Judgment (A.P. Lavande, J.) The appeal was called out for hearing on 30th January, 2012 but none appeared on behalf of the appellant. As such the matter was adjourned to 31/1/2012 i.e. today. When the matter is called out today, none appears on behalf of the appellant. 2. Mrs. Pai, learned APP invited our attention to judgment of the Apex Court in the case of Md. Sukur Ali v. State of Assam, 2011 (2) Bom.C.R. (Cri.) 291, in which the Apex Court has held that in the absence of counsel for the appellant, the appeal should not be decided forthwith but should appoint a counsel as 'amicus curie' and decide a case after fixing another date and hearing him. In the case of Bani Singh & Ors. v. State of U.P., AIR 1996 SC 2439 , three Judge Bench of the Apex Court has held that in case the appellant and his lawyer remain absent on date fixed for hearing of criminal appeal, the court is not bound to adjourn the case but should dispose of the appeal on merits by cross checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The Apex Court further held that criminal appeal cannot be dismissed for non-prosecution. 3. It appears that the judgment in the case of Bani Singh (supra) was not brought to the notice of learned Judges, who decided the case of Md. Sukur Ali (supra). Since the case of Bani Singh (supra) was disposed of by three Judge Bench, we are bound to follow the said judgment in preference to the judgment in the case of Md. Sukur Ali, which was delivered by two Judge Bench. 4. In the light of the judgment in the case of Bani Singh (supra), we have heard Mrs. Pai, learned APP for the respondent State and have carefully perused the record including the impugned judgment. 5. By this appeal, the appellant ("the accused" for short) challenges the judgment and order dated 22nd November, 2006 passed by Sessions Judge at Sewree in Sessions Case No.85 of 2006 convicting the accused for the offence punishable under Section 302 of IPC and sentencing him to suffer imprisonment for life and to pay fine of Rs.2,000/-and in default to undergo simple imprisonment for six months. 6. 6. Briefly, the prosecution case is as under: Deceased Harshada was a daughter of Kalpana from her first husband Ramdlas Jadhav. Kalpana and Jadhav were residing in one room at Kranti Nagar, Kandivali. The accused was frequently visiting the house of one Barkya, the neighbor of Kalpana and Ramdas. Kalpana developed friendship with the accused and both of them had even physical relations. Ramdas protested after he came to know about the illicit relationship and started beating and harassing her. Kalpana along with her daughter Harshada and the accused went to Aurangabad and stayed there for about one month. Thereafter they started residing in the house of mother of the accused at Kandivali (East), Mumbai. It is the case of the prosecution that the accused was considering Harshada as obstruction for his relation with Kalpana and as such he was beating her. It is further the case of the prosecution that in the morning of 10/12/2005 Harshada was not well. Kalpana went out of the house to throw garbage. At that time the accused was present in the room. When Kalpana came there she noticed a nylon rope around the neck of Harshada and accused was sitting near her. When Kalpana asked him "what had happened", the accused got scared and said "I did nothing". Kalpana noticed that Harshada was giving jerk to her legs and as such she suspected that something was wrong with her. Harshada was taken to the hospital at Bismillah chowk and thereafter to another hospital and lastly to Bhagwati Hospital where Harshada was declared dead. The information was given to the police by the medical officer at Bhagwati Hospital. 7. PW 1 PSI Laxman Parshuram Deulkar came to the hospital and drew the inquest panchnama. He noticed some marks on the neck of Harshada. Initially PSI Deulkar opined that the death of Harshada was accidental. The dead body of Harshada was referred for postmortem which was conducted by Dr. Ramchandra Dhotre, who submitted postmortem report Exhibit-13. He opined that the death was due to asphyxia on account of strangulation. After receiving the postmortem report on 11/12/2005, PW 1 PSI Deulkar, lodged the report at Kurar Police Station against the accused which was registered under Section 302 of IPC. Further investigation was taken up by PW 8 API Chagan Tukaram Ingale. The nylon rope was discovered at the instance of the accused under a panchnama. After receiving the postmortem report on 11/12/2005, PW 1 PSI Deulkar, lodged the report at Kurar Police Station against the accused which was registered under Section 302 of IPC. Further investigation was taken up by PW 8 API Chagan Tukaram Ingale. The nylon rope was discovered at the instance of the accused under a panchnama. After recording the statement of several witnesses, chargesheet was filed against the accused for the offence punishable under Section 302 of IPC. Since the case was exclusively triable by the Court of Sessions, learned Addl. Metropolitan Magistrate committed the case to the court of Sessions. 