Judgment : A. S. CHANDURKAR J. :- The appellant takes exception to the judgment dated 29th July 2010, passed by the learned Additional Sessions Judge, Nagpur in Sessions Trial No. 442 of 2007 whereby the appellant-accused No.1 has been convicted for having committed offence punishable under Section 302, 307 and Section 201 of the Indian Penal Code (for short the Penal Code). The appellant has been sentenced to suffer imprisonment for life and to pay fine of Rs.1000/- in default to suffer imprisonment of 10 days for the offence punishable under Section 302 of the Penal Code, to suffer rigorous imprisonment for 7 years and fine of Rs. 1000/- in default to suffer imprisonment for 10 days for offence punishable under Section 307 of the Penal Code and to suffer rigorous imprisonment of 3 years in default to suffer imprisonment of 10 days and to pay fine of Rs. 1000/- for offence punishable under Section 201 of the Penal Code. Out of the fine amount Rs. 3000/- was directed to be paid to Prakash Anandrao Dhande as compensation. The sentences were to run concurrently. 2. The case of the prosecution as is evident from the material on record is that the Police Patil of village Revral was informed that the body of a female with injuries on her head was found. This information led to filing of report by concerned Police Patil after which the offence came to be registered. At Shahapur, Jawaharnagar within the jurisdiction of Police Station Bhandara a boy having head injuries was lying below a bridge and this information was given to the police authorities. The injured boy was in an unconscious condition and he was taken to the hospital. The said boy however subsequently could not give details but merely mentioned his name and address. As these incidents were reported in a newspaper, the Investigating Officer of Shahapur made necessary inquiries in which it was revealed that the present appellant along with one Subhash Gajbhiye-accused no.2 had taken the lady and her son with them after which the dead body of the lady and the injured son were found. After necessary investigation the appellant and accused no.2 were arrested and offences were duly registered against them. As the offences were triable by the Sessions Court, the learned Magistrate committed the trial to the Court of Sessions. After necessary investigation the appellant and accused no.2 were arrested and offences were duly registered against them. As the offences were triable by the Sessions Court, the learned Magistrate committed the trial to the Court of Sessions. On framing charge the appellant as well as accused no. 2 pleaded not to be guilty. On conclusion of trial, the appellant was convicted for the offences punishable under Sections 302, 307 and 201 of the Penal Code. However, accused no. 2 Subhash was acquitted of aforesaid offences. As stated above the appellant has challenged his conviction by preferring appeal under Section 374(2) of the Code of Criminal Procedure Code, 1973 (for short the Code). 3. Shri R. M. Daga, the learned counsel appearing for the appellant assisted by Ms. F. N. Haidari, learned counsel submitted that the appellant was wrongly convicted by the trial Court. It was submitted that the conviction of the appellant is mainly based on circumstantial evidence. However, the chain of events as required to be proved beyond reasonable doubt has not been so proved by the prosecution. Reliance in this regard was placed on the judgment of the Supreme Court in the case of Babu Vs. State of Kerala 2010 ALL MR (Cri) 3342 (S.C.). It is submitted that even the learned Judge of the trial Court has disregarded the deposition of P.W. 17 - Prakash who was the son of deceased- Vimalabai and hence the offence as alleged was not proved against the appellant. It was further submitted that though the prosecution had relied on the report of the Chemical Analyser, this circumstance was not put to the appellant in his examination under Section 313 of the Code. Relying upon the judgment of the Division Bench of this Court reported in Ishwar Pandurang Masram Vs. The State of Maharashtra 2013 ALL MR (Cri) 2750 to which one of us (B. R. Gavai J.) was a party, it was urged that said report could not be taken into consideration. It was further submitted that the seizure of the alleged incriminating articles has not been duly proved. It is also submitted that the Panch witness P.W. 2 has not rightly stated the time when the memorandum under Section 27 of the Indian Evidence Act was duly recorded. It was further submitted that the seizure of the alleged incriminating articles has not been duly proved. It is also submitted that the Panch witness P.W. 2 has not rightly stated the time when the memorandum under Section 27 of the Indian Evidence Act was duly recorded. It is submitted that merely on the basis of surmises prosecution has been initiated against the appellant and he has been convicted without said offence being proved beyond reasonable doubt. The learned counsel, therefore, prayed for allowing the appeal and resultantly sought acquittal of the appellant. 