1 CR.APPEAL NO.42/1994 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 42/1994 Date of decision: 9/9/2011 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/42-94cr.a 2 CR.APPEAL NO.42/1994 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.42 OF 1994 The State of Maharashtra. ...APPELLANT (Ori.complainant) vs. 1. Aba Gopala Pawar, age 60. 2. Shivaji Aba Pawar, age 30. 3. Bhausaheb Aba Pawar, age 18. All Resident of Supa Pawarwadi Tal.Parner, Dist. Ahmednagar. ...RESPONDENT (Ori.accused) ... Mr.N.B.Patil, A.P.P., for the appellant. Mr.C.K.Shinde, Adv., for respondent nos.1 to 3. ... CORAM: A.H.JOSHI & A.R.JOSHI, JJ. Date: SEPT., 9th, 2011 *** ORAL JUDGMENT: ( Per A.H.Joshi, J.) 1. Three accused were charged for offenses punishable under Sections 302, 504, 506 read with Section 34 of IPC, for committing murder of 3 CR.APPEAL NO.42/1994 Rohidas Raghu Pawar. 2. The prosecution case, briefly stated, rests on:- (a) Sole foundation of testimony of PW No.1 Raghu Sakharam Pawar who has lodged the complaint that his son, namely, Rohidas Raghu Pawar was killed, was an eye witness of the incident. (b) Recovery of blood stained weapons. 3. It is seen that the report of Chemical Analyzer, as to (1) blood-stains on the clothes of the accused and (2) blood-stained soil and weapons, has turned out to be negative. 4. Paragraph No.4 of the testimony of PW 1 reads as under: "4. After we returned to the house, Rohidas went to his Pan stall at Supa, at about 8 or 8-30 a.m. He returned to our land at about 2.30 or 3.00 p.m. After taking meals in the house, Rohidas went towards a Mango tree for sleep with a quilt. The said Mango tree is in the land of Madhala- mala. At about 4.00 or 4.15 p.m. I was sitting under a tamrind tree, which is in front of my house. At that time, I saw that accused No.2 Shivaji and No.3 Bhausaheb were coming to that Mango tree, both armed with axes and that had come running. I had seen that accused No.1 was getting down in the stream-let. On noticing these accused, I stood up under the tamrind tree. 4 CR.APPEAL NO.42/1994 At that moment, I saw that accused No.2 had given the axe blow by its edge side to Rohidas on left side of the neck. I ran towards Rohidas raising noise. However, while running, I got entangled in the clods, of earth and fell on the ground, but I immediately got up and started running. While I was running towards the mango tree, accused No.3 Bhausaheb rushed towards me and threatened to cut me into pieces by axe, if dare to come forward. Accused No.1 Aba, who was standing at the bank of the streamlet shouted to his sons that both the son and father i.e. myself and Rohidas should be cut into pieces and till then his son should not come back. However, I ran towards Rohidas and at that time, Balu and Bhau were also coming towards that mango tree. Balu was coming from the direction of the well whereas Bhau was coming from the direction of lemon orched. On reaching to Rohidas, I saw that by one axe blow only, his neck was severe. There was pool of the blood, and I saw that Rohidas was dead. On hearing of the commotion, so many persons had gathered at the spot. " The cross examination is barely suggestive that the witness was lying. 5. Learned Sessions Judge was, however, persuaded to undertake the spot inspection. 6. The spot inspection became necessary in order to ascertain the fact of the matter as to where the witness was sitting, and whether the witness, who claims to have seen the offense of assault by accused no. 1 by use of axe, could be trusted or not. 5 CR.APPEAL NO.42/1994 7. Learned Sessions Judge conducted the spot inspection to ascertain whether a person sitting under tamarind tree, referred to by PW 1 Raghu, is located such that the place, where incident had occurred, can be seen. 8. Learned Sessions Judge found that place of offence was not visible from Tamarind tree, the way PW 1 had asserted. 9. Learned Judge was, therefore, placed in a situation to be required to hold that PW No.1 could not have identified the accused, and had to hold accordingly. 10. The testimony of PW No.1 Raghu Sakharam Pawar, eye witness to the incident, has thus suffered a fatal blow. Had it not occurred, his testimony may have been adequate enough to convict the accused. 11. In the result, the learned Sessions Judge has rendered judgment of acquittal. 12. Though the State has filed appeal, and seems to be pursuing it, the State is not in a position to demonstrate as to how the fact of the matter, which was seen by the Judge himself, could be challenged by any means whatsoever. 6 CR.APPEAL NO.42/1994 13. In the result, we conclude that the appeal has no merits. Appeal is dismissed. (A.R.JOSHI, J.) (A.H.JOSHI,J.) ... AGP/42-94cr.a