Deepak Gupta, J.

This appeal by the convicted accused is directed against the judgment dated 18.2.2008 delivered by the 11th Additional Sessions Judge, F.T.C., Raipur, Chhattisgarh in Sessions Trial No.113 of 2007, whereby he has convicted and sentenced the accused as follows :-

Conviction	Sentence
U/s 376(1) of IPC	R.I. for 7 years and fine of Rs.1000/-, in failure of depositing fine, 6 months S.I.
U/s 302 of IPC	R.I. for life and fine of Rs.1000/- in default of payment of fine, further S.I. for 6 months.

2. The undisputed facts are that the accused Moti Lal Sahu along with Dulari and victim-G, daughter of Dulari Bai were residing in one room in village Changora Bhata, Raipur. The prosecution case is that Dulari had lost her husband a little more than one year before the date of occurrence. Moti Lal Sahu was known to Dulari and her husband and was in distant relationship, their grandson, He was residing with them. He used to work as a mason. On 25.1.2007 Dulari left her home at about 7.30 am to work in a Hotel. According to her, Moti Lal Sahu used to leave the house at 9.30 am and her daughter used to leave the house at 11.00 am to attend the school. G, at that time, was studying in Class-IX. It has also been established that there was one common key to the room which all these three persons used. The practise was that whoever left the house last, would leave the key above the frame of the door so that the others could use the key when they returned home.

3. The case of the prosecution which is reflected in the Dehati Nalishi (Exhibit P/1) recorded at the instance of Dulari at about 9.35 PM on 25.1.2007 is that when Dulari returned to her house at about 7.00 PM she found that door of the room was locked and the key was not in its usual place. Then, she went to the house of neighbours but did not find her daughter. Then, she went to the house of her elder daughter who lived in the same neighbourhood but did not find G. After some time, Moti Lal Sahu came there and she asked him to look for G at the house of some other relatives and also towards the school. After she had looked around her daughter for some time, she went to the house of her neighbour PW2 Shashi Kumar Sahu and asked him to break open the lock of the door. PW2 then broke the lock of the door. Thereafter Dulari entered the house and she found the body of her daughter was lying on the cot. It had become stiff i.e. rigour mortis had set in. The salwar which her daughter was wearing was in an open condition and it had been pulled down. G had been strangulated by using her Dupatta and the string attached to the mosquito net. She then raised, a hue and cry. According to her, she suspected that Moti Lal Sahu had committed the offence because he had an evil eye on her daughter and a month earlier, there had been some incident where Moti Lal Sahu had misbehaved with her daughter. On the basis of Dehati Nalishi (Exhibit P/1), First Information Report (Exhibit P/23) was lodged. Thereafter, the body of G was sent for postmortem. The postmortem was conducted by PW9, Dr. Vikas Kumar Dhruv. The police investigated the matter. After investigation, the accused was charged for having committed rape on the deceased and murdering her. After trial, he has been convicted and sentenced as aforesaid. Hence, this appeal.

4. We have heard Shri Mirza Kaiser Baeg, learned counsel for the Appellant and Smt. Madhunisha Singh, learned Panel counsel for the State.

5. The statement of PW1, Dulari is virtually identical to what she has stated in the Dehati Nalishi which has already been culled out above and therefore, it is not necessary to repeat the same. However, it is important to note that in this statement, she has stated that one month before the occurrence, accused Moti Lal Sahu had misbehaved with her daughter and thereafter he had apologize to her. A