Judgment : A.V. Potdar, J. 1. Challenge in this appeal is by the original accused who was convicted u/s. 302 of IPC for which he was sentenced to suffer imprisonment for life and to pay fine of Rs.5,000/with default stipulation to undergo further RI for 5 months. 2. Case of the prosecution as unfolded before the Trial Court is as follows. “(a) On 02/02/2010, on the complaint (Exh.30) lodged by the appellant himself in Nanalpeth Police Station, Parbhani, on duty PSI Baliram Shinde (P.W.No.9) had registered an offence vide CR No. 21/2010 u/s. 307 of the IPC. P.W.No.9 himself put the appellant under arrest at 11.00 p.m. or so on that day. In presence of witnesses, clothes on his person (one black colour pant and faint blue colour shirt) were seized under arrest cumseizure panchnama Exh.34. (b) P.W.No.9, following to the registration of a offence, visited a place where he learnt that victim Tahseen was taken to the Government Hospital, Parbhani. P.W.No.9 then visited the Government Hospital, Parbhani, but till then injured/victim was shifted to Nanded for further better treatment. In the early morning of 03/02/2010, in presence of witnesses he drew spot panchnama (Exh.28). From the spot, he had seized one stone pestle (Locally known as “warwanta”) smeared in blood, blood mixed soil and plain soil. On 06/02/2010, MLC was received from Government Medical College, Nanded that the victim succumb to injuries while under treatment. Hence offence earlier registered u/s. 307 of IPC was converted u/s. 302 of IPC. On that day, after inquest panchnama (Exh.10) was drawn on the dead body of victim Tahseen, dead body was sent for post mortem. (c) Dr. Sanjay Baliram Bhooktar (P.W.No.5) then attached to Shankarrao ChavanMedical College, Nanded, had conducted autopsy on the dead body. On external examination of the dead body, he had noticed following injuries : 1. Clean sutured wound on the frontal region 17 in all. 2. Clean sutured wound on right tempoparietal region 6 in all. 3. Clean sutured wound left paritooccipital region 7 in all. According to him, these injuries are antimortem injuries. On internal examination, he had noticed following injuries : 1. Bleeding ondemetter scalp. 2. Fracture to left parietal bone of the skull. 3. 2. Clean sutured wound on right tempoparietal region 6 in all. 3. Clean sutured wound left paritooccipital region 7 in all. According to him, these injuries are antimortem injuries. On internal examination, he had noticed following injuries : 1. Bleeding ondemetter scalp. 2. Fracture to left parietal bone of the skull. 3. Multiple cerebral contusions B/L (bllateral) frontal temporal and left occipital region with left intracerebral haematoma with occipital region with right SDH (Subdural haematoma) According to him, internal injuries noticed by him are corresponding to the external injuries. He has further opined that probable cause of death of victim was death due to head injury. He has further opined that the injuries sustained by the victim are sufficient to cause death in ordinary circumstances. He had also opined that the injuries can be possible by assault of stone pestle. Accordingly, he had prepared post mortem notes (Exh.21). While conducting the post mortem on the dead body of the victim, he had collected sample of blood for chemical analysis. (d) During further investigation, P.W.No.9 had recorded statements of both the sons of the deceased, who have carried the victim to the hospital for medical treatment. While recording statement of Zuber and Amer, the sons of victim and appellant, clothes on their person were seized in presence of witnesses under panchnama (Exh.35). During further investigation, properties seized was sent to Chemical Analyser alongwith forwarding letter Exh.31. In due course, report of Chemical Analyser (Exh.32 and Exh.33) were received. On completion of investigation, P.W.No.9 had filed charge sheet against the appellant in the Court of Chief Judicial Magistrate, Parbhani. (e) On committal of trial to the Court of Sessions, learned Additional Sessions Judge, Parbhani framed charge against the appellant at Exh.2 for an offence punishable u/s. 302 of IPC, to which appellant pleaded not guilty and claimed to be tried. It appears that prosecution has examined in all 9 witnesses to substantiate the charge framed against the appellant including 2 sons of appellant by name Zuber (P.W.No.1) and (P.W.No.3) Amer, Habib Kureshi Abdul Karim (P.W.No.4) brother of the appellant, who on receipt of information about the incident, immediately reached the spot, shifted the victim to Parbhani and then to Nanded along with P.W.No.1 Zuber and P.W.No.3 Amer, Dr.Sanjay Baliram (P.W.No.5), autopsy surgeon, Abdul Mujahid Abdul Karim (P.W.No.6) neighbourer, Shaikh Azaruddin (P.W.No.8) witness to the spot panchnama and 3 police officials. Defence of the appellant was of total denial and his false implication in the crime. On appreciation of evidence, learned Additional Sessions Judge had passed the judgment of conviction against the appellant as stated above, which is impugned in this appeal.” 