JUDGMENT : A.V. RAVINDRA BABU, J. 1. This Criminal Appeal is filed by the appellant Nos. 1 and 2, who were A.1 and A.2 in Sessions Case No. 62 of 2008, on the file of Sessions Judge, Vizianagaram, challenging the judgment, dated 23.03.2011, where under the learned Sessions Judge, found A.1 guilty of the offence under Section 304 Part II of I.P.C. and A.2 guilty of the offence under Section 304 Part II r/w 34 of I.P.C. as against the original charge under Section 302 and 302 r/w 34 of I.P.C. against A.1 and A.2 respectively. Further, the learned Sessions Judge, found A.1 guilty of the offence under Section 307 of I.P.C. and A.2 guilty of the offence under Section 307 r/w 34 of I.P.C. The learned Sessions Judge sentenced them to suffer rigorous imprisonment for six years each and to pay fine of Rs. 500/- each in default to suffer simple imprisonment for three months each for the offence under Section 304 Part II and 304 Part II r/w 34 of I.P.C. respectively and further sentenced them to suffer rigorous imprisonment for two years each and to pay fine of Rs. 200/- each for the offence under Section 307 and 307 r/w 34 of I.P.C. respectively. 2. The parties to this Criminal Appeal will hereinafter be referred as described before the trial Court for the sake of convenience. 3. The Sessions Case No. 62 of 2008 arose out of committal order in P.R.C. No. 8 of 2008, on the file of Additional Judicial Magistrate of First Class, Vizianagaram, pertaining to Crime No. 153 of 2007 of Bhogapuram Police Station. 4. The case of the prosecution, in brief, according to the charge sheet filed by the State, represented by Inspector of Police, Bhogapuram Circle, is as follows: (i) A.1 and A.2 are the residents of Chakivalasa village. A.1 is the younger brother of A.2. One Kalyanapu Satyavathi (hereinafter will be referred to as “deceased”) is also resident of Chakivalasa village, who is the sister of A.1 and A.2. Her husband, LW-7 Kalyanapu Narayana, was brought to Chakivalasa as Illarikam son-in-law. She has two daughters i.e. LW-2 Nadupuri Rajeswari and LW-4 Kalyanapu Rajayalakshmi. LW-2 was given in marriage to another younger brother of accused. They are all staying in Chakivalasa village. Her husband, LW-7 Kalyanapu Narayana, was brought to Chakivalasa as Illarikam son-in-law. She has two daughters i.e. LW-2 Nadupuri Rajeswari and LW-4 Kalyanapu Rajayalakshmi. LW-2 was given in marriage to another younger brother of accused. They are all staying in Chakivalasa village. Accused developed grudge against the deceased on the ground that she is claiming equal share in their family properties and that their mother i.e. LW-3 Nadupuri Pydamma is supporting the cause of deceased. Several times accused developed hatred against the deceased. One month prior to the occurrence, A.1 and A.2 entered into agreement with LW-11 Gorli Srinivasa Rao to sell away 12½ cents of ancestral land and received Rs. 30,000/- as advance. Deceased raised a panchayat in that connection before the Sarpanch LW-5 Lenka Ramunaidu. (ii) On 27.12.2007 at 12-00 noon accused started abusing the deceased. At that time, the husband of the deceased i.e. LW-7 intervened and scolded the accused as to why they are abusing the old woman i.e. LW-3 unnecessarily. Then, A.2 beat LW-7 on his head with a hoe (Boriga) to kill him. When A.2 raised again the hoe to beat LW-7, he raised his left hand to ward of the blow which landed on it. He received bleeding injury on both his head and left arm. A.1 beat LW-7 with hands. Then, LW-2 rushed to the scene to rescue her father. A.2 wanted to give a blow with a hoe on the shoulder of LW-2, but she successfully ducked the same. Then, the deceased rushed to the spot raising cries. Then, A.2 made an attempt to blow on her back and the deceased started running towards the thatched shed of Nadupuru Satyam. Accused did not keep quiet and chased her. A.1 caught hold of the deceased and shouted that unless she is killed they cannot regain their properly and instigated A.2 by crying Veyyara. Then, A.2 beat the deceased with hoe (Boriga) on the head of the deceased, who collapsed due to the head injury on the spot and died there. (iii) On receiving information about the incident, the V.R.O. proceeded to the spot, recorded the statement of LW-2 and handed over the same along with his report to the Sub-Inspector of Police, Bhogapuram. The Sub-Inspector of Police, Bhogapuram, gave endorsement to LW-26 Ch. Appa Rao, Asst. (iii) On receiving information about the incident, the V.R.O. proceeded to the spot, recorded the statement of LW-2 and handed over the same along with his report to the Sub-Inspector of Police, Bhogapuram. The Sub-Inspector of Police, Bhogapuram, gave endorsement to LW-26 Ch. Appa Rao, Asst. Sub-Inspector of Police, Bhogapuram to register it as F.I.R. Accordingly, the