R.C. CHAVAN, J. :. The appellants, who have been convicted by the learned Sessions Judge, Wardha, for offences punishable under Sections 302 and 325 read with Section 34 of the Penal Code have preferred this appeal taking exception to their convictions and resultant sentences imposed upon them.

2. Facts, which led to the prosecution of the appellants, are as under:

3. Father of appellant No.1 was suffering from some disease. It was believed by the family of appellant No.1 that Ballu Dabhade and his wife Radhabai had played black magic. Father of appellant No.1 died on 19-05-1994. Appellant No.1 Dashrath, his brother Shrikrishna, who was originally arrayed as accused No.2, and appellant No.2 Dadarao hit Ballu Dabhade and his wife Radhabai with stones and sticks. Police came on being informed and took the victims to hospital. In the hospital, Ballu Dabhade and his wife Radhabai both made statements, which were duly recorded by the police. Ballu Dabhade succumbed to his injuries. An offence was registered and investigation commenced.

4. In the course of investigation, police examined witnesses, caused panchanama of the spot to be performed, sent the dead body of Ballu for post mortem examination after conducting an inquest and on completion of investigation, sent the charge-sheet before the learned Judicial Magistrate First Class, Arvi, who committed the case to the Court of Sessions at Wardha.

5. The learned Sessions Judge charged the three accused, who were sent up for trial, of offences punishable under Sections 302 and 307 read with Section 34 Of the Penal Code. All the three accused pleaded not guilty and hence were put on trial. The prosecution examined in all 13 witnesses in its attempts to bring home the guilt of the accused. Upon consideration of the prosecution evidence in the light of defence raised, the learned Sessions Judge acquitted No.2 Shrikrishna. He convicted the two appellants (arrayed as accused No.1 and 3) of offences punishable under Sections 302 and 325 read with Section 34 of the Penal Code and sentenced them on the two counts to suffer imprisonment for life and R.I. for three years and to pay a fine of Rs.5001- or in default, to undergo further SI for six months respectively. Aggrieved thereby, the convicts have appealed.

6. We have heard Shri. M. R. Daga, the learned counsel for the appellants, and Shri. A.D. Sonak, the learned Additional Public Prosecutor for the State. With the able assistance provided by both the learned counsel, we have re-appraised the entire evidence to examine the correctness of the conditions drawn by the learned Session Judge. In this case, apart from Radhabai, widow of victim Ballu, the injured eye-witness, there are thee other eyewitnesses, viz., P.W.3 Lata, P.WA Parvati and P.W.5 Savitribai, to support the prosecution case. All the four witnesses stated about the assault by appellants Dashrath and Dadarao on Ballu as well as Radhabai. Since they did not state about the involvement of original accused No.2 Shrikrishna, he was acquitted by the Trial Court.

7. The learned counsel for the appellants submitted that the prosecution has not explained the genesis of the incident. This does not seem to be so. P.W.2 Raqhabai had stated that Gulab Kaikade, father of appellant No.1, was suffering from paralysis and was taken to various doctors. She states that "they" (that is members of the family of Gulab) were suspecting that Radhabai and her husband, an issueless couple, were playing black magic on Gulab. P.W.1 Marotrao had stated in his cross-examination that on 19-05-1994 itself, that is the date of incident, the father of accused No.2 (and also of accused No.1) dies. He stated that the accused and Ballu Dabhade were not having cordial relations. He had heard the accused giving threats to Ballu Dabhade. Obviously, this is the genesis of the incident. The belief of the family of appellants that Ballu Dabhade and his wife were playing black magic and the death of appellant No.1's father, w

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