3. We have heard learned counsel Shri.R.M.Deshmukh for appellant and learned A.P.P Shri.B.V.Wagh for respondent/State. We have also perused the record received from the Court below & the judgment impugned in this appeal. From perusal of the record received from the Trial Court, it is clear that the case of the prosecution rests on the evidence of sole eye witness P.W.No.3 Amer, younger son of the appellant and deceased and further based on the other circumstantial evidence. In the light of this, we feel it proper to advert to the evidence of material witnesses. 4. Amer S/o.Babu Qureshi (P.W.No.3) is the younger son of appellant and deceased. At the material time, he was studying in 9th standard and when his evidence was recorded in the Court, he was studying in 10th standard. He has stated in his evidence that at the material time, he was residing with his parents (i.e. appellant and the deceased) his brother Zuber (P.W.No.1) and his 2 sisters. He has further stated that since about 6 months prior to 2/2/2010, his father, appellant used to pick up quarrel with his mother, the deceased/victim. He further states that the appellant was suspecting about the fidelity of his mother. He has stated that the incident in question had occurred on 02/02/2010. It was holiday to his school. He has further stated that on that day, around 3.30 p.m. or 4.00 p.m. or so, appellant, his father came to house in angry mood. He has further stated that his father/appellant asked him, his brother, his sisters and two parental aunts to go outside the room. Accordingly, all of them came outside the room. He further states that thereafter appellant bolted the door from inside. He has further stated that then he went to the house of one Kanade, the next door neighbourer from where he peeped up from the gap of the door to see as to what is going on in the room where the appellant and deceased were. He has further stated that appellant asked his mother/the victim to prepare tea. He has further stated that then he went to the house of one Kanade, the next door neighbourer from where he peeped up from the gap of the door to see as to what is going on in the room where the appellant and deceased were. He has further stated that appellant asked his mother/the victim to prepare tea. When his mother was preparing tea, appellant took up stone pestle and assaulted on the head of his mother. His mother had sustained bleeding injury. He has stated that he had shouted for help and informed his brother Zuber as to what he had seen. He has further stated that thereafter his brother Zuber jumped inside the room and opened the door. He had further noticed that the appellant was standing near his injured mother holding stone pestle in his hand. Appellant threatened them to go out from the room otherwise he will also kill them. He has further stated that on hearing shouts, local residents gathered near their house. Those people then took appellant to the Police Station. He has further stated that then Zuber brought one auto and shifted their mother to Civil Hospital, Parbhani. Medical Officer present in the Civil Hospital, after examining their mother, advised them to shift her to Nanded for further and better treatment. He has further stated that their neighbourer Muzahid (P.W.No.6) then arranged for an ambulance in which their mother was shifted to Nanded. He has further stated that initially his mother was taken to Lotus Hospital at Nanded and later on his mother was admitted in the Government Medical College, Nanded. He has further stated that his mother succumb to the injuries on 06/02/2010. He has identified the stone pestle produced in the Court. This witness was cross examined at length. But the only fact which was brought on record in his cross examination was that he alone was the witness to the incident from the room in the house of their neighbouer Shri.Kanade that the appellant had assaulted with stone pestle on the head of his mother. He has stated in his further cross examination that when his mother was shifted to the hospital, clothes on his person, so also on the person of his brother Zuber were stained with blood as blood was oozing from the injury sustained by their mother. He has stated in his further cross examination that when his mother was shifted to the hospital, clothes on his person, so also on the person of his brother Zuber were stained with blood as blood was oozing from the injury sustained by their mother. Even though omissions are