A.S.I. registered it as a case in Crime No. 153 of 2007 under Section 302, 307 r/w 34 of I.P.C. LW-5 telephoned for 108 Ambulance and sent LW-7 injured to the hospital. (iv) On 30.12.2007 at 2-00 p.m. the Inspector of Police, Bhogapuram, visited the scene of offence and got it photographed and seized blood stained earth and controlled earth. Accused were absconding after the commission of offence. On 30.12.2007 at 3-00 p.m. the Inspector of Police, Bhogapuram, found the accused on N.H.5 road at Rajapulova junction. On seeing the police, they started running. Police could catch hold of them and interrogated them. In pursuance of the disclosure statement made by A.1 and A.2, the weapon of offence was seized on tank bund which is at a distance of 100 meters to the junction on the road leading from GLM city to Gudepuvalasa out of the bushes. Further, the blood stained clothes of A.1 and A.2 were also seized. Accused were forwarded for remand. Dr. G. Veena Murthy conducted postmortem examination over the dead body of the deceased and opined that the deceased died of ante mortem injuries. Dr. Visweswara Rao found two injuries on LW-7 as simple in nature. Hence, the charge-sheet. 5. The learned Additional Judicial Magistrate of First Class, Vizianagaram, took cognizance of the case and after complying the formalities under Section 207 of the Code of Criminal Procedure (“Cr.P.C.” for short) and as it appeared that the case is exclusively triable by the Court of Sessions, by virtue of a committal order in P.R.C. No. 8 of 2008, committed the case to the Court of Sessions. The learned Sessions Judge, Vizianagaram, after numbering the same as Sessions Case No. 62 of 2008 and after appearance of accused framed charges under Sections 302 and 307 of I.P.C. against A.1 and charges under Sections 302 r/w 34 of I.P.C. and 307 r/w 34 of I.P.C. against A.2 and explained to them in Telugu for which they pleaded not guilty and claimed to be tried. 6. 6. In order to bring home the guilt against the accused, the prosecution, during the course of trial, examined PW-1 to PW-15 and got marked Ex.P.1 to Ex.P.16 and Ex.C.1 and further got marked M.O.1 to M.O.7. According to the appendix of evidence, Ex.P.7 and Ex.P.8 are not inexistence. In other words Ex.P.1 to Ex.P.6 and Ex.P.9 to Ex.P.16 and Ex.C.1 and Ex.P.7 and Ex.P.8 were only marked. Thinking that already there were Ex.P.1 to Ex.P.8 instead of Ex.P.1 to Ex.P.6, the Court below proceeded to mark from Ex.P.9 to Ex.P.16, as such, there were no Exhibits under Ex.P.7 and Ex.P.8. 7. After closure of the evidence of prosecution, accused were examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which they denied the same except the relationship with the deceased. A.1 put forth a version that when he and his mother were talking, PW-5 tried to beat him and then he escaped and then the blow fell on his sister and she died. A.1 further stated that his brother A.2 was not present at that time. A.2 stated that he is an innocent person and he was falsely implicated. Both the accused did not let in any defence evidence. 8. The learned Sessions Judge, Vizianagaram, on hearing both sides and on considering the oral as well as documentary evidence, found A.1 and A.2 guilty of the offence under Section 304 Part II and 304 Part II r/w 34 of I.P.C. respectively as against the original charge under Section 302 of I.P.C. and 302 r/w 34 of I.P.C. and further found them guilty of the offence under Section 307 and 307 r/w 34 of I.P.C. respectively and accordingly, convicted and sentenced them as above. With regard to the charges under Section 302 of I.P.C. and 302 r/w 34 of I.P.C. against A.1 and A.2 respectively, the Court below extended an order of acquittal. Felt aggrieved of the same, as against the conviction and sentence imposed against the appellants, they filed the present Criminal Appeal, challenging the judgment of the trial Court. 9. With regard to the charges under Section 302 of I.P.C. and 302 r/w 34 of I.P.C. against A.1 and A.2 respectively, the Court below extended an order of acquittal. Felt aggrieved of the same, as against the conviction and sentence imposed against the appellants, they filed the present Criminal Appeal, challenging the judgment of the trial Court. 