P.W. 7 did number mention about the moon light but according to the Almanac, the moon set at 5 a.m. and it is quite likely that the incident took place when there was moon light.
In the earlier statement.
The deceased was sleeping by his side.
Dr. Gokhale examined Pandurang and advised that the injured may be taken to Pandharpur.
Gajaram was present but he did number mention anything about the assailant.
He found serious head injuries.
Pandurang succumbed to his injuries at 3 40 p.m. But the Doctor was under the impression that it was a case of accident.
P.W. 7 would say that he saw the accused running away at a distance 10 to 15 feet from him.
P.W. 7 found that the deceased had sustained an injury on his head and was bleeding.
Kherappa P.W. 15, brother of deceased rushed to Pandharpur and learnt of the death of Pandurang.
Pandurang was then taken to the bus stand and from there to Pandharpur and admitted in Dr. Benares hospital.
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 latter to Pandharpur.
P.W. 7 would state that he told the assembled persons that the accused had thrown a stone and ran away.
The only evidence that is relied on by the prosecution is that of P.W. 7.
A big stone was thrown on his head causing the injury.
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.
A little later, P.W. 7 heard the shriek of Pandurang and got up.
It is number possible to place any reliance on the testimony of P.W. 10, P.W. 12 and P.W. 13 who say that P.W.On hearing cries, raised by P.W. 7, P.W. 10, P.W. 13 and Kondiba P.W. 12 came running.
He brought the dead body to the village on the next day i.e. 2 5 1969.
Regarding the actual incident, P.W. 1 would state that he and the de ceased Pandurang went to sleep at the companyrt yard of Kondiba, P.W. 12 where they had tethered their bullocks and as P.W. 7 had numbersleep on the previous two days, he was fast asleep immediately after lying down.
Kherappa lodged the F.I.R. in the Police Station Khadki.
S. Kailasam, J. This appeal under the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970, is directed against the companyviction and sentence imposed by the Bombay High Court reversing the order of acquittal by the Trial Court.
Apart from the difficulty in identification, P.W. 7 who accompanied the injured Pandurang, did number mention the name of the assailant to the Doctor who saw the injured Pandurang.
Dr. Benare, P.W. 11, examined Pandurang and found that he was companypletely unconscious.
Pandurang was companyplaining of pain and was removed to Mangalwedha to the dispensary of Dr. Gokhale P.W. 9 .
The testimony of P.W. 7 was companysidered at great length and the Sessions Judge found that it cannot be accepted.