8. In Sessions Case No.83 of 2006 charge was framed against the accused for the offence punishable under Section 302 IPC. The accused pleaded 'not guilty' to the charge. The prosecution examined 8 witnesses and produced several documents in support of the prosecution case. Statement of the accused under Section 313 of the Cr. P.C. was recorded. The accused did not lead any evidence. Upon appreciation of evidence led by the prosecution, the learned trial Judge held the accused guilty under Section 302 IPC and convicted and sentenced him as above. 9. With the assistance of the learned APP, we have carefully gone through the evidence (oral and documentary) led by the prosecution and the entire record. 10. Mrs. Pai, learned APP for the respondent submitted that the prosecution has proved its case beyond reasonable doubt against the accused and the findings recorded by the learned trial Judge are borne out from the evidence on record. She further submitted that the findings recorded by the learned trial Judge are based upon correct appreciation of the evidence led by the prosecution. She further submitted that the prosecution has by cogent evidence proved that it was accused who had committed murder of Harshada by strangulating her with nylon rope. According to learned APP the following circumstances, which have been proved by the prosecution clearly establishes guilt of the accused: (1) Death of Harshada was homicidal; (2) Presence of the accused in the room along with the deceased Harshada on 10/12/2005 at about 11 a.m.; (3) Conduct of the accused before and after the commission of the offence; (4) Discovery of nylon rope at the instance of the accused; (5) Motive. 11. In order to prove the homicidal death of Harshada, the prosecution has relied upon the evidence of PW 7 Dr. 11. In order to prove the homicidal death of Harshada, the prosecution has relied upon the evidence of PW 7 Dr. Ramdas Laxman Sanap. PW 7 Dr. Ramdas, who conducted the postmortem on the dead body of Harshada Ramdas Jadhav on 11/12/2005 deposed that he noted the following injuries on the person of Harshada: "(1) Ligature mark around the neck situated above thyroid cartilage anteriorly and encircling the neck completely of sited 26 cm x 01. cm Parchment like colour. On the dissection of neck strap muscles found contused. (2) Contusion over right eye externally (3) Contusion over right cheek site 2 cm x 1.5 cm (4) Old, healed abrasions around the neck of site 0.1 cm x 01.cm, 6 to 8 in nos." He further deposed that injuries Nos.1 to 3 appeared to have been caused within 24 hours. On internal examination of lungs he noticed that both the lungs were congested. Oedematus with patechil heamaroges over surface was present. According to him the cause of death was asphyxia due to strangulation. He identified the signature on the postmortem report Exhibit-26 and confirmed its contents as correct. He further deposed that the ligature mark which he noticed could be caused by nylon rope (Art. 3) which was shown to him. In the cross-examination he deposed that fatal period of asphyxia could be instant or for 2 to 3 minutes and in case of complete strangulation, the respirator stops completely. He deposed that the strangulation was complete in this case. He further deposed that contusion (injury No.2) could be caused if the person fall on hard substance. Similarly injury No.3 could be also caused by fall on hard substance. Injury No.4 was not possible if the bandage is tied with neck to support the hand. He submitted that he had not mentioned the time of the death of the victim. He admitted that he had seen nylon rope for the first time in the court. The above evidence of PW 7 Dr. Sanap clearly proves that death of Harshada was on account of strangulation. Considering that Harshada was hardly one and a half year old, the only legitimate inference which can be drawn is that the death of Harshada was homicidal. 12. We shall now take up circumstance Nos.2 and 3 together, since they are inter connected and some part of evidence is overlapping. Considering that Harshada was hardly one and a half year old, the only legitimate inference which can be drawn is that the death of Harshada was homicidal. 