1 CR.APPEAL NO.143/1993 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.143 OF 1993 The State of Maharashtra. ...APPELLANT (Ori.Complainant) VERSUS Gangadhar s/o Ramrao Bhaware, age 35 years, r/o Golegaon, Tq. Bhokar, Dist.Nanded. ...RESPONDENT (Ori.Accused) ... Smt. S.D.Shelke, APP for appellant. Mr.M.A.Padalkar, Adv., h/f Mr.R.S.Deshmukh, Adv., for respondent. ... CORAM: A.H.JOSHI & A.R.JOSHI, JJ. Date: AUGUST 29th,2011 *** ORAL JUDGMENT: (Per A.H.Joshi, J.) 1. The respondent was charged for offense under Section 302 of IPC, for murdering victim Mohan Irba Sarje. The incident and assault occurred on 29th August, 1991. The cause of death, as seen from the post mortem report, reads as follows: 2 CR.APPEAL NO.143/1993 "Opinion as to cause of death is due to cardio respiratory failure due to severe internal cranial haemorrhage and neurogenic shock due to fracture of Left fronto-parietal bone, base of skull and injury to left cerebral hemisphere." The death has occurred on 10th Sept.,1991. 2. Though prosecution had examined as much as 16 witnesses, PW 4 Mahadu Jadhav, PW 9 Poshatti Kachkalwad, and PW 10 Irba Sarje are the eye witnesses. Presence of PW No.4 seems to be eminent, while presence of PW Nos. 9 and 10, has come into doubt. 3. PW No.4, 9 and 10 are concurrent on the points, namely,: (1) That, the deceased Mohan Irba, and accused Gangadhar Bhaware were standing infront of Mohan's tailoring shop. (2) There was exchange of words between the accused and deceased Mohan. (3) Govind Manmath who was accompanying Mohan Irba was having a stick. 3 CR.APPEAL NO.143/1993 (4) Exchange of words was over permitting water connection pipe-line from the portion in front of the house of the accused. (5) Accused snatched the stick from the hands of Govind and assaulted on the head of Mohan Irba - the deceased. (6) There was oozing of blood from the injuries and which dripped on the shirt of the victim and, it also fell on the ground. 4. Admittedly, Mohan was treated in the hospital and his condition worsened in course of time and ultimately he died. The death, though originated from injuries by assault, it was not solely on account of the assault, but it was a product of complication which occurred in the course of time. 5. While presence of PW Nos.9 and 10 has come in doubt, because of distance at which PW No.9 was standing and the version of PW No.10, probability exists that the assault must have been caused by the accused. 4 CR.APPEAL NO.143/1993 6. The only question to be decided is whether the assault was with intention to murder the deceased and whether it was a voluntary act. 7. In the background that there was no prior preparation and there was, admittedly, exchange of words between the accused and the victim, it is clear that it is not an incident or act of accused with pre-determination or intention. 8. The accused was not even equipped with the stick as, admittedly, he snatched the same from Govind. 9. The prosecution has failed to prove, by producing evidence as to what exactly was the genesis of the offense, namely, who picked up quarrel before suggesting that there was exchange of words, which results in suppression of its genesis. 10. In the result, though the accused seems to be the author of the injuries, in the absence of proof of the genesis of the occurrence and considering the reasons recorded by the learned Judge for disbelieving the eye witnesses, we find no ground to interfere in the impugned judgment. 5 CR.APPEAL NO.143/1993 11. The appeal has no merits It is, accordingly, dismissed. (A.R.JOSHI, J.) (A.H.JOSHI,J.) ... agp/143-93cr.a 6 CR.APPEAL NO.143/1993 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD unreported CRIMINAL APPEAL NO.143/1993 Date of decision:29/8/2011 For approval and signature HON'BLE MR.JUSTICE A.H.JOSHI HON'BLE MR.JUSTICE A.R.JOSHI 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/143-93cr.a