JUDGMENT SMT. V.K. TAHILRAMANI, J. 1. This appeal is directed by the appellant-original accused No. I against the judgment and order dated 02.12.2005 passed by the learned 12th Ad-hoc Additional Sessions Judge, Pune in Sessions ease No. 459 of 2004. By the said judgment and order the learned Sessions Judge convicted the appellant under Sections 302 and 506(2) of IPC and sentenced him as follow:- Convicted Sentenced to Under Section 302 of Imprisonment for life and IPC to pay a fine on 1000 IDRI for 3 Months. Section 506(2) To suffer RI for 1 Year and of IPC to pay a fine on 500/- IDSI for 1 Month. The learned Sessions Judge also directed that the substantive sentences of imprisonment shall run concurrently. 2. The prosecution case briefly stated is as under: (i) P.W. 1 Shivaji was residing at Jambhulwadi, Pune in the room of one Jambhale. Deceased Namdeo, original accused No.3 Kalu and P.W. 4 Santosh also used to reside in the said room. Deceased Namdeo was having affair with Kavita who was the daughter of original accused No.2 Marutrao. Marutrao used to tell Namdeo not to tease his daughter Kavita. The present appellant was the son of Marutrao and brother of Kavita. (ii) The incident occurred in between 18th & 19th July 2004. On 18.07.2004 after 07.00 p.m., P.W.1 Shivaji, original accused No.3 Kalu, deceased Namdeo and P.W. 4 Santosh were in the room. At about 1.00 a.m. to 1.30 a.m., P.W. 1 Shivaji woke up on account of jerk of spear to his body. When he woke up. he saw the appellant was holding spear in his hand. The appellant gave a blow of spear on the head of Namdeo. Thereafter, the appellant kept the spear down and gave a blow with cement block on the head of Namdeo. At that time, original accused No. 3 Kalu caught hold of legs of Namdeo. Due to the blow, Namdeo started bleeding. At that time, the light was on, hence, P.W. 1 Shivaji and other witnesses could witness the incident. After the assault, when the appellant and original accused No.3 Kalu were leaving, P.W. 1 Shivaji and others saw that original accused No.2 Marutrao was standing at the door. While leaving, the appellant gave threat that if the witnesses disclose this incident to anyone, they will kill them. Thereafter, the appellant latched the door from outside and went away. After the assault, when the appellant and original accused No.3 Kalu were leaving, P.W. 1 Shivaji and others saw that original accused No.2 Marutrao was standing at the door. While leaving, the appellant gave threat that if the witnesses disclose this incident to anyone, they will kill them. Thereafter, the appellant latched the door from outside and went away. The condition of Namdeo was serious and blood was oozing from his head. Thereafter, P.W. 1 Shivaji somehow managed to open the door. At that time, Namdeo was already dead. Then, P.W. 1 Shivaji lodged FIR. Thereafter, investigation commenced. (iii) The dead body of Namdeo was sent for postmortem. P.W. 6 Dr. Suryavanshi conducted the postmortem on the dead body of Namdeo. He found following external injuries on the dead body of Namdeo: 1. Contused lacerated wound over left temporal region, horizontal slightly oblique 9 cms long gaping 6 cms above left ear with fracture underlying bone and brain matter was coming through it angles and margins razed. 2. Contused lacerated wound 3 cms above lateral margin of left eyebrow on forehead I x0.7 cms. 3. Contused lacerated wound at lateral end of left eyebrow 1 x 0.8 cms. 4. Abrasion over dorsum of right hand between 3rd and 4th metacarpal space 1 x 1 cms and over 5th knuckle of right hand. According to Dr. Suryavanshi, all these injuries found on the person of dead body were antemortem. On internal examination, the Doctor found the following injuries: 1. Haemotoma under scalp at frontal and left temporal region 14 cms in size. 2. Fracture to right temporal frontal and left temporal bone and it was crack of right temporal frontal and left temporal bone and displaced type of frontal bone, displaced and depressed on left temporal bone with brain matter coming through it left temporal bone fracture into multiple piece left ear. 3. Dura matter rupture at left temporal region. 4. Laceration of left temporal region of cerebral cortex. 5. Sub arachnoid hemorrhage over right frontal parietal and temporal region of cerebral cortex. 