4. Per contra Shri M.K. Pathan, the learned Additional Public Prosecutor for the respondent-State submitted that the appellant was rightly convicted by the trial Court. It was submitted that it had been proved beyond reasonable doubt that the appellant was guilty of offences for which he was charged and tried. It is submitted that the deposition of P.W. 17 - Prakash has not been fully discarded and the same insofar as it relates to involvement of the appellant has been believed by the learned Judge of the trial Court. It is submitted that the Chemical Analyser's report was duly put to the appellant vide Question No. 56 in his examination under Section 313 of the Code. It is further submitted that the seizure of the motorcycle and the clothes of the appellant have been duly proved and the blood stains on said articles match the blood group of the appellant. It is, therefore, submitted that as the prosecution had succeeded in proving the involvement and guilt of the appellant he has been rightly convicted. The learned Additional Public Prosecutor, therefore, prayed for dismissal of the appeal. 5. With the assistance of the learned counsel for the appellant and the learned Additional Public Prosecutor for the respondent we have examined the entire material on record. P.W. 17-Prakash is the son of the accused who it was alleged, was also assaulted by the accused. Said Prakash was aged 10 years when he deposed before the Court. In his deposition he has referred to the presence of his father the appellant along with accused no. 2 and the neighbour on said night. He has further stated that the appellant along with his mother and himself had proceeded on motorcycle. Said Prakash was aged 10 years when he deposed before the Court. In his deposition he has referred to the presence of his father the appellant along with accused no. 2 and the neighbour on said night. He has further stated that the appellant along with his mother and himself had proceeded on motorcycle. He has further stated that in the Jungle the appellant who had brought a stone had dealt blows thereof on his mother. He has further stated that accused no. 2 was not allowing him to see the said assault. He has then stated that he was taken on the motorcycle near the bridge after which his clothes were removed and he was thrown in the water below the bridge. He has stated that he sustained injuries on his forehead and head and was in hospital for about three months. The said witness has been cross-examined. In his cross examination he has stated that his maternal aunt told him about the incident. He has also stated that she told him what he should tell the police. It is to be noted that said Prakash was also a victim of the attack and had received injuries in the said attack. Considering his age and his admission in the cross examination that he was told by his maternal aunt about the incident, his deposition will have to be taken into account with due circumspection. 6. The neighbour Kamalajabai has been examined as P.W. 7. She has stated that the house of the deceased and her house were adjacent to each other. She has stated that on the night of the incident the appellant and accused No.2 had reached the house of Vimalabai. Thereafter tea was prepared. The appellant thereafter asked Vimalabai to accompany him at Bhandara where his son from his first wife who was il1 was to be operated. Prakash who was sleeping was woken up and the three of them left the house. This witness has stated that while leaving the house Vimalabai had handed over the keys of her house to be given to her sister. This witness has been duly cross examined. It was suggested that on account of there being no electricity in the house of Vimalabai she had not seen the appellant and the accused no. 2. She has however denied aforesaid suggestion. This witness has been duly cross examined. It was suggested that on account of there being no electricity in the house of Vimalabai she had not seen the appellant and the accused no. 2. She has however denied aforesaid suggestion. There is nothing extracted in her cross examination to disbelieve her. She being the neighbour of Vimalabai, her presence at that point of time at home was but natural. The prosecution has, therefore, proved that on the night when the incident occurred P.W. 7 had seen the appellant, his wife Vimlabai and Prakash going together for Bhandara. The evidence of P.W. 7 therefore corroborates the evidence of P.W. 17 - Prakash that he and his mother had left for Bhandara with the appellant on said night. 