PRADIP MAROTI GAUTRE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD Mr. Daga, learned counsel for the appellant and Mr. Loney, learned A. P. P. for respondent-State.

(2.) THE criminal appeal is directed against the judgment and order dated-4-8-1999 passed by the Third Additional Sessions Judge, Yavatmal in Sessions Trial No. 146/1997 whereby the appellant - accused is convicted for the offence punishable under section302 of Indian Penal Code and is sentenced to undergo imprisonment for life as well as directed to pay fine of Rs. 1000/ -. THE other co-accused Maroti is acquitted for the offence punishable under section302 of I. P. C. read with section34 of Indian Penal Code. THE State has not preferred any appeal against the order of acquittal.

(3.) MR. Daga, learned counsel for the accused appellant states that the P. W.1 Madhao in his examination-in-chief itself has stated that the present appellant-accused picked up one stick and gave a blow with that stick on the head of the deceased Krushna on the right side with force. It is contended that P. W.1 specifically stated about only one blow dealt with by the stick on the person of the deceased by the appellant-accused. It is further contended that even another eye witness - P.W.2 - Natthu in his examination in chief has specifically stated that the present applicant gave a blow with stick on the head of the deceased - Krushna. Similarly in the first information report - Exhibit 21 which is lodged by P. W.1 Madhao it is stated that the appellant assaulted on the head of the deceased - Krushna. MR. Daga, learned counsel therefore, contended that the evidence of the eye witnesses reveals that the present appellant without any premeditation picked up the stick and inflicted one blow on the head of the deceased Krushna and therefore, the intention to kill deceased Krushna is absent. It is contended that PW. 5 Dr. Anjali Debhere had conducted postmortem examination on the dead body of the deceased - Krushna and found the following injuries : 1. Lacerated wound with irregular edges on forehead right side about2 cm. 1/2 cm. muscle deep horizontal signs of bleeding present. 2. Lacerated wound parallel to above wound 1 cm. behind it size 6 cm. x 1/2 cm. muscle deep irregular margins signs of bleeding present. 3. Abrasion on right knee and left shoulder. 4. Fracture skull frontal bone. It is submitted that P. W.- Dr. Anjali deposed before the court that the probable cause of death is head injuries mentioned in column No. 19 and there is no specific opinion given by the Doctor whether the injuries are sufficient in ordinary course of nature to cause death. It is further contended that in absence of opinion of the Doctor that the injuries mentioned in column no.19 itself are sufficient in ordinary course of nature to cause death of deceased, the prosecution failed to establish the requisite intention to kill or intention to commit murder against the appellant, particularly when this is a case of single blow. MR. Daga, learned counsel further contended that since there are two injuries found on the head of the deceased and the eye-witnesses have clearly stated that only blow was inflicted by the appellant with stick, the prosecution failed to prove out of these two injuries which injury is caused by the accused and there is nothing on record to show that said injury was sufficient in ordinary course of nature to cause death. On the other hand, the cause of death as per P.W.5 Dr. Anjali is the cumulative effect of both the injuries mentioned in column no.19, out of which the prosecution failed to prove which injury was caused by the appellant - accused which has resulted in death of the deceased.