JUDGMENT : P.V. Hardas, J. 1. The appellant who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs. 2500/- in default of which to undergo further rigorous imprisonment for one year, and under Section316 of the Indian Penal Code sentenced to rigorous imprisonment for 10 years and to pay fine of Rs. 2500/- in default to undergo further rigorous imprisonment for one year with a direction that both the sentences shall run concurrently, by the 3rd Addl. Sessions Judge, Solapur by judgment dated 29.7.1992 in Sessions Case No. 87 of 1992, by this appeal questions the correctness of conviction and sentence. The facts as are necessary for the decision of this appeal may be stated thus: "P.W. 13 Police Head Constable Bhaskar Gaikwad, who was attached to Karmala Police Station, received a telephone call from the Post Office Parewadi from P.W.6 Shivaji More informing P.W.I3 Police Head Constable Gaikwad about the appellant committing murder of the daughter of Shivaji by throwing a stone on her head. The entry of the said message was taken in the station dairy at Serial No. 344 of 1991 and P.W.I5 PSI Kazi was informed." 2. P.W.15 PSI Kazi Anis Ahmed Suleman, who was attached to Police Station Karmala and was on duty on 11.12.1991 received a call in the police station about the appellant killing his wife. P.W. 15 PSI Kazi was accordingly informed by P.W.I3, Police Head Constable Gaikwad. On receipt of the said message, P.W.I5 PSI Kazi proceeded to the scene of the incident i.e. Village Kettur along with the staff. On reaching the scene of incident he noticed a lady lying in pool of blood in one room and also noticed the appellant tied outside the room. The statement of P.W.6 Shivaji More was accordingly recorded at Exhibit 27. On the basis of the said statement at Exhibit 27, an offence was registered and crime number was informed by P.W.I4 Police Head Constable Changdev Kondiba Babar. Inquest panchanama of the dead body of deceased Ratnamala was drawn at Exhibit 15 and the dead body was referred for postmortem examination. The scene of incident panchanama was then drawn in the presence of P.W. 1 Rohidas Devkate and another panch at Exhibit 15. Inquest panchanama of the dead body of deceased Ratnamala was drawn at Exhibit 15 and the dead body was referred for postmortem examination. The scene of incident panchanama was then drawn in the presence of P.W. 1 Rohidas Devkate and another panch at Exhibit 15. The articles which were found at the scene of incident were seized, which included a pestle and mortar. The samples of blood stains were also drawn and broken pieces of bangles wee seized under panchanama at Exhibit 16. The clothes of the accused were seized under seizure memo at Exhibit 17. The accused was thereafter arrested under arrest panchanama at Exhibit 21. In the presence of panch witnesses the statements of witnesses were recorded and the accused was thereafter referred for medical examination. The clothes of deceased were seized. The seized property was thereafter referred for chemical examination under requisition at Exhibit 40 and 11. Certain copies of the applications made by deceased Ratnamala were seized from the Zilla Parishad School where Ratnamala was working. Further, to the completion of investigation chargesheet against the appellant was submitted. 3. The postmortem on the dead body of deceased Ratnamala was performed by P.W.7 Dr. Ajay Shinde. P.W.7 Dr. Shinde noticed that deceased Ratnamala had sustained the following injuries: "1) CLW 3" x 1" upto bone deep size above right eye. 2) Abrasion size 4" x 2" oblique on dorsum aspect of right bone. 3) Abrasion 2" x 1" on left wrist joint. 4) CLW 2" x 1/2" on right parietal region vertical upto bone deep. 5) CLW 1" x 1/2" on right parietal region upto bone deep transverse. 6) CLW on left parietal above below injury No. 1. A) 3 cm. x 1/2 cm. upto bone deep transverse. B) 4 cm. x 1/2 cm. upto bone deep transverse. C) 3 cm. x 1/2" upto bone deep transverse. D) 2" x 1/2 cm upto bone deep vertical. E) CLW 3cm x 1/2 cm upto bone deep transverse. 7) Crushed injury of left ear upper half part and wholly crushed. 8) CLW transverse 7" x 2" upto bone deep skull part of bone seen on right side of right temporal. 9) Bleeding through both ear and nose Wheal mark on left scapula region obliquely. 10) Wheal mark 6" x " on right scapular region." 4. 7) Crushed injury of left ear upper half part and wholly crushed. 8) CLW transverse 7" x 2" upto bone deep skull part of bone seen on right side of right temporal. 9) Bleeding through both ear and nose Wheal mark on left scapula region obliquely. 10) Wheal mark 6" x " on right scapular region." 4. On internal examination he noticed crack fracture of the right temporal and left temporal bone 2" x 1/2" in length oblique, blood was also noticed in both the hemisphere of the brain. P.W.7 Dr. Shinde therefore opined that the cause of death was due to coma due to head injury with fracture of skull and extra dural sub dural haemorrage. The post mortem report is at Exhibit 29. 5. On committal of the case to the Court of Sessions, the trial court vide Exhibit 2 framed charge against the appellant for offence under Section 302 and 316 of the Indian Penal Code. The appellant denied his guilt and claimed to be tried. The defence of the appellant was that on the date of the incident he was not present at the scene of the incident i.e. in the village where deceased Ratnamala was residing. 