7. Insofar as the cause of death of Vimlabai is concerned the Postmortem Report Ex. 86 has been duly admitted by the counsel for the accused before the trial Court. The injuries as mentioned in the postmortem report as are under : [1] Abrasion at forehead 4 cm x 4 cm. [2] Both eyes - black eye with sub conjunctival hemorrhage present in right eye. [3] Lacerated wound present at right preauxicular area, oblique, 2.5 cm x 0.5 cm x bone deep. [4] Contusion at right cheek 3 cm x 3 cm, reddish. [5] Abrasion at left zygomatic and maxillary area, 4.5 cm x 4 cm. [6] Lacerated wound at right retro auxicular region, oblique 3 cm x 1 cm x bone deep. [9] Lacerated wound at right parieto-temporo frontal area, stellate shaped, of size 12 cm x 8 cm x bone deep. [10] Abrasion, linear, at right anterior neck, horizontal, upper 1/3rd 4 cm x 1.5 cm [11] Abrasion below inj. no. 10 by 2.5 cm, of size 6 cm x 3 cm. [12] Abrasion at left submandibular region 2.5 cm x 2 cm. [13] Linear abrasion at left anterior neck, middle 1/3rd horizontal 3 cm x 1 cm. [14] Abrasion at left lower abdomen 18 cm x 5 cm. [15] Abrasion at left forearm, middle 1/3rd posterior aspect, 1 cm x 1 cm. [16] Postmortem lacerated would present at left ring finger distal 1/3rd, medio palmar aspect, vertical of size 1 cm x 0.5 cm bone deep." Insofar as injuries of Prakash are concerned P.W. 12-Dr. [14] Abrasion at left lower abdomen 18 cm x 5 cm. [15] Abrasion at left forearm, middle 1/3rd posterior aspect, 1 cm x 1 cm. [16] Postmortem lacerated would present at left ring finger distal 1/3rd, medio palmar aspect, vertical of size 1 cm x 0.5 cm bone deep." Insofar as injuries of Prakash are concerned P.W. 12-Dr. Mahendra examined him and he found the following injuries : "[i] Lacerated wound on forehead just above right eyebrow, horizontally placed about 4 X 2 X 1 cm in size. [ii] Lacerated wound on forehead about 4 cm above left eyebrow of 5 X 3 cm in size. [iii] Lacerated wound on scalp at occipital region about 1.5 X 1 X 05 cm in size. [iv] Periortibal oedema on both side present." This witness has opined that the injuries could be caused by hard and blunt object. 8. It is to be noted that initially the Investigating Officer had sought to record the dying declaration of injured Prakash. Vide (Ex. 90) a request in that regard was made to the Executive Magistrate Bhandara. However on 23rd July 2007 the Medical Officer opined vide (Ex. 91) that said Prakash was not fit for giving his statement. 9. Insofar as seizure of the incriminating articles is concerned P.W. 2 Vithal was examined. The seizure panchanama (Ex. 38), memorandum of statement (Ex. 37) and seizure of receipt (Ex. 39) was proved. Thereafter this witness was declared hostile. The articles seized as per seizure panchanama (Ex. 38) were the blood stained clothes said to be of Vimalabai. Similarly a deposit receipt for Rs. 120/- was also seized vide (Ex. 39). Chemical Analyser's Report-(Ex. 22) refers to a full shirt with blood stains of blood group 'O' seized at the instance of the appellant. Blood stains of blood group 'O' were also found on the T-shirt, headlight of the motorcycle and saree of Vimalabai. The blood group of Prakash was identified as 'O' as per (Ex. 95). Similarly as per (Ex. 24) the blood stained gauze piece relating to deceased Vimalabai was also stated to be of blood group 'O'. Similarly as per Ex. 25, the blouse of deceased Vimalabai was stained with blood of group 'O'. Similarly insofar as the cement stone with which it was alleged that the appellant assaulted Vimalabai is concerned, the same was duly seized as per (Ex. Similarly as per Ex. 25, the blouse of deceased Vimalabai was stained with blood of group 'O'. Similarly insofar as the cement stone with which it was alleged that the appellant assaulted Vimalabai is concerned, the same was duly seized as per (Ex. 44) and as per Report of the Chemical Analyser vide (Ex. 22) the blood stains on it were of blood group 'O'. It is, therefore, evident that the seized articles being the clothes of deceased Vimalabai and cement stone with which she was assaulted had blood stains of group 'O'. It may be noted that said stone was weighing about 5 to 6 kgs. as stated by Investigating Officer-P.W. 15 Ramesh Tayade. 10. Insofar as the motorcycle on which the appellant had proceeded towards Bhandara on the date of the incident is concerned, the prosecution had examined P.W. 19-Ashok Sarode who has stated that he had sold the vehicle in question to the appellant on 21st August 2006 for Rs. 11,000/-. As stated in the report of the Chemical Analyser said vehicle was having blood stains of blood group 'O' on its headlight and silencer. It is, therefore, proved that vehicle seized with blood stains belonged to the appellant. 11. The prosecution has also examined Parvatabai P.W. 9 who has stated that her daughter was married with the appellant in the year 1991 but the appellant was not treating her daughter properly. She has stated that prior to 10 years the appellant had murdered her daughter by assaulting her with knife. However, in her cross examination she has stated that no prosecution was launched against the appellant with regard to aforesaid allegations. 