9. There is no appeal from the prosecution side challenging the judgment of the trial Court in convicting the appellants under Section 304 Part II and 304 Part II r/w 34 of I.P.C. against A.1 and A.2 respectively, as against the charge under Section 302 of I.P.C. and 302 r/w 34 of I.P.C. 10. Hence, in deciding this Criminal Appeal, the points that arise for consideration are as follows: (1) Whether the prosecution before the Court below proved that on 27.12.2007 A.1 being instigated by A.2 attacked the deceased by name Kalyanapu Satyavathi on her head and caused her death? (2) Whether A.1 on 27.12.2007 attacked PW-5 being instigated by A.2, as such, attempted to commit murder of PW-5? (3) Whether there are any grounds to interfere with the judgment of the learned Sessions Judge, Vizianagaram? POINT NOS. 1 TO 3: 11. Sri Saranu Phani Teja, learned counsel, representing Sri Venkateswara Rao Gudapati, learned counsel appearing for the appellants, would contend that the judgment of the Court below is contrary to law, weight of evidence and probabilities of the case. The evidence adduced by the prosecution by examining PW-1, PW-2 and PW-5 is not at all convincing. Their evidence is interested in nature. The evidence of PW-6 is also doubtful. There was no injury on the back side of the deceased, though the overt act was attributed against A.1 and it is clear from the medical evidence. Merely, because there were previous disputes with regard to the properties, accused cannot be convicted. There are discrepancies in the evidence adduced by the prosecution. The Court below ought to have disbelieved the case of the prosecution with regard to M.O.1 weapon of offence. The learned Sessions Judge without proper analysation of the evidence on record convicted the appellants. The accused put forth a contention that the deceased received injury when PW-5 tried to beat A.1 with M.O.1 in the scuffle, A.1 could escape and the blow landed on the deceased, as such, the deceased died. The learned Sessions Judge without proper analysation of the evidence on record convicted the appellants. The accused put forth a contention that the deceased received injury when PW-5 tried to beat A.1 with M.O.1 in the scuffle, A.1 could escape and the blow landed on the deceased, as such, the deceased died. The Court below by not appreciating the evidence in proper perspective disbelieved the defence theory. Hence, there is no convincing evidence before the Court below, as such, the conviction imposed against the present appellants, is liable to be set aside. 12. Sri Y. Jagadeeswara Rao, learned counsel, representing the learned Public Prosecutor, sought to support the judgment of the learned Sessions Judge, Vizianagaram on the ground that the learned Sessions Judge on appreciation of the evidence on record rightly believed the case of the prosecution. PW-1, PW-2 and PW-5 were the witnesses to the occurrence. PW-6 came to know about the occurrence. The motive for the offence was civil disputes. The learned Sessions Judge has taken care to analyse the evidence in proper perspective and ultimately, convicted the accused for the offence of culpable homicide not amounting to murder with cogent reasons, as such, the judgment of the Court below is liable to be confirmed by dismissing the Criminal Appeal. 13. PW-1 before the Court below is no other than the defacto-complainant and she is the daughter of the deceased. PW-2 is the mother of the deceased. PW-3 is V.R.O., who claimed that he recorded the statement of PW-1 on going to the scene of offence after coming to know about the murder of the deceased. The prosecution examined PW-4 to prove about the disputes between the accused and deceased. PW-5 is another direct witness to the occurrence and being the husband of deceased. The prosecution examined PW-6, who rushed to the scene of offence on hearing about the incident and according to the case of prosecution, PW-5 revealed what all happened to PW-6. The prosecution examined PW-7 to speak about the dispute between the accused and the deceased. The prosecution further examined PW-8 to prove the above aspect. PW-9 is the mediator with regard to the observation of the scene of offence. PW-10 is the Photographer who took the photos of the dead body of the deceased. PW-11 is the inquest panchayatdar, who supported the case of the prosecution. The prosecution further examined PW-8 to prove the above aspect. PW-9 is the mediator with regard to the observation of the scene of offence. PW-10 is the Photographer who took the photos of the dead body of the deceased. PW-11 is the inquest panchayatdar, who supported the case of the prosecution. PW-12 is the medical officer, who examined PW-5 and issued wound certificate. The prosecution examined PW-13, who conducted postmortem over the dead body of the deceased. The prosecution examined PW-14, the Sub-Inspector of Police, to speak to the fact that on hearing about the offence in question, they rushed to the scene of offence where they received report from PW-3 along with statement of PW-1. PW-15 is the C.I. of Police, who conducted investigation in the case. 14. The case of the prosecution is that the direct witnesses to the occurrence were of PW-1, PW-2 and PW-5. The prosecution has alleged further that the motive for the offence was that there were serious disputes between the accused family and the deceased with regard to the fact that the deceased was claiming equal share in the properties of the family. In that view of the matter, the prosecution examined PW-4, PW-7 and PW-8. 