the seizure of the weapons from the place of occurrence. No question was also put to PW 7 as to whether he had heard any alarm from the house of the deceased. But in this context it is also relevant to note that the evidence of PW 2 is that he and his mother go to sleep at 8.30 pm and mother immediately slept and he was reading Kalikkudukka. The incident at the house of PW 7 is much after the alleged incident. He also stated that himself and Valayil Soopy came from Vythiri at about 9.30 pm and Soopy directly went to his house. It is at 1.00 am that Arshad from Thalasery and others came to his house. The incident at the house of PW 7 is much after the alleged incident. He also stated that himself and Valayil Soopy came from Vythiri at about 9.30 pm and Soopy directly went to his house. It is at 1.00 am that Arshad from Thalasery and others came to his house. So the incident in this case might have taken place before the coming of PW 7 to his house. That may be the reason why he did not hear the alarm. Ext. P32 scene plan also would indicate that though two houses are noted, the distance from the said house to the temporary shed, where the incident was taken place is not specifically stated. No question specifically also has been put in that regard to PW 24, the Village Officer, who prepared the plan. Moreover, the injury to PW 2 and the deceased are on the head. Normally, immediately after sustaining injury on the head, they might have become unconscious and they might not have got any time to make alarm. That may be the reason why nobody had come to know about the incident at the time of occurrence. So the evidence tendered by PW 2, the son of the deceased, who is an injured, prove the presence of the accused on the fateful day immediately before the incident at the door side. It has also brought out during evidence that the second accused is residing about 200 metres away from his house and he used to see the second accused occasionally also etc., would only strengthen the evidence of PW 2 with regard to the presence of the present accused and first accused at his house on that fateful day. 37. PW 2 further identified MO 1 necklace, MO 13 cover in which MO 1 was enclosed while pledging. They are also identified by PW 12, the banker with whom MO 1 was pledged by the second accused, on the third day of the incident, the certificate of bond has been marked as Ext. P16. PW 1, the sister's husband of the deceased, also identified MO 1 necklace, MO 2 series earrings and MO 3 ring of the deceased. Recovery of MO 2 series, MO 3 and MO 10 series at the instance of the first accused has also been proved through the examination of PW 11 who is a witness to Ext. P16. PW 1, the sister's husband of the deceased, also identified MO 1 necklace, MO 2 series earrings and MO 3 ring of the deceased. Recovery of MO 2 series, MO 3 and MO 10 series at the instance of the first accused has also been proved through the examination of PW 11 who is a witness to Ext. P15, which is prepared for seizing the above article. The robbery of MO 1, MO 2 series, MO 3 and MO 10 series by the accused persons after causing injuries upon PW 2 and the deceased had been proved beyond any shadow of doubt. 38. The possession of the stolen article by the accused immediately after the theft would enable the court to draw a presumption under Section 114 of the Indian Evidence Act. It enables the court to presume the existence of any fact, which it thinks likely to have happened, regard being had to common course of natural events, human conduct, public and private business, in their relation to the facts of the particular case. Illustration (a) of Sec-don 114 of the Evidence Act specifically provides that a man, who is in possession of stolen goods soon after the theft, may be presumed by the court to be either the thief or the one who has received the goods, knowing them to be stolen, unless he can account for his possession. 39. In the context of twine presumption under Section 114(a) of the Indian Evidence Act, it is also relevant to quote Ayodhya Singh v. State of Rajasthan, AIR 1972 SC 2501 ) wherein also an identical question arose as to whether presumption under Section 114(a) can be drawn as against the accused. In that case house trespass and theft took place on the night between 8th February and 9th February of 1964. Various articles were recovered from the appellant's house on 21st February, 1964 and from his person on 25th February, 1964. Appellant was in police custody after 25th February, 1964 and more article were recovered on 3rd March, 1964 from the courtyard in pursuance of the disclosure statement of the appellant. Various articles were recovered from the appellant's house on 21st February, 1964 and from his person on 25th February, 1964. Appellant was in police custody after 25th February, 1964 and more article were recovered on 3rd March, 1964 from the courtyard in pursuance of the disclosure statement of the appellant. In the said context, the article were recovered on 3rd March, 1964 and was consequently held to be in possession of the appellant on 25th February, 1964 and it was only after 17 days of the theft the appellant was found in possession of the stolen article. So in the said circumstances, it was held that whether the Court should draw the presumption that a person found in possession of stolen goods soon after the theft and who has not been able to account for his possession is to be accepted or whether he is a receiver of the goods knowing them to be stolen. In the said circumstances, the appellant has not been able to account for his possession of the stolen article and the explanation furnished by him is not at all worthy of evidence. Hence it has been held that the Courts below were justified in drawing the presumption that the appellant was guilty of offence under Sections 457 and 308. In the case in hand also, the incident took place on 31.1.2007 and the accused was arrested oh 06.02.2007 Immediately thereafter as per the disclosure statement given by the second accused, MO 1 necklace was recovered from Thamarachalil Bankers showing that he has pledged the ornament on 3.2.07. So the presumption under Section 114(a) has been drawn rightly by the Court below in the present case as against the accused/appellant. 