Judgment

R. S. SARKARIA, J. :- This appeal is directed against a judgment dated December 2/4, 1972, of the High Court of Bombay, whereby it converted the acquittal of the appellants herein, into a conviction under S. 302 read with S. 34, I. P. C.

2. According to the prosecution, Damji had illicit relations with Smt. Bachibai wife of Dana Ravji Patel, appellant, who was original accuseed No. 1 at the trial. Dana was aware of these relations, and about two to four months before the occurrence, he had threatened to kill the deceased. Damji deceased, along with his wife and daughter, was living in a room in Building No. 3, Bhaveshwar Nagar, Ghatkopar, Bombay.

3. On November 29, 1969, at about 7 p. m. the deceased was returning home on his bicycle. When he entered the lane adjacent to the said Building No. 3, both the appellant assaulted him with knives, Pramila (P. W. 2), aged about 13 years, the daughter of the deceased, was sitting on a charpoy in the compound of Building No. 3 This compound is enclosed by a wall and is close to the lane. Another girl, named Kuvarbai (P. W. 5). also aged 13 year was sitting on the Otal nearby. On being attacked, the deceased cried out : Bachao Bachao. On hearing this, Pramila got up and ran to the place of occurrence. On coming out of the compound gate, she saw both the appellants causing injuries with knives to the deceased who was then lying on the ground. His legs were in the gutter and the rest of the body on the road. Pramila asked the assailants as to why they were assaulting her father. The appellant Ganesh thereupon brandished his kinfe and under pain of death, threatened her to go away, Pramila then raised a hue and cry, on hearing which, Welji Harkha (P. W. 3), a Contractor, who was going in his car to his office in a nearby building, was attracted to the spot. Welji stopped his car and immediately proceeded towards the scene of occurrence. On his approach, Dana, appellant ran away carrying the knife with him, but Ganesh appellant was still there dealing blows to the deceased. Welji caught hold of Ganesh by his shirt, slapped and upbraided him as to why he was assulting the deceased. Ganesh got himself released from Weljis grip and ran away in the same direction in which his companion had gone. Welji then went to his office in the hind street. His son, Mohan was there. A large number of other persons were also there. He did not whisper even a word about the occurrence to any of them, not even to his son, Mohan. At his request, his son Mohan, drove him in the car to his residence.

4. At the spot. Kuvarbai (P. W. 5), on seeing the appellant assaulting the deceased, ran to the residential room of the deceased and informed his wife, Santukbai (P. W. 6). Thereupon, Santukbai rushed to the place of occurrence and found her husband lying in a pool of blood. She, also, saw her daughter, Pramila, standing there. Pramila and Santukbai, both pulled out the deceased from the gutter to the road. Pramila then ran to her uncle. Kanjibhai (P. W. 7), who was residing in the vicinity, and informed him about the incident. Pramila returned to the spot along with Kanjibhai. By that time, one Ravji (P. W. 1), who had been bethrothed to Pramila, had come to the spot. He learned from Santukbai and Pramila all about the occurrence. At about 7.30 p. m., Constable Shinde (P. W. 20), along with a Head Constable and another Constable, who were on Patrol duty, came to the scene, Shinde learnt from the persons present at the spot how the deceased had been assaulted with knives. Shinde and Ravji then put the deceased in a taxi and took him to Police Station. Ghatkopar. Shinde informed the Police Sub-Inspector Patil (P. W. 21), who was incharge of the Police Station at that time. The deceased was then taken to the Sion Hospital by another Policy Constable. Shinde and Ravji accompanied the deceased. On reaching the Hospital, the doctor declared the deceased dead. At about 8.30 p. m., Ravji and Shinde returned to the Police