12. We shall now take up circumstance Nos.2 and 3 together, since they are inter connected and some part of evidence is overlapping. In order to prove these two circumstances the prosecution has relied upon the evidence of PW 2 Kalpana Pawar, PW 5 Sajan Hariprasad Sharma and PW 6 Shakuntala Mahadeo Kambale. PW 2 Kalpana, the mother of the deceased Harshada deposed that she knew the accused for about one year. She got married with Ramdas Jadhav near 2000 and gave birth to two daughters namely Bhagyashri and Harshada. Harshada, who was one and a half year old, was no more. She was residing at Surat with Ramdas. Thereafter they came to stay at Malad, Mumbai. She developed friendship with the accused, who was visiting the house of one Barkya who was staying in their neighbourhood. She admitted that she had physical relations with the accused on account of which her husband started beating her. Thereafter she went to Aurangabad along with the accused and Harshada. She claimed that accused was beating Harshada. Thereafter they returned to Malad. She further claimed that the accused was touching the body of Harshad with burnt cigarettes because Harshada was an obstruction between both of them. She further deposed that on 10/12/2005 at about 10 a.m. The accused came back from his work. Harshada was not well and she gave her milk. She left her in the house and went out to throw the rubbish of the house. After sometime she came back. She found a rope around the neck of Harshada and the accused was present there. She asked him "what he did". The accused reacted and told her that he had done nothing. The accused took the rope and put it in his pocket. She noticed Harshada giving jerky to her legs. Therefore, she took Harshada to the hospital at Bismilla chowk Kandivali. The doctor at the said hospital directed her to go to Bhagwati Hospital. She along with the accused took Harshada to Bhagwati Hospital where the medical officer declared her dead. Thereafter the doctor called the police at Bhagwati Hospital who referred the body for postmortem. Therefore, she took Harshada to the hospital at Bismilla chowk Kandivali. The doctor at the said hospital directed her to go to Bhagwati Hospital. She along with the accused took Harshada to Bhagwati Hospital where the medical officer declared her dead. Thereafter the doctor called the police at Bhagwati Hospital who referred the body for postmortem. She identified the rope Art.-B and the underwear Art.-A. In cross-examination she admitted that she had not lodged complaint to police regarding beating by the accused nor she had disclosed about the harassment and torture meted out to Harshada by the accused. She denied the suggestion that the accused never beat or harassed or touched burnt cigarette to Harshada. She admitted that one Sarojbai was residing in the room adjacent to the room where she was staying. She further admitted that the distance between the door of her room and that of Sarojbai was about 2 feet and there was a plywood partition between her and the room of Sarojbai. She stated that she had come out of the house to throw rubbish at about 11 a.m. and she came back within about four minutes. She had admitted that she did not scream after she came back to the room where Harshada was lying. She admitted that she had gone to Dr. Yadav first and then to Shalinitai Hospital. She admitted that when she came back after throwing rubbish Harshada was breathing. She further admitted that Harshada was breathing slightly or slowly when she was taken to both the doctors. She denied that she was deposing falsely against the accused in order to teach him lesson. 13. Upon a close scrutiny of the evidence of PW 2 Kalpana what emerges is that at about 11 a.m. on 10/12/2005 she had gone out of the room where they were staying to throw rubbish and after throwing rubbish she came back within about 4 minutes and found the accused and Harshada with a nylon rope around her neck. Her evidence further establishes that she questioned the accused as to what he had done to which he replied that he had done nothing. Her evidence also establishes that thereafter both of them had gone to two hospitals where Harshada was not entertained and ultimately when they went to Bhagwati Hospital where Harshada was declared dead. Her evidence further establishes that she questioned the accused as to what he had done to which he replied that he had done nothing. Her evidence also establishes that thereafter both of them had gone to two hospitals where Harshada was not entertained and ultimately when they went to Bhagwati Hospital where Harshada was declared dead. Her evidence further