JUDGMENT

On 6th June, 1988 at about 8.00 p.m. while deceased Rekha was sitting at her house along with her mother Janabai, PW-2, her brother Ashok, PW-1 and two other brothers Raju and Vijay, the appellants along with, three others intruded into her house. On account of some previous enmity, Ramesh, A-1 abused Ashok, PW-1 and thereafter made an attempt to assault him with the knife which he had come armed with Rekha intervened with a view to save her brother from being assaulted and in the bargain received an injury with the Knife at the hands of Ramesh on her chest which injury ultimately proved fatal. One of the co-accused of the appellants, Ravindra, who was armed with a chain caused injuries to Janabai, PW-2, Baban, A-2 assaulted the deceased with the knife with which he was armed causing an injury on her lower abdomen (pubic region).

2. Nilkanth, another co-accused, also allegedly assaulted the deceased and caused her an injury with a knife on the lower abdomen (pubic region). PW-1 lodged the First Information Report and the investigation was taken in hand. The investigating officer reached the spot and after preparing the inquest report sent the body for post-mortem examination. Two injuries, one of the chest and another on the lower abdomen were noticed by the doctor. The accused were sent up for trial and the prosecution examined twelve witnesses, including PW-1 and PW-2 (eye-witnesses) to connect the accused with the crime.

3. The trial court after examining the evidence and considering the circumstances of the case, acquitted all the five accused. On appeal by the State against the acquittal, a Bench of the High Court of Bombay at Nagpur maintained the acquittal of Nilkanth and Vijay Nogese. The High Court, however convicted Ravindra for an offence under Section 324, IPC and the appellants herein i.e., Ramesh and Baban for an offence under Section 302/34, IPC and sentenced them to suffer life imprisonment each and to pay a fine of Rs. 2000/- each. Ravindra has not preferred any appeal against his conviction and sentence and therefore, this appeal is only by Ramesh, A-1 and Baban, A-2.

4. The prosecution case, as noticed above, emerges from the testimony of Ashok, PW-1 and this mother Janabai, PW-2. With the assistance of learned counsel for the parties, we have gone through the evidence of both these witness and find that the appreciation of evidence by the High Court insofar as these two witnesses as regards the assault on the deceased by Ramesh, appellant is concerned, is cogent and trustworthy. Both these witnesses have given consistent evidence and they appear to be reliable and trustworthy. The occurrence took place at their residence and their presence is thus most natural. Being the brother and mother of the deceased, they would not let go of the assailant of the deceased to falsely implicate Ramesh, appellant as the author of the fatal injury. The trial court, in our opinion, did not properly appreciate the evidence and ignored some vital material available on the record, while recording the order of acquittal. The High Court was, therefore, justified in coming to the conclusion that the reasoning given by the trial court was unreasonable and even perverse. We agree with the view of the High Court. The question, however, arises as to what offence, if any, can be said to have been committed by Ramesh and Baban? We shall first take up the case of Baban, appellant.

5. According to the prosecution case, Baban is alleged to have caused an injury with a knife on the lower abdomen of Rekha, deceased. The prosecution has also alleged that apart from an injury with the knife caused by Baban on the lower abdomen of Rekha, Nilkanth (the acquitted co-accused) had also caused an injury on the lower abdomen of Rekha with a knife, Both in the inquest report as well as in the post-mortem report, there is only one injury present on the lower abdomen of deceased Rekha. Since, the prosecution alleged that an injury had been cau