JUDGMENT

Ravindra Maithani, J. (Oral)

Appellant Abhishek Tiwari @ Kishmish preferred Criminal Appeal No.387 of 2018, against the judgment and order dated 30.08.2018, passed in Sessions Trial No. 118 of 2016, State Vs. Abhishek Tiwari and Others. By the impugned judgment and order, appellant Abhishek has been convicted of the charges under sections 376 and 302 IPC and sentenced as hereunder:-

“(i) Life imprisonment and a fine of Rs.40,000/- under Section 376 IPC. In default of payment of fine, simple imprisonment for a further period of one year.

(ii) Life imprisonment and a fine of Rs.40,000/- under Section 302 IPC. In default of payment of fine, simple imprisonment for a further period of one year.

All the abovementioned sentences shall run concurrently."

2. This is a story of brutal sexual assault on an old lady of 70 years. She could not survive and died, while under treatment. It all happened on 24.03.2016. The victim was staying with her son-in-law, PW1. PW1, son-in-law of the victim and his wife PW2, had gone out from their house to celebrate the festival of Holi. When they returned at about 11:00 AM, they saw the appellant and two others bringing the victim from the fields. As soon as they saw PW1, son-in-law of the victim, they dropped the victim and ran away. The victim was under great pain and distress and she told to PW1, her son-in-law, that the appellant and two others forcibly raped her. The victim was taken to hospital, but during treatment, she died. A report of the incident was lodged by PW1, son-in-law of the victim at 09:57 AM on the same day, based on which, the case was lodged. Inquest was prepared on 25.03.2016 at 10:00 AM by PW10 Ramesh Chandra Bhatt. Post mortem of the victim was conducted on 25.03.2016 at 02.10 PM. In fact, when taken to hospital, on 24.03.2016 at 04:10 PM in the hospital, PW8 Durgesh Kumar had examined the victim and referred her to the district hospital, where PW9 Sonali Mandal had examined the victim. Their statement would be referred to in a short while. Investigation was carried out. Investigating Officer took into custody the clothes of the victim and of the appellant. They were sent for forensic examination. The forensic examination report concludes that blood was detected on the clothes recovered from the victim. There was no report with regard to the DNA match. After investigation, chargesheet was submitted against appellant and two others. Cognizance was taken.

3. On 16.08.2016, charges under sections 376-D and 302 r/w 34 IPC were framed against the appellant and two others, to which, they denied and claimed trial.

4. The prosecution, in order to establish the case, examined as many as fourteen witnesses, namely, PW1, son-in-law of the victim, PW2, daughter of the victim, PW3 Sunil, PW4 Jata Shankar, PW5 Rajkumar, PW6 Rajendra, PW7 Dr. Praveen Kumar Srivastava, PW8 Durgesh Kumar, PW9 Sonali Mandal, PW10 Ramesh Chandra Bhatt, PW11 R.C. Makholia, PW12 Manish Upadhayay, PW13 Harish Arya and PW14 Anita Saini.

5. Appellant and two others were examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code'). According to the appellant and two others, they are innocent and have been falsely implicated.

6. After hearings the parties, based on the evidence, the learned court below, by the impugned judgement and order, acquitted the two other co-accused, but, convicted and sentenced the appellant, as stated hereinbefore. Aggrieved, the instant appeals.

7. Heard learned counsel for the parties and perused the record.

8. Learned counsel for the appellant would argue that the statement of PW1, son-in-law of the victim and PW2, daughter of the victim are contradictory, inconsistent and wavering. They are not fully supporting FIR, which was lodged by PW1, son-in-law of the victim. It makes their statement wholly unreliable. According to the prosecution, there was lot of crowd on the spot, but no independent witness has been examined. The first informa