establishes that till Harshada was taken to Bhagwati Hospital she was alive and the doctor declared her dead at Bhagwati Hospital. Thus the evidence of PW 2 Kalpana clearly establishes presence of accused in the room where they were staying and that Harshada was found with a nylon rope around her neck and her condition had deteriorated. Thus the prosecution has been able to establish that when PW 2 Kalpana came back to the room she found the accused present along with Harshada with a nylon rope around her neck. Thus prosecution has been able to establish the presence of the accused in the room along with Harshada at about 11 a.m. on 10/12/2005. The conduct of the accused in telling Kalpana that he had done nothing is to say the least is absolutely unnatural. Although the accused was not the biological father the fact remains that he was living with Kalpana and her child from her first husband. 14. In sofar as reliance placed by the prosecution upon the conduct of the accused on the basis of the evidence by PW 5 Sajan Sharma, PW 6 Shakuntala Kambale is concerned, we find it extremely difficult to place reliance upon the same. According to PW 5 Sanjay Sharma, who was the rickshaw driver on 10/12/2005 the accused and PW 2 had hired his rickshaw near Anudatta Vidyalaya, Kandivali and he had taken both of them to Shalinitai Hospital and thereafter to Bhagwati Hospital. He claimed that there was a talk going on between both of them as according to him the lady (PW 2) was asking the accused as to why he had assaulted the child and the accused was asking the lady to keep quiet and both of them were repeating the same thing again and again. Firstly no identification parade was held and there is no evidence as to how this witness was traced. Therefore, we find it extremely difficult to place any reliance on the testimony of this witness regarding the conduct of the accused. 15. Firstly no identification parade was held and there is no evidence as to how this witness was traced. Therefore, we find it extremely difficult to place any reliance on the testimony of this witness regarding the conduct of the accused. 15. Similar is the case insofar as PW 6 Shakuntalabai is concerned. She claimed that on 10/12/2005 she was at Bhagwati Hospital and at that time one man (accused) and one lady (PW 2) brought one child. She claimed that after the doctor disclosed that the child was dead she asked the lady who was crying as to what was the problem. She deposed that the lady was abusing the accused and asking him as to why he had caused her death. In the cross-examination she was confronted with police statement in which she had not stated that the lady had inquired with the accused as to what had happened to the child. 16. It is pertinent to note that PW 1 Laxman Deulkar in his evidence did not mention that when he came to the hospital PW 6 Shakuntala was there in the hospital or that he called her to the police station to record her statement. Therefore, we find it extremely difficult to place reliance on the testimony. However, as stated above, we have no hesitation to accept the testimony of PW 2 Kalpana regarding the conduct of the accused in the room soon after the incident. 17. The fourth circumstance relied upon by the prosecution is the discovery of nylon rope at the instance of the accused. The prosecution has relied upon the evidence of PW 4 Subhash Singh who deposed that on 13/12/2005 the accused made statement in Kurar Police Station that he was willing to show the article used for the commission of offence. His evidence further discloses that at the instance of the accused he along with another pancha and police staff went to Anudatta Vidyalaya, Kandivali (East). There the vehicle was stopped and the accused took them to one garbage kundi near public latrine and showed the rope which was there. The rope which was picked up, was seized under a panchnama Exh.-22A. He confirmed its contents as correct and also identified nylon rope Art.-B as the rope which was picked up. He also identified the accused. In cross-examination nothing tangible has been brought on record to discredit the version of this witness. The rope which was picked up, was seized under a panchnama Exh.-22A. He confirmed its contents as correct and also identified nylon rope Art.-B as the rope which was picked up. He also identified the accused. In cross-examination nothing tangible has been brought on record to discredit the version of this witness. The evidence of Subhash Singh is corroborated by discovery panchnama Exh.-22A. Moreover the evidence of PW 8 Chagan Ingale, Investigating Officer also corroborates the version of PW 4 Subhash. 