6. The trial court, upon appreciation of evidence convicted and sentenced the appellant as aforestated. In order to effectively deal with the submissions advanced before us by Shri Mane, learned Counsel for the appellant and the learned APP it would be useful to refer to the evidence of the prosecution witnesses. 7. Prosecution has examined P.W.6 Shivaji, father of deceased Ratnamala who states that Ratnamala was his daughter who was employed in the Zilla Parishad School prior to her marriage. Shivaji was residing in the tenanted premises along with Ratnamala and the son of Ratnamala. The appellant who was husband of Ratnamala was employed at some other place and used to frequently come and visit Ratnamala. According to Shivaji, appellant was illtreating Ratnamala and was quarreling with her and was demanding money with Ratnamala for effecting transfer. Ratnamala, however, did not give the money which was demanded by the appellant and on that ground there used to be disputes between them. According to Shivaji, the appellant had come to Village Ketur a day prior to the incident. On the day of the incident Ratnamala was boiling milk for her son while P.W.6 Shivaji had gone to answer nature's call. According to Shivaji, the appellant had come to Village Ketur a day prior to the incident. On the day of the incident Ratnamala was boiling milk for her son while P.W.6 Shivaji had gone to answer nature's call. While he was returning P.W. 11 Shankar Tingare shouted and informed him that his daughter was being killed by her husband. P.W.6 Shivaji, therefore, immediately rushed home and noticed Ratnamala lying in pool of blood. On seeing Shivaji, the appellant tried to flee from the said room. P.W.6 Shivaji and another person then chased the appellant and apprehended him and brought him back to the tenanted premises and tied him. According to Shivaji the clothes of the appellant were stained with blood. Shivaji thereafter telephoned the police station and after arrival of the police, the statement of Shivaji was recorded at Exhibit 27. 8. In cross examination Shivaji has admitted that the accused used to hand over his entire salary to his parents. Shivaji has also admitted as true that the accused was demanding money from Ratnamala for effecting his transfer. Shivaji has also admitted as correct that Ratnamala had declined to pay the amount to the accused. Shivaji has further admitted as correct that three other tenants were also residing in the said building along with Ratnamala. Shivaji has further admitted that he was residing with Ratnamala and her son Yeshwant and that the appellant used to frequently visit Ratnamala. Shivaji has also admitted that he had taken the dinner on the previous evening at about 7.30 p.m. Shivaji, however, has denied the suggestion that after taking dinner he had slept in the school as the room which was occupied by Ratnamala was small and was insufficient to accommodate Shivaji. An omission has been elicited in the cross examination that Shivaji had not stated in his report at Exhibit 27 that the appellant was tied and that Shivaji had telephoned the police. An omission is also elicited that Shivaji had not stated that his niece was also present in the house of Ratnamala. 9. Prosecution has also examined P.W.5 Suvarna Salunkhe, a neighbor of Ratnamala who deposes about going to the house of Ratnamala on hearing the hue and cry and noting Ratnamala lying in a pool of blood. Suvarna also deposes about noticing the appellant who was tied. 9. Prosecution has also examined P.W.5 Suvarna Salunkhe, a neighbor of Ratnamala who deposes about going to the house of Ratnamala on hearing the hue and cry and noting Ratnamala lying in a pool of blood. Suvarna also deposes about noticing the appellant who was tied. In cross examination she has admitted that when she had seen Ratnamala lying in pool of blood she was frightened and therefore returned home. She has denied the suggestion that the appellant was not present in the house. 10. Prosecution has also examined P.W.8 Chandrabhaga Ugale who deposes that on hearing the cries of P.W.6 Shivaji, father of deceased Ratnamala, she and the other neighbors had gone to the house of Ratnamala and noticed Ratnamala lying in pool of blood. Shivaji and one Dyandeo thereafter apprehended the appellant and tied him when the appellant attempted to ran away. An omission is elicited in cross examination that she had not stated that the appellant was tied. The said omission has not been proved in the cross examination of the Investigating Officer. 11. Prosecution has also examined P.W. 11 Shankar Tingare, an eye witness to the incident, who deposes that on the day of the incident he had noticed two children crying while standing at the door of room of Ratnamala. On seeing the children he had gone there and on his enquiry the children had disclosed to him that Ratnamala had been assaulted. P.W. 11 Shankar therefore peeped inside and noticed one person i.e. the appellant assaulting Ratnamala by sitting on her astride. P.W. 11 Shankar on noticing the incident cried out to P.W.6 Shivaji who was seen returning and thereafter Shivaji and another person then chased the appellant and apprehended him and tied him. In cross examination he has admitted that with spectacles he can see a person at the distance of about 15 to 20 feet. An omission has been elicited that he has not stated in his previous statement that the assailant was sitting on Ratnamala. An omission is also elicited that he had not stated in his previous statement that the little girl had informed him that Ratnamala was being assaulted. Though this omissions have been elicited, this omissions have not been proved. 