Chandra Bhushan Bajpai, J.

This appeal has been filed against the judgment of conviction and order of sentence dated 3-4-1999 passed by the Second Additional Sessions Judge, Balodabazar in Sessions. Trial No. 138/98 convicting the present accused/appellant along with co-accused Kamlabai under Section 315 read with Section 34 of the Indian Penal Code, 1860 (in short 'the IPC) and Section 318 of Section 34 of the IPC and sentencing rigorous imprisonment for 7 years and rigorous imprisonment for 1 year to each accused.

2. Co-accused Kamlabai had preferred any appeal against the said judgment or not, to ensure this fact, this Court directed vide order dated 22-6-2009 directed Registry to verify whether there is appeal filed on behalf of Kamlabai or not. As per report of the enquiry/filing clerk of the Registry dated 20-7-2009, no any criminal appeal has been filed in the name of Kamlabai pertaining to Sessions Trial No. 138/98. With this, this fact is recorded that the co-accused Kamlabai had not preferred any appeal against her conviction.

3. Conviction is impugned on the ground that without there being any iota of evidence, the Court below convicted and sentenced the appellant as aforementioned and thereby committed illegality.

4. As per case of the prosecution, on 3-2-1998 prior to 5.00 a.m. morning in the night, accused Devnath gave medication for the purposes to prevent child being born alive as the co-accused Kamlabai was pregnant on account of illegal relation from accused/appellant Devnath and after consumption of such medication, co-accused Kamlabai aborted a dead child of about 8 months. Thereafter, for the purpose of concealing the birth of said dead child both the accused secretly disposed the dead body of said 8 months child born as miscarriage. Both the accused buried the dead body in the kitchen garden behind the house of co-accused Kamlabai. Also as the accused/appellant committed sexual rape without consent and will of co-accused Kamlabai, the matter was reported to Police Station Suhela by the villagers vide report Ex.-P/13 dated 5-2-1998, Suhela police registered the dehati merg after exhuming the dead body as Ex.-P/14 which is later on registered as Ex.-P/12. After merg enquiry, FIR Ex.-P/15 was recorded by the Sub-Inspector (Police) R.P. Sharma (PW-15). The dead body so exhumed was sent for medical examination. Doctor T. Khes (PW-9) examined said dead infant and prepared autopsy report Ex.-P/10 and opined that the infant was born dead, the infants age is 8 months, due to taking medicine abortion may occur. The prosecutrix/co-accused was also sent for MLC. Doctor Smt. Reeta Chaba (PW-11) examined the prosecutrix/co-accused gave her report Ex.-P/11 and opined that the prosecutrix was pregnant, the baby was delivered about two weeks back, sign of recent delivery as described above are present. Suhela police recorded the statements under Section 161 of the Code of Criminal Procedure (in short ' the Code) and also arrested both the accused, prepared spot map and after necessary investigation charge-sheet was filed before the Additional CJM, Balodabazar who registered the same as Criminal Case No. 388/1998 and vide order dated 11-3-1998 committed the same towards the Court of Sessions. The learned Additional Session Judge received the case on transfer and conducted the trial.

5. Present accused/appellant was charged for the offence under Section 315 read with Section 34, Section 318 read with Section 34 of the IPC and Section 376 of the IPC. Other co-accused Kamlabai was also charged for the offence under Section 315 read with Section 34 and Section 318 read with Section 34 of the IPC.

6. In order to prove guilt of both the accused, prosecution examined 16 witnesses. Statements of both the accused were recorded under Section 313 of the Code wherein they denied the circumstances appearing against them, pleaded innocence and false implication in crime in question. In their defence, the accused examined Shrithari (