JUDGMENT - VISHNU SAHAI, J.:---The appellant aggrieved by the judgment and order dated 17th May, 1991, passed by the 5th Additional Sessions Judge, Thane, in Sessions Case No. 360 of 1990, whereby he has been convicted and sentenced to undergo imprisonment for life for the offence under section 302 I.P.C. has come up in appeal before us.

2. In short the prosecution case runs as under :--

At the time of incident the appellant was working as a Manager with one Zahid Sheth, who was selling tea, Vada and other eatables at Kalyan Railway Station. The appellant had the habit of drinking liquor; of assaulting and teasing girls; of taking away small boys from the Railway Platform; and of misbehaving with them.

The deceased Bablu was aged about 8 to 9 years and used to beg on the Railway platform.

On 25th January, 1990, at about 1.30 a.m. P.W. 3 Nanak Punjabi, who was supplying tea and other items to the hawkers working with Zahid Sheth was sitting on Platform No. 7. P.W. 4 Maruti Bhoir who was bearer of the running room at Kalyan Railway Station situated on Platform No. 7 was on duty at that time. P.W. 2 Ashok Patil, who was working as a Coolie on Kalyan Railway Station was sleeping at that time on Platform No. 7. The deceased Bablu used to also sleep on the said platform at a place which was at five minutes walking distance from the place where Ashok Patil used to sleep.

At about 1.30 a.m. on 25-1-1990 Ashok Patil and Nanak Punjabi saw appellant in a drunken condition. He woke-up Bablu and took him behind the back side of the running room. About that time Maruti Bhoir (P.W. 4) heard the cries of a small boy coming from the back side of the running room. He went and informed Ashok Patil about it. It appears that they did nothing that night.

Next day i.e. 26th January, 1990, at about 8 a.m. Arjun Sayaji Sav (P.W. 1) who was serving as a watchman at Kalyan Railway Stores Department saw a corpse of a small boy aged about 8 to 9 years lying behind the western side wall of the running room.

3. The evidence of Arjun Sayaji Sav (P.W. 1) is that on finding the corpse he went to Kolsewadi Police Station and lodged his F.I.R. which was recorded by P.S.I. Raja Hudyalkar, who on its basis registered an offence under section 302 I.P.C.

4. The investigation was done in the usual manner by P.S.I. Hudyalkar.

On 26th January, 1990, he prepared panchanama of scene of offence as also that of corpse of the deceased. The same day he recorded statements of some witnesses and arrested the appellant.

He took into possession the full shirt, trousers and the under-pant which the appellant was wearing, under a panchnama Exhibit 18. During the course of interrogation the appellant admitted that he would produce clothes. Consequently the next day i.e. 27-1-1990, P.S.I. Hudyalkar alongwith public panch Gurcharan Singh P.W. 5 led by the appellant proceeded to the place of the incident. From the bushes behind the boundary wall which was situated behind the boundary wall of the running room; on the pointing out of the appellant, a quilt was recovered under a panchnama.

The said quilt alongwith the under-wear of the appellant and the cotton swab and paper pieces collected by the autopsy surgeon was sent to the Chemical Analyst. On quilt and under-wear the Chemical Analyst found human blood and semen bearing A group. On the cotton swab and pieces of paper neither any blood nor semen was found.

After completing the investigation P.S.I. Hudyalkar submitted the charge sheet against the appellant on 4-4-1990.

5. Going backwards the autopsy on the corpse of the deceased Bablu was conducted on 26-1-1990 by Dr. Arun Sable (P.W. 7), who found on it the following three (3) anti-mortem injuries:--

(1) Abrasion 1½ x ½" right side of lower mandible region.

(2) Abrasion 1" x 1" on right side of forehead.

(3) Contusion on the right side infra scapular region 1" x 1" blackish in colour.

In the opinion of Dr. Sable, death was the result of asphyxia due to suffocation. As mentioned earli

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