6. Contusion over coastal surface upper part of lower lobe of left lung. On internal and external examination of dead body, the Doctor was of the opinion that the cause of death was due to head injury which may have been caused by hard and rough edge object which is heavy. According to Dr. 6. Contusion over coastal surface upper part of lower lobe of left lung. On internal and external examination of dead body, the Doctor was of the opinion that the cause of death was due to head injury which may have been caused by hard and rough edge object which is heavy. According to Dr. Suryavanshi, the injuries are sufficient to cause death in ordinary course of nature. After completion of investigation, charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 3. Charge came to be framed against the appellant under Section 302 of IPC simplicitor or in the alternative under Section 302 read with Section 34 of IPC and also under Section 506(2) of IPC simplicitor or in the alternative under Section 506(2) read with Section 34 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced in this case, the learned Sessions Judge convicted and sentenced the appellant as stated in paragraph I above. Hence, this appeal. 4. We have heard the learned Advocate for the appellant and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Advocates for the parties, the judgment delivered by the learned Sessions Judge and the evidence on record, for the reasons stated below, we are of the opinion that the appellant did assault Namdeo and caused his death. 5. The conviction is mainly based on the evidence of two eye witnesses i.e. P.W. 1 Shivaji and P.W. 4 Santosh. P.W. 1 Shivaji is also the first informant in the present case. P.W. 1 Shivaji has stated that he knew all the accused including the appellant. He also knew the deceased. He has stated that on 18.07.2004 after 07.00 p.m., P.W. 1 Shivaji, original accused No.3 Kalu, deceased Namdeo and P.W. 4 Santosh were in the room. At about 1.00 a.m. to 1.30 a.m., P.W. 1 Shivaji woke up on account of jerk of spear to his body. When he woke up, he saw the appellant was holding spear in his hand. The appellant gave a blow with spear on the head of Namdeo. At about 1.00 a.m. to 1.30 a.m., P.W. 1 Shivaji woke up on account of jerk of spear to his body. When he woke up, he saw the appellant was holding spear in his hand. The appellant gave a blow with spear on the head of Namdeo. Thereafter, the appellant kept the spear down and gave a blow with cement block on the head of Namdeo. At that time, original accused No. 3 Kalu caught hold of legs of Namdeo. Due to the blow, Namdeo started bleeding. At that time, the light was on, hence, P.W. 1 Shivaji and other witnesses could witness the incident. After the assault, when the appellant and original accused No.3 Kalu were leaving, P.W.1 Shivaji and other saw that original accused No.2 Marutrao was standing at the door. While leaving, the appellant gave threat that if the witnesses disclose this incident to anyone, they will kill them. Thereafter, the appellant latched the door for outside and went away. The condition of Namdeo was serious and blood was oozing from his head. Thereafter, P.W. 1 Shivaji somehow managed to open the door. At that time, Namdeo was already dead. Then, P.W. 1 Shivaji lodged his FIR 6. P.W. 4 Santosh is the second eye witness in this case. He has stated that he heard the noise of cement block, hence he woke up. He saw the appellant holding spear in his hand. The appellant gave blow of spear on the head of Namdeo. After keeping the spear aside, the appellant gave blow with the cement block on the head of Namdeo. 7. Both the eye witnesses have stated that at the time of the incident, the light was on. As far as P.W. 4 Santosh is concerned, Mr. Bhadbhade, learned Advocate for the appellant has submitted that if P.W. 4 Santosh got up on hearing the noise of cement block that means the incident was already over because P.W.1 Shivaji has stated that first the appellant assaulted Namdeo with spear and then the appellant assaulted Namdeo with a cement block. Mr. Bhadbhade submitted that in such case, P.W. 4 Santosh could not have witnessed the incident and hence, his claim that he is an eye witness to the incident cannot be believed. 8. Mr. Bhadbhade submitted that in such case, P.W. 4 Santosh could not have witnessed the incident and hence, his claim that he is an eye witness to the incident cannot be believed. 8. As far as the above contention is concerned, it is noticed that P.W. 4 Santosh has stated .that when he woke up, he was not fully awake. Thus, it appears that on hearing the noise of cement block, this witness has got up from his sleep and thereafter, he has witnessed the incident. None of the witnesses have stated that the cement block was lying in the room. In such case, the cement block would have been brought by the accused persons and kept in the room and thereafter, the appellant has assaulted Namdeo with cement block. While keeping the cement block down, it must have made a sound or it is possible that as P.W. 4 Santosh was only half awake he thought the noise heard by him was that of cement block. Thus, the evidence of P.W. 4 Santosh that he heard noise of block would not, in our opinion, falsify his evidence that he witnessed the appellant assaulting Namdeo with a spear and cement block. 