15. It is to be noticed that PW-1 spoken to the factum of the claim of the share by the deceased and the response of the accused in this regard. The motive for the offence was said to be firstly, the verbal quarrel prior to the incident. It is a case where the case of the prosecution rests upon the direct evidence i.e. the manner of attack by the accused on the deceased. So, when the case is based upon the direct evidence, the motive for the offence has no role at all. However, by virtue of the evidence adduced by the prosecution, the prosecution is able to through light as to the claiming of share by the deceased in the properties. There is no dispute about the factum of suit in O.S. No. 168 of 2008, on the file of Senior Civil Judge, Vizianagaram against the accused filed by PW-1, PW-2, husband of PW-1, father of PW-1, sister of PW-1 and maternal aunt of PW-1 against the accused. There is no dispute that the subject matter of the above is no other than claiming of share. There is no dispute that the subject matter of the above is no other than claiming of share. So, insofar as the disputes cropped up between the deceased and PW-1, PW-2 and PW-5 at one hand and accused at another hand, virtually, it is not in dispute. 16. Therefore, the crux of the issue that has to be seen by this Court in deciding this appeal is as to whether the evidence adduced by the prosecution with regard to so-called attack made on the deceased by A.1 and A.2 is believable or not. 17. In this regard, the testimony of PW-1 in substance is that the incident was occurred on Saturday about one and half years back, at 12-00 noon, at their Kallam where they are residing. There she, her father and her mother were present. Then, LW-3 Pydamma came to their Kallam. Then, A.1 and A.2 were quarrelling with her grandmother Pydamma. Then, her father questioned the accused as to why they are disputing and quarrelling with the old woman. Then, A.1 picked up a Boriga and beat on the head of her father. Then again A.1 tried to beat her father and warded off his left hand and he received injury on his left hand palm. Then, she went there and tried to interfere. Then, A.1 beat her with Boriga on her left shoulder. Then, her mother (deceased) tried to interfere and A.1 gave a blow on her back with Boriga and thereafter, on fear the deceased run away some distance to escape from the clutches of the accused. A.2 chased her, caught hold of her from back side. Then, A.1 beat the deceased on her head with the same Boriga. After receipt of head injury, the deceased fallen down and died at the spot. A.1 beat on the deceased at the place of cattle shed of Nadupuri Satyam. After the occurrence, both the accused ran away. After the incident, so many persons gathered there. She gave statement before the Village Secretary of their village, who came to the scene. She signed on it. Ex.P.1 is her statement. Police examined her and recorded her statement. She and her father were sent to the Government hospital for treatment for the injuries received in the incident. She can identify the Boriga which was used at the time of commission of office. M.O.1 is the said Boriga. 18. She signed on it. Ex.P.1 is her statement. Police examined her and recorded her statement. She and her father were sent to the Government hospital for treatment for the injuries received in the incident. She can identify the Boriga which was used at the time of commission of office. M.O.1 is the said Boriga. 18. Turning to the testimony of PW-2 with regard to the incident in question, she deposed that the deceased was killed at the house of PW-1 at 12-00 noon about one and half years back. Prior to the offence, she (PW-2) went to the Kallam of PW-1. Then, A.1 and A.2 came there and picked up quarrel with her. LW-7 Narayana, father of PW-1, came and interfered and questioned the act of the accused. A.1 beat LW-7-Narayana on his head with Boriga. Again when A.1 tried to beat him, he warded off with his hand and LW-7 received injury on his left hand palm. Then, PW-1 intervened and A.1 beat her with Boriga on her back side left shoulder. When the deceased interfered, A.2 beat her on her back side with hand. Due to fear of death, she was running. Then A.2 caught hold of her and A.1 beat with the same Boriga on her head. She received bleeding injury and died on the spot. Immediately after the incident, both the accused ran away. She, PW-1 and LW-7-Narayana witnessed the incident. All the villagers came to the spot after the incident. Village Secretary came to the spot and reported the matter to the police. Police came to the scene. She can identify the Boriga used by A.1 and A.2. M.O.1 is the Boriga. 