Judgment

KAILASAM, J. :- This appeal under the SC (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, is directed against the conviction and sentence imposed by the Bombay High Court reversing the order of acquittal by the Trial Court. The deceased Pandurang was the resident of village Khadiki. P. W. 15 Kerappa is his elder brother. P. W. 7 Gajaram who is the only witness in this case, was a friend of deceased Pandurang. Gajaram had two brothers Sandipan and Shrimant, P. W. 10. They had three sisters Anjubai, wife of the accused and Yamunabai (P. W. 6) and another.

2. The case of the prosecution is that after the death of the Yamunabais husband, intimacy developed between Yamunabai and the deceased Pandurang. Yamunabai was also friendly with accused. It is stated that the accused told Yamunabai to cut off her relations with the deceased Pandurang and to remain in his exclusive keeping. But Yamunabai turned down this proposal. Hence the accused developed enmity against the deceased.

3. The deceased Pandurang had gone to village Mangalwedha on Wednesday morning. P. W. 6 Yamunabai, her two children and the deceased came to Khomnal to attend a marriage. The accused also came to the place. After the marriage ceremony was over, there was a procession which started at 11.00 Oclock and returned at about 3 A. M. The procession was attended by Gajaram, P. W. 7, the deceased Pandurang, the accused, Shrimant P. W. 10 and Kondiba. P. W. 12. the brother of the bridegroom.

4. Regarding the actual incident, P. W. 7 would state that he and the deceased Pandurange went to sleep at the court-yard of Kondiba, P. W. 12 where they had tethered their bullocks and as P. W. 7 had no sleep on the previous two days, he was fast asleep immediately after lying down. The deceased was sleeping by his side. A little later, P. W. 7 heard the shriek of Pandurang and got up. P. W. 7 would say that he saw the accused running away at a distance 10 to 15 feet from him. He called the accused by his name and the accused turned back which enabled P. W. 7 to identify the accused as it was a moonlit night. P. W. 7 found that the deceased had sustained an injury on his head and was bleeding. A big stone was thrown on his head causing the injury. P. W. 7 then raised a hue and cry, lifted the head of deceased and rested it in his left hand. On hearing cries, raised by P. W. 7, P. W. 10, P. W. 13 and Kondiba P. W. 12 came running. P. W. 7 would state that he told the assembled persons that the accused had thrown a stone and ran away. Pandurang was complaining of pain and was removed to Mangalwedha to the dispensary of Dr. Gokhale (P. W. 9). Dr. Gokhale examined Pandurang and advised that the injured may be taken to Pandharpur. Gajaram was present but he did not mention anything about the assailant. Pandurang was then taken to the bus stand and from there to Pandharpur and admitted in Dr. Benares hospital. Dr. Benare, P. W. 11, examined Pandurang and found that he was completely unconscious. He found serious head injuries. Pandurang succumbed to his injures at 3-40 p. m. But the Doctor was under the impression that it was a case of accident.

5. Kherappa P. W. 15, brother of deceased rushed to Pandharpur and learnt of the death of Pandurang. He brought the dead body to the village on the next day i. e. 2-5-1969. Kherappa lodged the F. I. R. in the Police Station Khadki. Kherappa informed the Police that his brother who had gone to Khomnal to attend a marriage was injured by the fall of a stone while he was asleep and was thereafter taken to Mangalwedha at the advice of the Doctor and letter to Pandharpur.

6. The only evidence that is relied on by the prosecution is that of P. W. 7. The testimony of P. W. 7 was considered at great length and the Sessions Judge found that it cannot be accepted. P. W. 7 was sleeping along with the deceased. As he did not sleep on the previous two nights, he was fast asleep and woke up on the hearing of the shrieks of the deceased. He found th