18. In our considered opinion, the prosecution evidence clearly proves that nylon rope which was used in commission of offence for murder of Harshada was discovered at the instance of the accused on 13/12/2005. Thus the prosecution has been able to establish the circumstance against the accused. 19. The last circumstances relied upon by the prosecution is the motive. According to the prosecution, the accused was considering Harshada as a hindrance to his maintaining relation with PW 2 Kalpana. Indisputably, Harshada was daughter of PW 2 Kalpana from her first marriage to Ramdas Jadhav. Therefore, it was quiet natural for the accused to consider Harshada was a hindrance to he maintaining relations with PW 2 Kalpana. Therefore, in our considered opinion,the prosecution has been able to establish the motive on the part of the accused to commit the murder of Harshada. 20. The above circumstances which have been proved by the prosecution clearly establish that it was accused who was responsible for committing the death of Harshada by strangulating her. Indisputably the case rests on circumstantial evidence. It is now well settled by catena of decisions of the Apex Court that in order to sustain the conviction on the basis of circumstantial evidence, the evidence must satisfy the following: (i) The circumstances from which an inference of guilt is sought to be proved, must be cogently and firmly established. (ii) Those circumstances should be of definite tendency, unerringly pointing towards the guilt of the accused. (iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability a crime was committed by the accused and none else. (ii) Those circumstances should be of definite tendency, unerringly pointing towards the guilt of the accused. (iii) The circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability a crime was committed by the accused and none else. (iv) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that the guilt of the accused and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence. 21. Testing the prosecution evidence on the touchstone of the above principles, we are satisfied that the prosecution has been able to establish that the accused was responsible for causing death of Harshada by strangulating her. 22. The next question which arises for consideration is what offence is made out against the accused. The evidence of PW 7 Dr. Ramdas Sanap which has been referred to above establishes that in case of complete strangulation the respiration stops completely and the fatal period of asphyxia may be instant for 2 to 3 minutes. The evidence of PW 2 Kalpana to which we have made reference herein above establishes that Harshada was alive when she came to the room and that when she was taken to the two doctors in the first two hospitals, she was breathing slightly or slowly. This being the position, it is evident that Harshada had not died soon after the strangulation by the accused but had died after a period of about an hour or so. Therefore, in our considered opinion it cannot be said that the accused caused injuries to deceased Harshada which were sufficient in ordinary course of nature to cause her death but the evidence on record clearly establishes that the accused intended to cause injuries to Harshada which were likely to cause her death. Therefore, in our considered view, offence under Section 304(I) and not 302 of IPC is made out against the accused. The accused is, therefore, liable to be convicted for the offence punishable under Section 304 (I) of IPC and his conviction for the offence punishable under Section 302 IPC and the sentence imposed are liable to be set aside. 23. In view of the above discussion, the appeal is partly allowed. The accused is, therefore, liable to be convicted for the offence punishable under Section 304 (I) of IPC and his conviction for the offence punishable under Section 302 IPC and the sentence imposed are liable to be set aside. 23. In view of the above discussion, the appeal is partly allowed. The conviction of the appellant-accused for the offence punishable under Section 302 IPC and the sentence imposed on him are quashed and set aside. The accused is convicted for the offence punishable under Section 304(I) of IPC and sentence him to undergo R.I. for 10 years and to pay a fine of Rs.2,000/-and in default to undergo simple imprisonment of six months. The period of sentence already undergone from 11/12/2005 is set off in terms of Section 428 of Cr. P.C. Order passed by the learned trial Judge insofar as disposal of property is concerned, is maintained. The appeal stands disposed of in the afore stated terms.