19. Coming to the evidence of PW-5, his evidence is that the offence took place about one year and 8 months back at the cattle shed of Nadupuri Satyam of their village. The distance between the scene of offence and his house is 50 yards. At the time of offence, he, his daughter and deceased were at the house. Just prior to the offence, his sister, PW-2 came there. At that time A.1 and A.2 started quarreling with PW-2. He asked the accused as to why they are picking the quarrel with PW-2 unnecessarily. A.1 suddenly came and beat with a Boriga iron portion on his head. He warded off with his left hand when A.1 again attempted to beat him. At that time A.1 and A.2 started quarreling with PW-2. He asked the accused as to why they are picking the quarrel with PW-2 unnecessarily. A.1 suddenly came and beat with a Boriga iron portion on his head. He warded off with his left hand when A.1 again attempted to beat him. Then, he received injury on his left hand palm. PW-1 tried to escape him and then A.1 beat PW-1 with Boriga on her back side left shoulder. Then, the deceased i.e. his wife intervened, A.1 beat his wife with Boriga on her back. Due to fear of death, she started running towards cattle shed of Nadupuri Satyam. Both the accused chased one after another. At the place of cattle shed of Nadupuri Satyam, A.2 caught hold of the deceased and A.1 beat the deceased with same Boriga iron sharp edged portion on her head. The deceased fell on the ground unconscious and she died on the spot. He, PW-1 and PW-2 witnessed the incident throughout. After the incident, neighbourers gathered there and saw the dead body. He said the incident to Nadupuri Satyam. Their village President Lenka Seethamnaidu sent them to the Government hospital for treatment. His blood stained clothes were handed over to C.I. of Police. C.I. of Police examined him. After the incident, accused fled away. He can identify the Boriga, if it is shown to him. Witness identified M.O.1 Boriga already marked. 20. PW-3, the Village Revenue Officer, testified that on 27.12.2007 at 12-15 p.m. while he was at panchayat office, he came to know about the death of the deceased Satyavathi. Then, he went to the place of occurrence immediately and found the dead body opposite to Kallam of Nadupuri Satyam. PW-1, PW-2 and LW-7 Narayana were present. PW-1 and LW-7 were with bleeding injuries. He recorded the statement of PW-1. He obtained her signature on Ex.P.1. He also prepared a report basing on Ex.P.1. Police came to the scene of offence and he handed over his report along with Ex.P.1 to police. Ex.P.2 is his report. He further spoken to the fact that he was also present when the police arrested A.1 and A.2 on 30.12.2007 at 2-30 p.m. and that C.I. of Police interrogated them and according to the disclosure statement made by A.1 and A.2, weapon of offence was seized. Ex.P.2 is his report. He further spoken to the fact that he was also present when the police arrested A.1 and A.2 on 30.12.2007 at 2-30 p.m. and that C.I. of Police interrogated them and according to the disclosure statement made by A.1 and A.2, weapon of offence was seized. He further testified the fact that police also seized blood stained clothes of both the accused. Police affixed necessary identity slips on the clothes seized from the accused as well as on Boriga. 21. According to the evidence of PW-5, he intimated the incident to PW-6 and after PW-6 came there and the evidence of PW-6 is that he heard cries from the scene of offence and rushed there and found PW-1, PW-2 and PW-5 there and they are crying and PW-5 told him that A.2 caught hold of the deceased and A.1 beat her with a Boriga. PW-5 further stated that A.1 beat him and PW-1. He found injuries on the left hand palm and also found the dead body of the deceased and noticed injury on the head of the deceased. He accompanied PW-5 in the Ambulance to the hospital. He was examined by the police. 22. Firstly, I would like to deal with as to whether there is consistency with regard to the manner of attack. As seen from Ex.P.1, it is the statement of PW-1 recorded by PW-3, the concerned V.R.O. Insofar as the overt acts attributed against A.1 and A.2 and the manner of attack is concerned, Ex.P.1, statement of PW-1 runs to the effect that on 29.12.2007 at 12-00 noon Ramana (A.2) and Laxmana (A.1) was scolding her maternal grandmother by questioning that as to why she gave the land to her mother. Then, her father questioned them as to why they abused her. Then, her uncle Laxmana (A.1) beat her father on the head with a Borigi and her eldest uncle Ramana (A.2) beat him with hands. In the meantime, when she intervened, Laxmana (A.1) beat with Borigi on her left shoulder. In the meantime, her mother came and when