brought on record that he had not stated in his statement before Police that his brother Zuber jumped inside the room from the door, but the same omission was not proved in the cross examination of the Investigating Officer. According to us, evidence given by this eye witness, even though is a child witness, is not shaken in his cross examination to doubt or suspect about the creditability of the evidence given by him. 5. It is in the evidence of P.W.No.1 Zuber Babu Qureshi, elder son of appellant and deceased that appellant have extra marital relation with some lady. Hence appellant used to quarrel with his mother and also used to assault her. He has given similar evidence like his younger brother (P.W.No.3) Amer as to what had happed on the day of incident. He has stated in addition to that evidence which was given by P.W.No.3 that when his brother Amer told him that the appellant had assaulted his mother with stone pestle, he jumped inside the room. At that time, he had noticed that blood was oozing from the injuries sustained by his mother. Appellant was found standing near his mother holding stone pestle in his hand. Appellant told him to go outside otherwise he will also kill him. Then he opened the door. In the meantime, neighbouers gathered there, and took the appellant to Police Station. He has stated that he had arranged for an auto in which his mother was taken to Government Hospital at Parbhani, from where his mother was shifted to the hospital at Nanded. This witness was also cross examined at length. In his cross examination, chance admission was obtained that he has stated to the doctor in Lotus Hospital at Nanded that his mother had sustained injuries due to fall. Statement of this witness was recorded by Police on 06/02/2010. Certain omissions are brought on record in his evidence that appellant drove his paternal aunts Surayya and Munni from the room. Amer informed him that his father assaulted his mother. Statement of this witness was recorded by Police on 06/02/2010. Certain omissions are brought on record in his evidence that appellant drove his paternal aunts Surayya and Munni from the room. Amer informed him that his father assaulted his mother. But those omissions are not proved in the evidence of Investigating Officer as these facts are not found recorded in his police statement. According to us, nothing was elicited in the cross examination of this witness. According to us, the so called omissions brought on record in the cross examination of this witness are not significant to cause damage to the evidence given by this witness. 6. Habib Qureshi Abdul (P.W.No.4) is the brother of appellant. He has stated in his evidence that on receipt of phone message from Muzahid (P.W.No.6), he reached in the Government Hospital, Parbhani. Medical Officer had advised to shift the victim to Nanded. Accordingly the victim was shifted to Nanded in the ambulance & Zumber (P.W.No.1) and Amer (P.W.No.3) were present at that time. Even though evidence of this witness is silent as to how the injured Tahseen had sustained injuries, it has brought on record in his cross examination that after admitting the victim in Lotus Hospital, on his inquiry, Zuber informed him that the appellant had assaulted his mother with stone pestle. He has stated that he remained in the hospital at Nanded till Tahseen took last breath. 7. Abdul Muzahid (P.W.No.6) is the neighbourer of appellant & deceased. He has stated that on 02/02/2010 when he was in his house, on hearing shouts and quarrel from the house of appellant, he came out. He had noticed that the elder son of appellant jumped in the room and opened the door and further noticed that the victim was lying on the ground in injured condition inside the room. Then the local residents gathered there, took the appellant to the Police Station. He has further stated that he gave message to the brother of appellant Hamid (P.W.No.4). It revealed from his cross examination that when he reached the house of appellant, he had noticed that both the sons of appellant were present there. It has been brought on record in his cross examination that in the hospital at Parbhani, sons of appellant informed to the Medical Officer that appellant had assaulted their mother. 8. It revealed from his cross examination that when he reached the house of appellant, he had noticed that both the sons of appellant were present there. It has been brought on record in his cross examination that in the hospital at Parbhani, sons of appellant informed to the Medical Officer that appellant had assaulted their mother. 