9. Thereafter. Mr. Bhadbhade submitted that P.W. 4 Santosh in his examination in chief has stated that when he woke up, he saw the appellant giving a blow of spear on the chest of Namdeo. Mr. Bhadbhade pointed out that medical evidence shows that there was no injury on the chest of Namdeo. Mr. Bhadbhade submitted that this shows that P.W. 4 Santosh has not actually witnessed the incident and thus, his evidence cannot be believed. As far as this aspect is concerned, it is noticed that in cross-examination of this witness, it has been brought on record that in his statement to the police, P.W. 4 Santosh had stated that the appellant gave blow of spear on the head of Namdeo. It has been elicited in cross-examination of P.W. 4 Santosh that the statement that accused Shamsunder gave blow of spear on the head of Namdeo is a correct statement and that his statement that the accused Shamsunder gave blow of spear on the chest of Namdeo is not correct. It has been elicited in cross-examination of P.W. 4 Santosh that the statement that accused Shamsunder gave blow of spear on the head of Namdeo is a correct statement and that his statement that the accused Shamsunder gave blow of spear on the chest of Namdeo is not correct. It is clear that P.W. 4 Santosh first in point of time i.e. when his statement was recorded by the police stated that the appellant gave a blow of spear on the head of Namdeo. Thus, from cross-examination of P.W. 4 Santosh, it becomes clear that the correct state of facts is that the appellant assaulted Namdeo with a spear on his head. Thus, much capital cannot be made out of the fact that in his examination-in-chief, P.W. 4 Santosh has first stated that the appellant assaulted Namdeo with a spear on the chest because later on he has stated that the said statement is incorrect and the appellant gave a blow with spear on the head of Namdeo. 10. Mr. Bhadbhade further submitted that the answers elicited in cross-examination which are damaging to the case of the appellant ought not to be taken into consideration. As far as this contention is concerned, we are afraid do not agree with this submission. 11. Mr. Bhadbhade, thereafter, submitted that P.W. 4 Santosh has not properly identified the appellant in the Court, hence, his identification cannot be relied on. Mr. Bhadbade further submitted that if identification cannot be relied on, the evidence of P.W. 4 Santosh is of no use to the prosecution. In support of his contention that P.W. 4 Santosh had not properly identified the appellant in the Court, he tried to draw our attention to the fact that in the Court P.W. 4 Santosh first identified accused No.3 Kalu as the 'appellant' but it appears that on that day, due to heavy rain fall and poor light, as this witness had identified the appellant from a distance, hence, he did not properly identify the appellant, however, when this witness went near the accused persons, he properly identified the appellant and other accused persons. Looking to the fact situation which was present in the Court at the time when P.W. 4 identified the appellant from a distance but on going near the accused persons, he has properly identified the appellant and the other accused persons in such case, we are of the opinion that no benefit can be given to the appellant. 12. The evidence of both the eye witnesses i.e. P.W.1 Shivaji and P.W. 4 Santosh shows that the appellant assaulted Namdeo on the head with a spear and thereafter, he has assaulted Namdeo on the head with a cement block. This cement block was weighing about 7 to 8 Kgs. The spear and cement block were found at the spot of the incident. Nothing has been elicited in cross-examination of both these eye witnesses so as to disbelieve their testimony. Moreover, the evidence is corroborated by the medical evidence. P.W. 6 Dr. Suryavanshi who performed the postmortem on the dead body of Namdeo has deposed about the injuries and it is found that the injuries are consistent with the version given by the eye witnesses. Looking to all these facts, we find that there is no merit in the appeal. In the result, we pass the following order:- ORDER i. The appeal is dismissed. ii. Office to communicate this order to the Superintendent of prison where the appellant is lodged and to the appellant/original accused. Appeal dismissed.