BHAT, J.

Of the three accused in Sessions Case No. 2/1982 on the file of the Additional Sessions Judge, Parur, accused 1 and 2 were acquitted of the charge under Section 380, IPC and the third accused was acquitted of all the charges. Accused 1 and 2 were convicted under Sections 302, 307 and 460, IPC read with Section 34, IPC and sentenced to undergo rigorous imprisonment for life under Section 302 IPC, R.I. for five years under Section 307, IPC and R.I. for seven years under Section 460, IPC., the sentences having been directed to run concurrently. Accused 1 and 2 have preferred Crl. Appeals 28/1983 and 81/1983 while the State has preferred Crl. Appeal 184/1983 challenging the acquittal of the third accused and Crl. Appeal 205/1983 challenging the acquittal of accused 1 and 2 in regard to charge under Section 380, IPC read with Section 34, IPC.

2. Since 1970, P.W. 2 along with his wife, now deceased Lissy, and children, P.Ws. 1 and 3 have been living in the house at Palissery. On the night of 19-5-1981, after supper, they went to bed. P.W. 2 and Lissy slept on two separate cots in the room on the southern side while P.Ws. 1 and 3 slept in the room on the northern side. The cot on which P.W. 2 was sleeping was near the open window. He had kept M.O. 1 torch near his pillow. According to the prosecution the three accused came there at about 4 a.m. committed theft of the torch and removed it through the window. Using the cement gas pipe attached to the nearby latrine building, they climbed up, came to the terrace of the house, entered the house by opening the small door of the loft situated above the room next to the bed room of P.W. 2 (where the ladder was kept), entered the loft, came down the ladder and reached the bed room of P.W. 2. They were armed with M.Os. 15 and 16 knives and M.O. 17 chisel. They inflicted four incised injuries on Lissy, who was asleep, and two incised injuries on the right cheek and right shoulder of P.W. 2. P.W. 2, who felt something falling on or touching his cheek, woke up and called out his wife, who had by that time died and therefore could not respond. P.W. 2 cried out and called out to his son, P.W. 1. P.Ws. 1 and 3 woke up and went to their parents' bed room. By that time P.W. 2 had switched on the light in the room. They heard sound of some persons jumping and running away. They realised that Lissy was dead. At the instance of P.W. 2, his sons called the neighbours. P.Ws. 4 to 7 came there. According to the prosecution, there were no eye witnesses to the occurrence.

3. P.W. 1 and others took P.W. 2 to the hospital at Angamaly where Doctor, P.W. 17, examined him and directed that he should be taken to Government Hospital, Ernakulam. P.W. 2 was, however, taken to a private hospital viz., Medical Trust Hospital, Ernakulam. He was admitted as in-patient by P.W. 71. He was treated by P.W. 72 and discharged only on 10-6-1981.

4. The in-mates of the house had no idea about the identity of the assailants. P.W. 1 went to the Angamaly Police Station at 6 a.m. and gave Ext. P1 information which was recorded by S.I. of Police, P.W. 73 and the latter registered a case under Ext. P48 FIR for offences under Sections 302, 307 and 460 I.P.C. read with Section 34 I.P.C. against unknown persons. P.W. 73 went to the scene and prepared Ext. P37 scene mahazar attested by P.W. 63. P.W. 81, C.I. of Police, crime Detachment, Alwaye took up investigation. Investigation was also conducted by other police officers. P.Ws. 82 and 83 as also Deputy Superintendent of Police attached to the Crime Detachment, who ultimately laid the charge-sheet on 27-11-1981. He died before he could be examined in Court.

5. The case was duly committed to the Sessions. On the accused pleading not guilty to the charges framed against them, prosecution examined 83 witnesses and marked Exts. P1 to P74 series and M.O.S. 1 to 36 series. Exts. C1 and D1 series and D2 were also marked. When questioned by the Sessions Judge, the accused de