K. SREEDHAR RAO, J.

( 1 ) THE appeal arise out of the judgment of conviction and sentence passed in SC 127/92 on the file of Sessions Judge, mangalore. The appellant is Accused No. 1, along with another charge- sheeted for committing offences punishable u/ss. 450, 394 and 397. I. P. C. r/w. Sec. 34,i. P. C.

( 2 ) IT is unfortunate to note that in the charge framed, without invoking the provisions of Sec. 34 of I. P. C. joint trial is held, however in the final report, the provision of sec. 34, I. P. C. is invoked. The case of the prosecution discloses that appellant is accused No. 1. In the house belonging to complainant examined as P. W. 2, there was a garage which was used by P. W. 5 for parking his car and was also training few boys in Refrigerator mechanism. Accused 1 was one such trainee under P. W. 5 visiting the house P. W. 2. On 3-12-1991 around 4-15 p. m. P. W. 2 was in her house. The Accused no. 1 along with Accused No. 2 come to the house of P. W. 2; rang the calling bell, gained entry into the house of P. W. 2 saying that accused No. 2 is interested in purchasing the old refrigerator of P. W. 2 which was offered for sale. After gaining entry, the accused requests P. W. 2 to get some water and when she was going Inside the room for getting water, she was pushed down a pillow was pressed on her face, with a view to suffocate her. P. W. 2 fell unconscious. Sometime after P. W. 1 comes, he finds the accused open the door and run away. P. W. 5 finds P. W. 2 lying unconscious. She is taken to Venlock Hospital. P. W. 2 had sustained as many as five injuries and there was one tracheal cut injury which was grievous injury. The FIR was lodged by the complainant-P. W. 1. She has implicated Accused 1 and also names the participation of another accused. After the apprehension of Accused no. 1, at his voluntary instance, the valuable gold jewelleries robbed from the house of P. W. 2 is recovered under seizure mahazar and on the information of Accused 1, accused 2 is arrested. P. W. 2 identifies Accused 2 in the hospital.

( 3 ) IN the trial, prosecution has examined 11 witnesses and marked in evidence 18 documents and 20 Material Objects. The sessions Court has acquitted Accused 2 on the ground that there is no evidence to establish his involvement and holds that the offence of robbery is not proved, however, convicts the accused/appellant for committing offences punishable u/ss. 448 and 326. I. P. C. and sentenced him to undergo R. I. for a period of six months for offences u/s. 448, i. P. C. and R. I. for a period of 4 years for an offence u/s. 326, I. P. C. Both sentences are directed to run concurrently. The detention period from 4-12-1991 to 10-4-1992 and 15-6-1998 to 18-6-1998 is directed to be set off. Aggrieved by the said judgment of conviction and sentence, the present appeal is filed.

( 4 ) AFTER carefully going through the evidence and the judgment, I find that the quality of appreciation of evidence by the sessions Judge while acquitting Accused 2 is far from satisfactory so also acquitting the appellant/accused-1 for committing offences u/ss. 394, 397, I. P. C. is founded on improper reason. May be some discrepancy may be there in the evidence of P. W. 2 in not mentioning the user of a sharp edged weapon for causing cut grievous injuries on the trachea and on the other vital parts of the body. The fact remains that by the time p. W. 1 enters, the accused ran away from the seen. P. W. 2 was lying unconscious. She is an old lady aged around 70 years. She immediately admitted to Venlock Hospital. The grievous injuries sustained are noticed by the doctors and treated, later on P. W. 2 has explained the causation of injuries. After the attack P. W. 2 became unconscious; she does not know the details of the articles robbed. In the FIR Accused No. 1 is described by his features by P. W. 1. Accused no. 1 is familiar to P. Ws. 1 and 2 as he was a trainee under P. W. 5 and visiting the house of P. W. 2. After apprehension of A

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