12. Prosecution has examined P.W.7 Dr. Ajay Shinde, who has performed postmortem examination. P.W.7 Dr. An omission is also elicited that he had not stated in his previous statement that the little girl had informed him that Ratnamala was being assaulted. Though this omissions have been elicited, this omissions have not been proved. 12. Prosecution has examined P.W.7 Dr. Ajay Shinde, who has performed postmortem examination. P.W.7 Dr. Shinde has also noticed that the appellant had sustained two injuries which are as follows: "i) Contusion on right middle finger, middle and distal phalax contused lacerated wound 1/8th inch x 1/8th inch x 1/4th inch. ii) Abrasion on right forearm, middle part medial aspect measuring 1/4th inch x 1/4th inch." In cross examination P.W.7. Dr. Shinde has admitted as true that the accused is crippled in his right leg. He has admitted as correct that death must have occurred within two hours of last meal. Undoubtedly, deceased Ratnamala was in the family way and was pregnant by 7 months. The Investigating Officer i.e. P.W. 15 PSI Kazi as admitted that there was no special reason for not arresting the appellant till about 3.00 p.m. He has denied that the appellant was arrested else where. 13. Mr. Mane, learned Counsel for the appellant has urged before us that in the light of the evidence of P.W.7 Dr. Shinde that death must have occurred two hours after the last meal, the entire prosecution case falls to ground as admittedly deceased had taken her dinner at 7.30 p.m. on the previous evening. Learned APP has rightly pointed out to us that deceased Ratnamala was a pregnant lady and the possibility of deceased Ratnamala eating a small meal early in the morning cannot be ruled out. Learned APP has further urged before us that in the light of the overwhelming evidence of P.W.5 Suvarna, P.W.6 Shivaji, P.W.8. Chandrabhaga and P.W. 11 Shankar, the presence of the appellant at the scene of the incident i.e. in the house of Ratnamala has been established. Thus, mere finding of partially digested food in the stomach of deceased Ratnamala would not be a factor which would impel the court to discard the overwhelming evidence of the witnesses. 14. It is true that the medical officer has admitted in his cross examination that the death must have occurred two hours after the last meal. Thus, mere finding of partially digested food in the stomach of deceased Ratnamala would not be a factor which would impel the court to discard the overwhelming evidence of the witnesses. 14. It is true that the medical officer has admitted in his cross examination that the death must have occurred two hours after the last meal. The evidence of P.W.6 Shivaji also discloses that deceased Ratnamala had taken her dinner at 7.30 p.m. Admittedly, deceased Ratnamala was in the family way and in such circumstances the possibility cannot be ruled out that deceased Ratnamala may have eaten something early in the morning. In any event, the otherwise overwhelming evidence of the witnesses clearly establishes the presence of the appellant in the house of deceased Ratnamala since previous evening and certainly on the day of the incident. The overwhelming evidence therefore cannot be brushed aside merely on the basis of admission of the medical officer of noticing partially digested food in the stomach of deceased Ratnamala. The evidence on record clearly establishes beyond reasonable doubt that the appellant was present in the house. The testimony of P.W. 11 Shankar establishes that it was the appellant who had assaulted deceased Ratnamala with a pestle and mortar. The clothes of appellant were also found stained with blood of "B" group which matched the blood group of deceased Ratnamala. The blood group of appellant was determined as "A" group. 15. Mr. Mane, learned Counsel for the appellant has urged before us that since the appellant was arrested under arrest panchanama at Exhibit 21 at 3.00 p.m. the defence of the appellant that he was arrested elsewhere is borne out. Mere delay in effecting the arrest would not be a factor which would negative the evidence of prosecution witnesses. As pointed out by us above, the overwhelming evidence clearly establishes beyond reasonable doubt the presence of the appellant in the house. The evidence of the Investigating Officer P.W. 15 PSI Kazi Anis Ahmed Suleman also establishes that he had noticed the appellant at the scene of the incident. The overwhelming evidence therefore points directly to the presence of the appellant. Though the appellant has taken the defence of alibi, he has not established his presence elsewhere. We, therefore, do not find any merit whatsoever in the defence of the appellant. 16. The overwhelming evidence therefore points directly to the presence of the appellant. Though the appellant has taken the defence of alibi, he has not established his presence elsewhere. We, therefore, do not find any merit whatsoever in the defence of the appellant. 16. Thus, after carefully considering the evidence on record, according to us, the prosecution has proved the offence against the appellant beyond reasonable doubt and no interference is required in respect of the finding of guilt arrived at by the trial court. Resultantly, therefore, since the present appeal is sans merit, the same is dismissed, confirming the conviction and sentence of the appellant. His bail bond stands canceled. He is granted eight weeks time to surrender to his bail.