40. Though second accused was questioned during examination under section 313 with regard to the gold ornaments, MO 1 which was recovered as per the disclosure statement given by him, no explanation has been offered by him to account for his possession of the said gold ornaments. The evidence of PW 1, PW 2, PW 4 etc. would prove beyond any shadow of doubt that MO 1, MO 2 series, MO 3 and MO 10 series belonged to the deceased. The evidence of PW 1, PW 2, PW 4 etc. would prove beyond any shadow of doubt that MO 1, MO 2 series, MO 3 and MO 10 series belonged to the deceased. So the possession of the stolen article with the accused persons soon after the theft in the absence of any explanation from the side of the accused, leads to an inference that the present accused along with the first accused committed robbery by attacking deceased and PW 2 and inflicting grievous injuries upon them and the conviction of the accused persons under Section 397 of IPC by the Court below does not call for any interference at all. 41. The next argument of the learned counsel for the appellant/accused is that the conviction of the accused under Section 302 of IPC is without any basis since it has come out that they have attacked PW 2 and the deceased to commit robbery and they have no intention at all to commit murder of the deceased and PW 2. Hence, the offence under Section 302 will not be attracted. It has to be altered to 304 Part-II. 42. To substantiate the above contention, the learned counsel took our attention to the judgment passed in Cri.A.282 of 2015 dated 19.6.2019 of this Court, which is filed against the conviction and sentence passed in S.C. 154 of 2009 dated 21.2.2015 of the Additional District and Sessions Court-I, Kalpetta, in connection with the first accused in the above crime. While disposing that case after a detailed discussion of facts and circumstances, this Court has come to a conclusion that mere is absence of clear evidence on the part of the accused to commit the murder of Asya and hence, it is not just and proper to convict the accused for the offence punishable under Section 302 of IPC. It is also found that the inflicted injury is to attract the offence under Section 304 and accordingly the conviction and sentence passed under Section 302 of IPC was set aside by maintaining the sentence under Sections 120-B, 397 and 449 of IPC. 43. So there is a finding by this Court with respect to the first accused setting aside the conviction under Section 302 IPC and modifying the same conviction to 304 Part-II. 43. So there is a finding by this Court with respect to the first accused setting aside the conviction under Section 302 IPC and modifying the same conviction to 304 Part-II. As found earlier, the factors proved in evidence would go to show that the present accused along with the first accused, had inflicted grievous injuries upon the deceased and also on PW 2 to facilitate the act of robbery. PW 2 in his evidence also did not state that they have been armed with any weapon at the door while was seen by him. In other words, there is no evidence showing any pre-meditated act on the part of the assailants to commit murder of the deceased. The treatment certificate and the evidence of the doctor, who treated PW 2, also do not state that the injuries sustained by PW 2 is sufficient in the ordinary course to cause death. In the said circumstances, the conviction under S. 307 IPC is also modified to that under Section 326 IPC. So in effect there is nothing to infer any intentional act of causing death of the deceased and PW 2 by the second accused along with the first accused is made out. In this context, it is relevant to quote Ramkishan and others v. State of Rajasthan 1997 KHC 1053: AIR 1997 SC 3997 ) wherein while dealing with Sections 300 - 304, Part-II of IPC, it has been held that accused persons armed with sticks attacked the complainant party by obstructing the path and inflicted injuries on body of the deceased resulting in his death. There was no evidence showing any per-meditation on the part of assailants and the intention of the appellants is inferred to cause injuries to the deceased by obstructing his path and they did not share any common intention to cause the death of the deceased. In such circumstances it has been concluded that offence of culpable homicide not amounting to murder is made out. 44. In the instant case, as has been discussed above, the accused trespassed into the house in the temporary shed of the deceased and PW 2 to commit robbery and it is during that course that they attacked PW 2 and the deceased. So we do not find specific reason to take a different view from that has been arrived at by this Court in Crl. So we do not find specific reason to take a different view from that has been arrived at by this Court in Crl. Appeal No. 282 of 2018 which has been filed by the first accused in the same crime. So we hereby conclude that the injuries caused upon the deceased would attract an offence under Section 304 Part-II of IPC read with 34 IPC and not the one under Section 302 IPC and that of PW 2 an offence under S. 326 r/w. 34 IPC and not under Section 307 IPC. 45. In view of the discussions made in the previous paragraphs, we allow this appeal in part maintaining the conviction under Section 120-B, 397 and 449 of IPC and the sentences imposed thereunder. At the same time, the conviction under Section 302 is hereby set aside and altered to one under Section 304 Part-II read with 34 IPC and the accused/appellant is sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. 1,00,000/- in default to undergo imprisonment for a further period of one year. Conviction and sentence under Section 307 IPC is set aside and modified to Section 326 IPC and he is sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs. 50,000/- in default to undergo further period of imprisonment for six months. The substantive sentences shall run concurrently. The conviction and sentence passed by the Court below under Section 120-B, 397 and 449 read with 34 IPC is confirmed. Out of the fine amount, if released, Rs. 1,50,000/- shall be given to PW 2, the injured, under Section 357(1)(b) Cr.P.C., for the loss sustained due to the death of his mother and also the injuries sustained by him. Set off allowed to appellant/2nd accused from 06.02.2007 to 07.05.2008, 30.09.2008 to 29.04.2010 and from 15.06.2015 till date.