Judgment: A.B. CHAUDHARI, J. : Being aggrieved by the judgment and order dated 2.2.2008, passed by the Ad hoc Additional Sessions Judge -9, Nagpur in Session Trial No.227/2007 by which the appellant was convicted for the offence punishable under Section 363 of Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and fine of Rs.100/-, in default of payment of fine to further undergo imprisonment for 15 days and was further convicted for the offence punishable under Sections 364 and 302 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for three months, the present appeal was preferred by the appellant. 2. In support of the appeal, the learned Counsel for the appellant made the following submissions. (A) There is no direct evidence in the form of eye witness to the incident in question. (B) The prosecution has placed reliance only on the evidence in the form of last seen and nothing more. The said evidence is not trustworthy or reliable and there is no proximity also or the evidence about the appellant having gone with the deceased Shiva at the place where the body was finally found. (C) The distance between the house of P.W.3 -Rekha and the spot where the body was found is quite long and no connection whatsoever can be made with the appellant. (D) The trial Court committed an error in believing and giving importance to the evidence regarding the appellant being caught by some persons somewhere near the place where the body of the deceased was found but that by itself cannot be proof of appellant having committed an offence of murder. Finally, the learned Counsel for the appellant argued that benefit of doubt ought to have given to the appellant/accused. 3. Per contra, learned Additional Public Prosecutor vehemently opposed the appeal and argued that there is a very strong evidence against the appellant in the form of evidence of his wife and his mother-in-law, P.W.3 -Rekha so also the other independent evidence of the witnesses, who saw the appellant assaulting the deceased and taking him away. He, thus, supported the impugned judgment and order and prayed for dismissal of the appeal. 4. We have gone through the entire evidence that was recorded in the trial Court. He, thus, supported the impugned judgment and order and prayed for dismissal of the appeal. 4. We have gone through the entire evidence that was recorded in the trial Court. We have gone through the impugned judgment and order. We have heard the learned Counsel for the rival parties. It is true that the prosecution case and the evidence are clearly based on the last seen theory and there is no direct evidence about the assault resulting into murder of the deceased Shiva. We, however, find that there is evidence of P.W.2 -Mona, wife of the appellant, who stated that she started living with the appellant at Mankapur after she was deserted by her husband from whom she was having a child by name Shiva, the deceased, aged about 4 years. She then stated that the appellant had objection for maintaining Shiva or Shiva residing with her i.e. P.W.2 -Mona and therefore, she had kept him with her mother P.W.3 -Rekha. On 16.3.2007 the appellant had brought Shiva from the house of her mother at about 3:00 p.m. P.W.3 - Rekha also stated in her evidence that at about 3:00 p.m. the appellant had gone to her house and demanded a glass of water from her and thereafter he forcibly took Shiva with him from her house. It is, thus, clear that the evidence that the appellant took out Shiva from the custody of P.W.3 - Rekha and took him in his custody at about 3:00 p.m. on 16.3.2007 is consistent, fully corroborated and throwing no doubt at all. Now, at this stage, it is significant to note that the said boy namely Shiva was reported to have been found at 4:00 p.m. i.e. immediately after 1:00 hour lying unconscious on the spot somewhere near the railway track. Thus, the proximity is very well established between the incident of Shiva being taken away by the appellant at 3:00 p.m. and the report about he being found at 4:00 p.m. i.e. within 1:00 hour. If the evidence on this point of both these witnesses is seen, the same is not at all shaken. Then there is evidence of P.W.6 -Salim Khan, who stated that he saw the appellant at about 4:00 to 4:30 p.m. running towards railway track and therefore, he caught hold of the appellant and brought him towards the small boy who was lying in unconscious condition. Then there is evidence of P.W.6 -Salim Khan, who stated that he saw the appellant at about 4:00 to 4:30 p.m. running towards railway track and therefore, he caught hold of the appellant and brought him towards the small boy who was lying in unconscious condition. The boy was aged about 4 years and at that time police came in police van and took the appellant and the small boy in the police van. On the next day morning, his statement was recorded by the police when he came to know that the boy was dead. There is no cross-examination on this aspect of this witness and therefore, it is very well proved that it was the appellant who was running away towards railway track and was caught and was brought near the small boy lying in unconscious condition, who was ultimately identified to be Shiva. The appellant then also indicated that he had forgotten his Chappal on the spot and was ready to point out the same. 5. At this stage, it is noteworthy that P.W.4 -Hamidkhan though did not identify the appellant/accused at all, his evidence that one person was assaulting three years' old boy by means of Chap pal has been relied upon by the trial Court as corroborative evidence. We do not agree with the trial Court because he did not identify the appellant as the assailant and therefore, the said evidence is of no use. We, however, find that the evidence of P.W.2 and P.W.3 read with P.W.6 - Salim Khan has gone totally unchallenged and further that is coupled with the evidence of P.W.14 Ramakant, who stated in his evidence that while on patrolling duty he came to know that one person was running away and people caught him along with a boy. He rushed to the spot and found that appellant was the said person along with the said boy who was in unconscious condition. P.W.2 -Mona identified the appellant as well as her son Shiva, who was in unconscious condition, who was finally declared dead. According to us, the aforesaid evidence of the above witnesses in turn shows that it was the appellant and appellant alone who took away the custody of the child, assaulted him and finally left him in serious condition with several injuries on his person. According to us, the aforesaid evidence of the above witnesses in turn shows that it was the appellant and appellant alone who took away the custody of the child, assaulted him and finally left him in serious condition with several injuries on his person. A perusal of the injuries to the person of the deceased shows that the boy was cruelly assaulted and there were as many as 11 injuries all over the body and the fatal injury appears to have been on the scalp, resulting into subdural haematoma of about 14 ml. near central brain, which finally resulted into death. 6. For all the above reasons, therefore, we have no reason not to concur with the findings off acts recorded on evidence by the trial Court. As stated earlier, we have ourselves analyzed the entire evidence. We, therefore, find no merit in the present appeal Hence, we pass the following order. ORDER Criminal Appeal No. 154/2008 is dismissed. Appeal dismissed.