ORDER

1. THE APPELLANT, A LADY, HAS BEEN CONVICTED FOR ALLEGED COMMISSION OF AN OFFENCE UNDER SECTION 302 READ WITH SECTION 34 OF THE INDIAN PENAL CODE.

2. ZUBEDABI, THE COMPLAINANT HAD FOUR SONS, AJMAT ALI, ASGAR ALI (DECEASED), BAFAT ALI AND GULLU. THE COMPLAINANT, ALONG WITH HER HUSBAND AND TWO SONS, NAMELY, BAFAT ALI AND GULLU USED TO LIVE AT MURTIZAPUR, WHEREAS HER OTHER TWO SONS AJMAT ALI AND ASGAR ALI USED TO LIVE AT AKOLA. ON THE FATEFUL DAY, NAMELY, ON 10-6-1998, THE APPELLANT HEREIN, ALLEGEDLY ACCOMPANIED BY OTHER ACCUSED PERSONS MANIK AND HER BROTHER RAJU, WENT TO THE HOUSE OF THE COMPLAINANT AND INQUIRED ABOUT THE WHEREABOUTS OF GULLU AND UPON INQUIRY MADE IN THAT BEHALF AS TO WHY SHE HAD BEEN ASKING SO, IT WAS TOLD THAT GULLU HAD OUTRAGED THE MODESTY OF CHITRAS (APPELLANTS SISTER) DAUGHTER MANGLA. ON THE SAME DAY AT 5.00 P.M. ASGAR ALI AND HIS WIFE SHAHNOORBI, BAFAT ALI AND HIS IN-LAWS REACHED AND MET ZUBEDABI. THEY TOLD HER THAT THEY HAD COME TO ASGAR ALI TO MAKE PEACE. AT ABOUT 7.00 P.M. WHEN OTHER PERSONS WERE SITTING IN FRONT OF THE HOUSE, ASGAR ALI WENT TO A SHOP FOR PURCHASING BEEDIS. HIS WIFE FOLLOWED HIM, WHO IN TURN, WAS FOLLOWED BY ZUBEDABI. AS ASGAR ALI CROSSED A SHORT DISTANCE FROM HOME, HE FOUND THE ACCUSED PERSONS COMING FROM THE OTHER SIDE, WHEREUPON HE RAN. HE WAS CHASED BY THE ACCUSED PERSONS.

3. THE ACCUSED RAJU AND HIS FRIEND MANIK WERE SAID TO BE ARMED WITH GUPTI (SWORD STICK) AND DAGGER RESPECTIVELY. THE APPELLANT HEREIN WAS ALSO PRESENT. SHE ALLEGEDLY EXHORTED "MARO, MARO".

4. IN THE FIRST INFORMATION REPORT, IT WAS ALLEGED:

"... THEY CAUGHT HOLD OF ASGAR ALI IN FRONT OF THE HOUSE OF KANTABAI AND RAJU AND MANIK ASSAULTED HIM AND REPEATEDLY DELIVERED BLOWS ON HIS PERSON. AT THAT TIME, VAIJAYANTIBAI WAS SHOUTING MARO, MARO. WHEN WE REACHED THERE, THE SAID THREE PERSONS FLED AWAY THERE FROM. MY SON HAD SUSTAINED INJURIES AND FALLEN DOWN. MANIK AND RAJU HAD DELIVERED BLOWS BY MEANS OF DAGGER AND GUPTI (SWORD STICK) ON HIS CHEST, STOMACH, BACK, RIGHT SHOULDER AND LEFT GROIN."

IT IS NOT DISPUTED THAT ASGAR ALI DIED BECAUSE OF THE INJURIES INFLICTED UPON HIM.

5. IT IS NOT IN DISPUTE THAT DURING THE COURSE OF THEIR EXAMINATION, THE PROSECUTION WITNESSES HAD USED DIFFERENT WORDS IN RESPECT OF THE ALLEGED EXHORTATION BY THE APPELLANT AS WOULD APPEAR FROM THE FOLLOWING:

(A) ZUBEDABI (PW 1) - "MARO MARO"

(B) SK. SALIM (PW 2) - "MARO MARO, KHATHAM KARO, MAIN DEKH LUNGI"

(C) KUSUMBHAI (PW 5) - "MARA MARA, FOKANICHAYALA KHATAM KARA, ME PAHOON GHAIL".

(D) NOORSHAH (PW 6) - "MARO MARO, FOKANICHAYALA KHATAM KARUN TAKA" .

NO OTHER OVERT ACT IS ATTRIBUTED TO THE APPELLANT HEREIN. SHE HAD NOT CAUSED ANY INJURY NOR ANY WEAPON HAD BEEN RECOVERED FROM HER. SHE WAS ADMITTEDLY NOT CARRYING ANY WEAPON.

6. THE HIGH COURT, HOWEVER, FOUND THE APPELLANT GUILTY OF COMMISSION OF THE OFFENCE MAINLY ON FOUR GROUNDS:

(1) THE DIFFERENT EXPRESSIONS USED BY THE WITNESSES COULD NOT MAKE MUCH DIFFERENCE IN ARRIVING AT A CONCLUSION, AS REGARDS THE GUILT OF THE APPELLANT AS THEY BEAR THE SAME MEANING. USAGE OF SUCH DIFFERENT EXPRESSIONS ARE NOT OF MUCH IMPORTANCE STATING THAT THE WITNESSES WERE FROM COUNTRYSIDE OR VILLAGES AND WERE NOT VERY MENTALLY ALERT TO DISTINGUISH BETWEEN WHAT THEY HAD ACTUALLY WITNESSED AND WHAT THEY LEARNT FROM OTHERS WITH THE RESULT THAT DISCREPANCIES CROP UP IN THEIR STATEMENTS, BUT SUCH DISCREPANCIES DID NOT NECESSARILY POINT TO THEIR UTTERING DELIBERATE FALSEHOODS;

(2) THE APPELLANT, ALONG WITH OTHER ACCUSED, HAD ALSO CHASED THE DECEASED;

(3) SHE DID NOT TAKE ANY ACTION TO PREVENT THE OTHER ACCUSED PERSONS FROM ASSAULTING THE DECEASED; AND

(4) THE COMMON INTENTION IN THE INSTANT CASE WAS DEVELOPED ON THE SPUR OF THE MOMENT.

7. LEARNED COUNSEL APPEARING ON BEHALF OF THE APPELLANT, IN SUPPORT OF THE APPEAL, WOULD INTER ALIA TAKE US THROUGH THE EVIDENCES OF THE PROSECUTION WITNESSES AND IN PARTICULAR TO THAT OF PW 2 SK. SALIM, PW 5 KUSUM AND PW 6 NOORSHAH AND SUBMITTED THAT .THE STATEMENTS GIVEN AT THEIR FACE VALUE AND TAKEN