obstructed the attack, her uncle Laxmana (A.1) beat on the back of her mother with Bigira. When her mother tried to ran away, her uncles’ chased her and her eldest uncle Laxmana (A.2) caught hold of her mother and her younger uncle Ramana (A.1) beat with Boriga on the head of her mother. When her mother tried to ran away, her uncles’ chased her and her eldest uncle Laxmana (A.2) caught hold of her mother and her younger uncle Ramana (A.1) beat with Boriga on the head of her mother. Her mother’s head is broken and she fell down immediately and died. 23. Now, coming to the testimony of PW-1 as already extracted, she testified that A.1 picked up a Boriga and beat on the head of her father. When again he tried to beat her father, he warded off his left hand and he received injury on his left hand palm. When she tried to interfere, A.1 beat her with Boriga on her left back side shoulder. When her mother tried to interfere, A.1 gave a blow on her back with Boriga. Then, she ran away some distance. A.2 chased her, caught hold of her from back and A.1 beat her on the head with the same Boriga. After receipt of the head injury, her mother fallen down and died at the spot. 24. Now, coming to the testimony of PW-2 and PW-5, they have spoken the overt acts on the same lines as that of the evidence of PW-1. 25. At the outset, this Court would like to make it clear that insofar as Ex.P.1 is concerned, there was no whisper that when A.1 again tried to beat her father, he warded off with his left hand, as such, he received injury on his left hand palm. It is to be noticed that the F.I.R. cannot be taken as encyclopedia. PW-1, PW-2 and PW-5 consistently spoken to the fact that when A.1 again tried to beat PW-5, he warded off his left hand, as such, he received injury on his left hand palm. As seen from the testimony of PW-12, he found two injuries on the person of PW-5 i.e. a laceration of size 1 x 1 behind scalp and a laceration of the size 1 x 1 on the right hand little finger on palmar side. So, the fact that PW-5 received two injuries as spoken by the prosecution witnesses was supported by the evidence of PW-12 coupled with Ex.P.12, the wound certificate of PW-5. So, the fact that PW-5 received two injuries as spoken by the prosecution witnesses was supported by the evidence of PW-12 coupled with Ex.P.12, the wound certificate of PW-5. Apart from this, during the course of cross examination of PW-1, PW-2 and PW-5, nothing was suggested to them that their evidence attributing second overt act against A.1 as having beaten PW-5 and when PW-5 warded off the attack, he received injury on the palm was subsequent improvement. Therefore, virtually, there were no omissions suggested to PW-1, PW-2 and PW-5 in this regard. Though the second overt act against A.1 was not there in Ex.P.1 as having attacked PW-5 second time, but, it appears that during the course of investigation, they disclosed the same, as such, they deposed the same in the Court. So, virtually, the testimony of PW-1, PW-2 and PW-5 was not challenged before the Court below that they made any improvements contrary to their statements during investigation. 26. Turning to the testimony of PW-1 in cross examination, she denied that when A.1 and her maternal grandmother were quarrelling, her mother and her father went there to beat A.1 and in that scruple, her mother tried to interfere and received injury in the hands of her father. When the accused tried to beat LW-3 Pydamma, her father intervened and then A.1 beat him. She denied that A.2 did not catch hold of her mother. 27. Turning to the testimony of PW-2 in cross examination, she deposed that “it is true that on that day A.1 took her away to his house and tried to beat her. It is true that she herself and A.1 were quarrelling with each other in the house of A.1. It is true that when she and A.1 were quarrelling with each other, LW-7 Narayana came to the house of A.1 and scolded A.1 why he was abusing her. It is true that LW-7 Narayana tried to beat A.1. Then PW-1 came there. She denied a suggestion that when LW-7 Narayana tried to beat A.1 then her daughter tried to interfere. She denied that A.1 did not beat the deceased and A.2 was not there at the scene of offence and he arrived to the scene only after the incident.” 28. Then PW-1 came there. She denied a suggestion that when LW-7 Narayana tried to beat A.1 then her daughter tried to interfere. She denied that A.1 did not beat the deceased and A.2 was not there at the scene of offence and he arrived to the scene only after the incident.” 28. During the course of cross examination, PW-5 denied that M.O.1 belonged to him and when he tried to beat A.1 with M.O.1, A.1 escaped and the blow reached the deceased and that is the cause of the death of the deceased. He denied that A.2 was not present at the time of offence at the scene and he did not participate in the crime. 