JUDGMENT - R.K. BATTA, J.:---The appellant was tried for murder of his sister, Clementina Fernandes under section 302 of the Indian Penal Code and also for causing disappearance of evidence of the offence under section 201 of the Indian Penal Code. The appellant pleaded not guilty to the charge. The prosecution examined nine witnesses in support of the charge. After assessment of the evidence, learned Additional Sessions Judge by the impugned judgment, which is the subject matter of challenge in this appeal, found the appellant guilty under section 304 (Part II) and 201 of the Indian Penal Code. The appellant was sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs. 1000/- and in default to undergo another six months simple imprisonment under section 304 (Part II) of the Indian Penal Code and was further sentenced to undergo one year rigorous imprisonment and to pay fine of Rs. 500/- and in default to undergo another two months simple imprisonment under section 201 of the Indian Penal Code. The sentences were ordered to run concurrently. The period of detention during the trial from 18-5-1997 was set off in terms of section 428 of the Criminal Procedure Code.

2.The prosecution case, in brief, is that the appellant, his sister Clementina Fernandes and Sydney Fernandes P.W. 6, son of the deceased Clementina Fernandes were staying together. The husband of the deceased Clementina Fernandes was abroad. On 17-5-1997 at about 3-30 a.m. Sydney Fernandes P.W. 6 got up after hearing that something had hit on his mother. On getting up he saw that his mother was bleeding from her head. He also saw that the appellant had caught hold of the neck of his mother. He also found by the side of his mother a wooden rafter, at one end of which, there was blood and the other end was wrapped with newspaper and the banian of the appellant. The appellant told Sydney P.W. 6 not to shout, otherwise he would assault him. Sydney P.W. 6 saw that the appellant kept the rafter in the kitchen under the firewood. Sydney P.W. 6 also saw that there was blood on the pillow. The appellant called Maria Santan Esakki P.W. 1 who is related to him immediately after the incident. The appellant did not inform her as to what exactly had happened, he only asked her to come. When she came at that time the appellant told her that he had assaulted Clementina by a danda. The police recovered the danda at the instance of the appellant under section 27 of the Indian Penal Code (sic Evidence Act). Besides this, the police also recovered the ashes of the pillow on which Sydney P.W. 6 had seen the blood.

3.The defence case on the other hand, is that the deceased had fallen on the ground and that the appellant had not assaulted her.

4.Learned Advocate Shri Lotlikar appearing on behalf of the appellant has submitted before us that the F.I.R. in question had not only been manipulated but antedated and as such the same cannot be looked into. It is contended that in any event Sydney cannot be considered as an eye witness since he had not seen the actual assault and it is too much to expect from a child of twelve or thirteen years that he would wake up at 3.00 a.m. on hearing some noise and witness all what is stated by him. According to the learned Advocate for the appellant, the witness Sydney P.W. 6 seems to have imagined many facts which do not correspond to the reality in as much as that he saw blood on the danda but no blood was found on the danda by the Investigation Officer. According to the learned Advocate for the appellant, the prosecution has not established the charges against the appellant beyond doubt and he is entitled to acquittal. Alternatively, it is urged that the sentence in the facts and circumstances of the case is too harsh and the same requires to be substantially reduced.

5.On the other hand, learned Public Prosecutor, Shri Lawande has submitted that inspite of any lapse on the part of the Investigating Officer, the prosecution with the h

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