8. In this backdrop, it was urged by the learned counsel for appellant that P.W.No.1 Zuber and P.W.No.3 were minor at the time of incident and incapable of understanding about the gravity of the incident. Learned counsel would further urge that P.W.No.1 & P.W.No.3 are tutored witnesses. Hence their evidence be discarded. Learned counsel would further urge that the injuries sustained by the deceased are possible due to fall on the stone pestle. He would further urge that the appellant was not present at all at the time of alleged incident, of which evidence is given by the eye witnesses, but the appellant came to know about the incident from his brother Hamid and his wife. He would further urge that the appellant had admitted his wife in the Hospital from where he went to Police station to lodge the complaint, but the police instead of recording his complaint, obtained his signature on the blank paper on which later on false report was prepared. Learned counsel would further urge that the appellant was falsely implicated in the present case, hence requested to allow the appeal. 9. Learned A.P.P. for State has supported the judgment of conviction against the appellant passed by the Trial Court. 10. We have given our cautious consideration to the rival submissions advanced across the bar by both the sides. First we will deal with the medical evidence on record. In the light of evidence given by Dr.Sanjay Bhuktar who had conducted autopsy on the dead body of deceased Tahseen, in clear words, he had opined that the death of victim was caused due to internal injuries mentioned against coloumn no.19, which are corresponding to the external injuries mentioned against coloumn no.17. In his cross examination, he has clearly opined that the injuries sustained by the deceased and noted by him while conducting autopsy on the dead body of deceased, are not possible due to fall of victim. He has also opined that death of the victim was caused due to injuries caused to her. In his cross examination, he has clearly opined that the injuries sustained by the deceased and noted by him while conducting autopsy on the dead body of deceased, are not possible due to fall of victim. He has also opined that death of the victim was caused due to injuries caused to her. In the premise, we have no hesitation to infer that the death of victim Tahseen is an unnatural, homicidal death. 11. On re-appreciation of the evidence led by the prosecution, it is clear that P.W.No.3 Amer, the younger son of appellant and deceased is an eye witness to the incident of assault on the head of victim at the hands of his father i.e. the appellant. Evidence given by him that immediately he had informed about what he had witnessed to his elder brother Zuber, who had immediately jumped from the door inside the room, where the incident had taken place. He had noticed that the appellant/his father was found standing near her injured mother holding stone pestle in his hand. We have taken a note that the evidence given by P.W.No.1 and 3 on this count was not shaken at all in their cross examination even though they were cross examined at length. Apart from it, this incident was immediately disclosed by them to their paternal uncle Hamid (P.W.No.4). They have also disclosed the incident witnessed by them to the Medical Officers, who have treated their injured mother in the Government Hospital at Parbhani, so also in the Lotus Hospital at Nanded and later on in Shankarrao Chavan Government Medical College at Nanded. We do not find any infirmity, any inconsistency in the evidence given by the prosecution witnesses to doubt about their creditability in the manner in which they have given the evidence in the Court. Hence we have to accept the evidence given by P.W.No.1 and P.W.No.3, concluding that the appellant is the assailant of deceased Tahseen. 12. As P.W.No.1 and P.W.No.3 are child witnesses, at this juncture, we may advert to the observations of the Supreme Court in the matter of Suresh Vs. Hence we have to accept the evidence given by P.W.No.1 and P.W.No.3, concluding that the appellant is the assailant of deceased Tahseen. 12. As P.W.No.1 and P.W.No.3 are child witnesses, at this juncture, we may advert to the observations of the Supreme Court in the matter of Suresh Vs. State of U.P. (1981) 2 SCC 569 , wherein it is held by the Apex Court in para no.11 that:- “Prosecution case based solely on the basic evidence of the deceased’s surviving son of five years who was present at the time and place of occurrence and was injured by the accused. Statement of such witness recorded twenty days after the incident owing to his state of mind and injuries sustained by him. On facts, held that testimony of such witness reliable and can be acted upon as regards conviction but as as regards imposition of death sentence.” 