12. From the aforesaid material it can be said that the prosecution has succeeded in proving the fact that it was the appellant who was last seen with deceased Vimalabai and their son Prakash. It has further succeeded in proving that on the fateful night it was the appellant who assaulted Vimalabai with a cement stone weighing about 5 to 6 kgs. resulting in her death. It is further proved that thereafter the appellant's son Prakash was thrown from bridge resulting in head injuries which rendered him unfit to give any statement. It has further succeeded in proving that on the fateful night it was the appellant who assaulted Vimalabai with a cement stone weighing about 5 to 6 kgs. resulting in her death. It is further proved that thereafter the appellant's son Prakash was thrown from bridge resulting in head injuries which rendered him unfit to give any statement. The seizure of the appellant's clothes with blood stains, the blood stains on his motorcycle as well as on the cement stone, all of blood group 'O' clearly indicate that it was the appellant who was responsible for having caused the homicidal death of the appellant and had attempted to kill Prakash. 13. Insofar the submission made on behalf of the appellant regarding proof of the chain of events as the case of the prosecution was based on circumstantial evidence, it is to be seen that in the present case P.W. 17-Prakash who was the injured witness has stated about the aforesaid incident and the involvement of the appellant. His evidence cannot be discarded merely because he has stated that his maternal aunt had told him about the said incident. His tender age of 10 years will be required to be taken into account. The fact that his injuries have been duly proved along with seizure of his Chappals from the site of the incident are sufficient to lend credence to his version. Further P.W. 7 the neighbour has also corroborated the last seen theory of the appellant with deceased Vimalabai and Prakash. The appellant in his statement under Section 313 of the Code has not explained the blood stains on his clothes and motorcycle (Question No. 51 and 52). It therefore cannot be said that the chain of events has not been duly proved. The present case is not based solely on circumstantial evidence. The deposition of P.W. 17 and P. W. 7 along with Report of the Chemical Analyser merely point out the involvement of the appellant in commission of aforesaid offence. Hence the reliance placed by the learned counsel on the judgment of the Supreme Court in the case of Babu (supra) is misconceived. 14. The deposition of P.W. 17 and P. W. 7 along with Report of the Chemical Analyser merely point out the involvement of the appellant in commission of aforesaid offence. Hence the reliance placed by the learned counsel on the judgment of the Supreme Court in the case of Babu (supra) is misconceived. 14. Insofar as the contention made on behalf of the appellant as regards reference not being made to the Chemical Analyser's report to the accused in his examination under Section 313 of the Code is concerned, the said submission is without any merit inasmuch as said circumstance has been duly put to the appellant vide Question No. 56. There is however no explanation given by the appellant to said incriminating material. In view of such questions being duly put to the appellant, the ratio of the judgment in the case of Ishwar (supra) is not applicable to the facts of the present case. 15. As regards the submission made on behalf of the appellant regarding discrepancies while effecting seizure of incriminating articles is concerned, P.W. 2 Vithal in his cross examination has stated that the clothes seized as per (Ex.38) were at 8.00 P.M. The time of seizure recorded at (Ex. 38) is 12.45 P.M. to 2.00 P.M. This witness has however admitted his signature on (Ex. 38). Thereafter he was declared hostile. In his cross examination by the prosecution, he has admitted that the accused led the police and panchas after which the accused produced the clothes that were seized as per (Ex. 38). Hence, merely on account of some minor discrepancies regarding time when the seizure was effected, the version of this witness cannot be entirely discarded. It is to be noted that the witness was deposing after almost ten months. Hence, such minor discrepancy which was not of a material nature would not wash out his entire testimony. His version therefore cannot be discarded. 16. Hence after scrutinizing the entire material on record and after giving out anxious consideration to the same we find that the prosecution has succeeded in proving the involvement and guilt of the appellant. It is proved beyond reasonable doubt that it is the appellant who is responsible for the homicidal death of Vimalabai and for the attempt to cause death of Prakash. The learned Sessions Judge in our opinion has rightly convicted the appellant for the aforesaid offences. It is proved beyond reasonable doubt that it is the appellant who is responsible for the homicidal death of Vimalabai and for the attempt to cause death of Prakash. The learned Sessions Judge in our opinion has rightly convicted the appellant for the aforesaid offences. We find that while doing so, he has taken into account the entire material on record. Similarly, we find that the acquittal of accused no.2 by the trial Court cannot be faulted as there is no evidence on record to hold him so guilty. We, therefore, find that there is no merit in the criminal appeal. Hence the appeal fails and the same is accordingly dismissed. Appeal dismissed.