29. As seen from the cross examination part of PW-1, PW-2 and PW-5, absolutely, no discrepancies, omissions or contradictions are elicited to disbelieve their testimony. The defence of the accused is that when PW-5 tried to beat A.1 in the quarrel, the blow fallen on the head of the deceased, as such, the deceased died. If that be the case and when the deceased was no other than the sister of A.1 and A.2, their natural reaction after the alleged incident according to their defence would have been something different. If really the defence was true, they would have questioned PW-5 for killing their own sister and would have rushed to the police station to lodge a report against PW-5. Therefore, in my considered view, the so-called defence of A.1 and A.2 is absolutely not tenable. Apart from this, there is no explanation whatsoever from the mouth of the accused by suggesting theory as to the manner in which PW-5 received injuries. So, PW-5 was an injured witness, who witnessed the occurrence and whose evidence is consistent with the contents of Ex.P.1 and further the evidence of PW-1 and PW-2. Hence, the accused miserably failed to probabalise the theory that when PW-5 tried to beat A.1, the blow landed on the head of the deceased. As regards the contention that A.2 was not present at the scene at the time of incident and later he came to the scene it is also not tenable as the role attributed against A.2 was clearly mentioned in Ex.P.1, which was hardly within 15 minutes after the occurrence and further the role played by A.2 was categorically spoken by PW-1, PW-2 and PW-5. Insofar as the manner of attack and overt acts attributed against A.1 and A.2 is concerned, I am of the considered view that the evidence adduced by the prosecution is fully convincing. 30. Another line of defence of the accused before the Court below is that there were no injuries on the person of PW-1 though she claimed that she received an injury on the left side shoulder. It is to be noticed that the charges that were framed before the Court below was not relating to the so-called injury caused to her at the time of attack. In this regard, the evidence of PW-16, the investigating officer in cross examination is that he did not send PW-1 to Government hospital for treatment, as she received minor injuries. So, when PW-1 was not referred to the Government hospital, absolutely, there would not have been any occasion for the prosecution to adduce medical evidence with regard to so-called injuries received by PW-1. Under the circumstances, the fact that the prosecution did not prove any injuries on the person of PW-1 would not destroy the case of the prosecution. 31. Apart from the above, the case of the prosecution is that when the deceased intervened in the incident, A.1 dealt a blow on her back with Boriga and then she ran away to rescue herself. Admittedly, the evidence of PW-13 coupled with Ex.C.1, the postmortem report, does not disclose any injury on the back of the deceased. Admittedly, in cross examination, PW-13 deposed that except injury on head, he did not find any external injuries and he did not find any injury on the back caused due to Boriga. He deposed that if blows were given on the back, definitely, there would be injuries on the back. It is to be noticed that the allegations in the charge sheet were that when A.1 tried to give a blow to the deceased on the back, she ran away. It is really doubtful whether the deceased received any injury on the back or not. However, there is no dispute that the cause of death in view of the evidence of PW-13 coupled with Ex.C.1 is external injury on the head. Under the circumstances, failure on the part of the prosecution to prove the injury on the back side of the deceased is not fatal to the case of the prosecution. 32. However, there is no dispute that the cause of death in view of the evidence of PW-13 coupled with Ex.C.1 is external injury on the head. Under the circumstances, failure on the part of the prosecution to prove the injury on the back side of the deceased is not fatal to the case of the prosecution. 32. The substratum of the case of the prosecution is in no way affected for the absence of injuries on the person of PW-1 and absence of injury on the back of the deceased. The presence of A.1 at the scene of offence was not in dispute. Though A.2 disputed his presence at the scene i.e. actual time of attack, his defence was that he rushed to the scene after the incident. Here, this Court has no reason to disbelieve the testimony of PW-1, PW-2 and PW-5 with regard to the presence of A.1 and A.2 at the scene of offence in the light of the detailed role spoken to by PW-1, PW-2 and PW-5, in the manner of attack against the deceased. 