13. We may further like to advert to the observations of the Apex Court in the matter of Prakashand another Vs. State of Madhya Pradesh (1992) 4 SCC 225 wherein it has observed in paragraph no. 11 that : “As a child witness aged 14 years gave proper account of the incident, his testimony should not be rejected simply on the ground that because of his tender age, he was likely to be tutored.” 14. We may further like to advert to the observations of the Apex Court in the matter of Suryanarayana Vs. State of Karnataka (2001) 9 SCC 129 wherein it is observed by the Apex Court that - .“the testimony of child witness should not be rejected only on the ground that the witness being of a tender age and the Court may seek corroboration of such testimony not as a rule but only by way of caution. Discrepancies in the testimony, if not in material particulars, would lend credence to it. If the child withstands the cross examination and if the testimony inspires confidence so as to rule out possibility of tutoring, it can be relied upon as the sole basis for convicting the accused. Discrepancies in the testimony, if not in material particulars, would lend credence to it. If the child withstands the cross examination and if the testimony inspires confidence so as to rule out possibility of tutoring, it can be relied upon as the sole basis for convicting the accused. Testimony of sole eye witness, a girl aged 4 years at the time of the incident & 6 years at the time of her deposition before the trial court, that appellant inflicted fatal knife blows on the deceased, held on facts, truthful, was corroborated in material particulars and has no inherent defect in it.” 15. On careful perusal of the evidence of P.W.No.3 Amer, eye witness to the incident and P.W.No.1 Zuber, who immediately jumped inside the room on information given by P.W.No.3 that appellant had assaulted their mother with stone pestle in his hand and noticed that first his mother was lying on the ground and had sustained bleeding injury on her head and second his father was standing near his injured mother holding stone pestle in his hand. We have no hesitation to discard the evidence given by P.W.No.1 and P.W.No.3 on this point and these facts are further corroborated from the evidence of P.W.No.4 and P.W.No.6 that at that time, local residents residing in that locality gathered at the spot. They took the appellant to the Police Station and appellant was given in the custody of police. Cloths on the person of the appellant, smeared with blood, were removed in presence of panchas while putting the appellant under arrest under arrest panchnama Exh.34. Articles found at the place of incident which were seized under spot panchnama Exh.28 i.e. the stone pestle smeared in blood was also seized under the panchnama. It is not under dispute that clothes on the person of Zuber (P.W.No.1) and on the person of Amer (P.W.No.3) were also smeared with blood as the blood was transferred on their clothes which was oozing from the bleeding injuries sustained by their mother. Those clothes were also seized under the panchnama Exh.35. It is not under dispute that clothes on the person of Zuber (P.W.No.1) and on the person of Amer (P.W.No.3) were also smeared with blood as the blood was transferred on their clothes which was oozing from the bleeding injuries sustained by their mother. Those clothes were also seized under the panchnama Exh.35. The fact transpired from the evidence of Investigating Officer that the properties seized during the investigation i.e. the stone pestle seized from the spot under spot panchnama, the clothes on the person of Zuber and Amer seized under panchnama Exh.35, the clothes on the person of appellant seized under panchnama Exh.35 were immediately forwarded to the Chemical Analyser alongwith forwarding letter Exh.31. The report of the Chemical Analyser at Exh.33 shows that the blood group of the deceased was ‘B’. The report of the Chemical Analyser at Exh.32 shows that the blood found on the stone pestle, the blood mixed soil 15 Cri.Appeal No.143 of 2011 collected from the place of incident, the blood found on the clothes of witness Zuber and the blood found on the clothes of the appellant is of ‘B’ group which gives further corroboration to the ocular evidence given by P.W.No.1 and P.W.No.3. Thus on re-appreciation of entire evidence lead by the prosecution during the trial, the case against the appellant stands proved of the murder by him of his wife on 02/02/2010 beyond reasonable doubt. 16. In the light of this, there is no merit in this appeal & accordingly the appeal stands dismissed. We hereby confirm the conviction and sentence recorded by the Trial Court against the appellant. Before parting with the judgment, we appreciate the able assistance rendered by the learned counsel Shri. R.M. Deshmukh, appointed to represent the appellant. We quantify the fees payable to Mr. R.M. Deshmukh in a sum of Rs.5,000/-.