IMPORTANT POINT
In an appeal against the judgment reversing the conviction u/s 302 IPC, the case calls for interference by the Supreme Court when the appraisal of the evidence by the High Court was based upon wrong assumptions and omission to consider material which was part of the evidence.

JUDGMENT

M. Jagannadha Rao, J.-This is an appeal preferred by the State of Maharashtra against the judgment of the High Court of Bombay in Criminal Appeal No. 731 of 1981 dated 13.1.1985 reversing the judgment of the Sessions Court and acquitting the respondent, accused for an offence under Section 302 I.P.C. The result was that the sentence of life imprisonment awarded by the Sessions Court was set aside by the High Court.

2. The prosecution case was as follows:

The deceased Udhav Golekar alias Patil belongs to village Kharda and went on 27.4.1980 alongwith his friend Tamij Mapadi (PW5) for attending the marriage of a relation at village Jejala. They stayed at Jejala overnight and on the next day i.e. 28.4.1980 Udhav Golekar and PW5 went to another village Ambi beyond Jejala. Udhav told PW5 that they would be going to the house of the accused Manohar at Ambi for consuming liquor. Accordingly they reached the house of the accused around 10 or 10.30 A.M. on 28.4.1980. Udhav Golekar purchased liquor worth Rs. 4/- from the accused. Thereafter both Udhav Golekar and PW5 consumed a cup of liquor. Subsequently Udhav Golekar gave Rs. 2/- to PW 5 and told him to go out and bring eggs. Accordingly PW 5 went out of the house of the accused and returned after purchasing eggs. When he was at the door frame of the house of the accused, PW 5 saw that a scuffle was going on between the accused and Udhav Golekar and he also saw accused picking up an axe and hitting Udhav Golekar on the back side of head. PW 5 was not in a position to state whether the axe blow was given by the sharp end or by the butt end. There was bleeding injury on Udhav s head. PW 5 rushed ahead and when he was holding Udhav s head in his hand, he asked the accused as to why he had assaulted Udhav Golekar and whether he wanted to kill him. Immediately the accused gave a blow by axe to PW 5 on his head. PW 5 was not in a position to state whether the blow was given by the sharp end or by the butt end of the axe. There was a bleeding injury on PW5 s head and his shirt was also stained with blood. When he got up, he was kicked by the accused on his buttocks and therefore PW5 ran away.

The prosecution case further was that PW5 then went to village Jejala and proceeded to the house of Balu Patil, who was a relation of the deceased Udhav Golekar. At that time Dattu Patil alias Bhosale (PW2) was with Balu Patil. PW5 told them that the accused had assaulted Udhav Golekar by an axe at his house in Ambi village. He further told them that he was also assaulted by the accused and that he would be going to Kharda to inform the incident to Anna Golekar (PW4) who was the brother of the deceased Udhav Golekar. Accordingly PW5 went to Kharda and told PW4 about the incident. PW4 then took PW5 to a dispensary at Kharda. In the meantime PW 4 went to the Primary Health Centre at Kharda and obtained a Jeep of the Medical Officer and he alongwith Rambhau Surve, Pandurang Golekar, Dattu Bhosale and Bhagatsing proceeded to Ambi. On the way Bhagatsing went to the police station, Ambi and submitted an application. After they came to the house of the accused they saw that the accused was in the house and Udhav Golekar was lying in an injured condition in the courtyard of that house and there was a bleeding injury on Udhav s head. He was alive but unconscious. At that time PW4 and PW2 asked the accused as to why he had assaulted Udhav Golekar and the accused kept mum. Thereafter they took Udhav Golekar in a jeep to the Primary Health Centre at Kharda where the Medical Officer declared Udhav dead. Thereafter PW 4 again proceeded to Ambi and lodged the FIR (Ex. 23 at 22.10 hours).

3. Coming back to what happened after Tamij Mapadi, PW5 met PW4 at Kharda was taken to a dispensary, it is the prosecution case that PW5 was taken to the Primary Health Centre at Kharda and the Medical Officer sutured his head injury and he was being treated there. Murlidhar Gavane, (PW6) Head Constable attached