33. As seen from the evidence of PW-1, PW-2 and PW-5, the time of occurrence was 12-00 noon. Within 15 minutes, PW-3 on hearing the incident could rush to the scene of offence and recorded the statement of PW-1. Later, he prepared Ex.P.2 and submitted the same to the Sub-Inspector of Police. So, there was no delay in registration of F.I.R. soon after receipt of Ex.P.1 and Ex.P.2 from PW-3 by the police. 34. Turning to the evidence of PW-3 coupled with the evidence of PW-16, the investigating officer, prosecution has further proved categorically about the arrest of A.1 and A.2 and pursuant to their disclosure, investigating officer seized M.O.1 weapon of offence and the clothes of the accused. There remained nothing in the evidence of PW-3 and PW-16 to disbelieve the theory. The cogent evidence adduced by the prosecution with regard to the recovery of M.O.1 further negatived the contention of the accused that M.O.1 belonged to PW-5. Throughout the natural reaction of accused if really the deceased died due to act of PW-5 in the scuffle would have been different. The prosecution categorically proved by virtue of the evidence of PW-1, PW-2, PW-5 and PW-16, the investigating officer, that immediately after committing the offence, both the accused fled away from the scene of offence. Throughout the natural reaction of accused if really the deceased died due to act of PW-5 in the scuffle would have been different. The prosecution categorically proved by virtue of the evidence of PW-1, PW-2, PW-5 and PW-16, the investigating officer, that immediately after committing the offence, both the accused fled away from the scene of offence. It proves that their defence is nothing but a false. 35. Having regard to the overall facts and circumstances, this Court is of the considered view that the contention of the accused before the Court below that they were implicated falsely cannot stand to any reason. Therefore, the evidence adduced by the prosecution before the Court below was cogent and satisfactory and the case of the prosecution does not suffer with any infirmities, contradictions, omissions or discrepancies. PW-1, PW-2 and PW-5 were natural witnesses to the occurrence. PW-6 testified that immediately after the occurrence, he rushed to there and came to know about the manner of attack. In my considered view, the learned Sessions Judge, Vizianagaram, rightly believed the case of the prosecution. However, the learned Sessions Judge considering the fact that the incident in question was happened in sequence and in a spur of moment when A.1 and A.2 started quarrelling with PW-2 was of the view that the evidence adduced would not prove the charges under Section 302 of I.P.C. against A.1 and Section 302 r/w 34 of I.P.C. against A.2 and ultimately came to a conclusion that the prosecution could establish the offence under Section 304 Part II of I.P.C. against A.1 and Section 304 Part II r/w 34 of I.P.C. against A.2 and further believed the case of the prosecution with regard to the charges under Section 307 and 307 r/w 34 of I.P.C. against A.1 and A.2 respectively for attacking PW-5 on his vital parts of the body. As pointed out, the findings of the learned Sessions Judge, Vizianagaram in convicting A.1 and A.2 under Section 304 Part II and 304 Part II r/w 34 of I.P.C. respectively are not under challenge before this Court by the prosecution. 36. As pointed out, the findings of the learned Sessions Judge, Vizianagaram in convicting A.1 and A.2 under Section 304 Part II and 304 Part II r/w 34 of I.P.C. respectively are not under challenge before this Court by the prosecution. 36. Having regard to the above, I am of the considered view that the prosecution has categorically proved that A.1 caused the death of deceased on 27.12.2007 and A.2 shared the common intention of A.1 in causing death of deceased and further A.1 made an attempt with knowledge that his attack on PW-5 is likely to cause death and further A.2 shared the common intention of A.1 in attacking PW-5 on his vital parts of the body. Therefore, the conviction recorded by the learned Sessions Judge, Vizianagaram, under the above provisions of law, cannot be said to be erroneous. Hence, I see no reason to interfere with the judgment of the learned Sessions Judge, Vizianagaram in Sessions Case No. 62 of 2009, dated 13.08.2009. 37. In the result, the Criminal Appeal is dismissed, as such, the judgment of the Court below in S.C. No. 62 of 2009, dated 13.08.2009 shall stand confirmed. 38. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the order of this Court to the trial Court on or before 08.03.2023 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the appellants/A.1 and A.2 and to report compliance to this Court. 39. Consequently, miscellaneous applications pending, if any, shall stand closed.