Judgment A.K.Sinha, J. 1. This appeal has been directed against the judgment and order of conviction and sentence passed by the IInd Additional Sessions Judge, Begusarai, in Sessions Case Nos. 104 of 1997/35 of 1997 whereby and whereunder both the appellants have been convicted under Sec. 302/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life and they have further been convicted under Sec. 376/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years each. Both the sentences were directed to run concurrently. 2. Fardbeyan of the informant Mithlesh Kumari was recorded on 22-4-1996 at 2.00 a.m. and the prosecution as un-folded in the Fardbeyan is that the informant alongwith her brother Nanda Sah aged 7 years and sister Rupan Kumari aged 10 years were sleeping in the outer room of the house and their mother Parvati Devi, deceased was sleeping on cot in the inner room. At about 11.30-12.00 p.m., the informant heard some groaning sound coming out from the room of her mother and so she woke up and went inside her mothers room to see as to what is happening inside. In the meantime, the informant saw Md. Anwar, Md. Asgar and Singheswar Choudhary coming out from the room of her mother. The informant identified them in the electric light as also in the light coming from the Petrol Pump situated besides her house. When the informant went inside the room of her mother, she saw that her mother is hanging and she was dead, She also noticed that she was in half naked position and semen was coming out from her private part. The infor-mant, therefore, suspected that the above named three accused committed rape with her mother and also mur-dered her by hanging her. The informant has alleged that while leaving the house the appellant Md. Asgar assaulted her with danda causing injury on her finger and all of them threatened her that if she discloses their names to any anyone she will also meet the same fate. 3. The Fardbeyan was recorded by Sub-Inspector Jagdish Jha (PW 8) at 2.00 a.m. i.e. after 2-2 1/2 hours of the alleged occurrence. A case under Secs. Asgar assaulted her with danda causing injury on her finger and all of them threatened her that if she discloses their names to any anyone she will also meet the same fate. 3. The Fardbeyan was recorded by Sub-Inspector Jagdish Jha (PW 8) at 2.00 a.m. i.e. after 2-2 1/2 hours of the alleged occurrence. A case under Secs. 302, 376/34 of the Indian Penal Code was registered against all the three accused named in the Fard-beyan and the police submitted chargesheet under the aforesaid counts on the basis of which cognizance was taken and the case was committed to the Court of Sessions. 4. All the three accused were charged under Secs. 376/34 of the Indian Penal Code as well as 302/34 of the Indian Penal Code, to which they pleaded not guilty. 5. The case of the defence is that the accused persons have been falsely implicated in this case as the deceased was a lady of loose character and outsiders used to visit her house which was protested by the accused persons so, due to this reason they have been falsely implicated. 6. It may be stated at the outset that accused Md. Anwar was acquitted of the charges for lack of evidence on the point of identification. 7. In order to prove the charges the prosecution examined as many as eight witnesses. 8. PW 5 Dr. Ashok Kumar Sharma is the doctor, who conducted postmortem examination on the dead body of the deceased on 22-4-1996 at 10.40 a.m. and found the following ante-mortem injuries on the person of the deceased. Deep legature mark at supra hyoid region 1/2 deep 3/4" wide extending post auricular region more on left side. 9. In the opinion of the doctor, death was caused due to asphyxia by hanging, The age of the injuries was between 6-24 hours from the time of the post-mortem examination. PW 5 has stated that he did not find any bruise or abrasion on the private part and the vaginal smear was sent for examination to Dr. A.K. Jha, who submitted his report stating that no spermatozoa was present in the vaginal smear. PW 5 has stated that he did not find any bruise or abrasion on the private part and the vaginal smear was sent for examination to Dr. A.K. Jha, who submitted his report stating that no spermatozoa was present in the vaginal smear. In his cross-examination PW 5 has admitted that he did not find any bruise or abrasion or any blood mark or fluid coming out from the nose or ear of the deceased, From the evidence of PW 5, it is established beyond doubt that the death of the deceased was due to asphyxia. 10. In this case, the prosecution has not examined the informant for which PW 3 has stated in her cross-examination that her sister Mithlesh is traceless for more than an year and she does not know her whereabouts. PW 7 Santosh Kumar Sah has stated that the informant has been kidnapped by the men of accused Singheshwer Chou-dhary and they are not allowing her to go to Court to depose in this case. In other words, the prosecution has tried to give an explanation for the non-examination of the informant. 11. The prosecution mainly de-pends on the evidence of PW 3 Nandu Sah, PW 4 Rupan Kumari and both of them are child witnesses. Their statement is almost similar and both have unequivocally stated that on the alleged night of the occurrence they were sleeping in the Osara of the house. They saw that these appellants came out from the room of her mother and the appellant Asgar gave a lathi blow to Mithlesh (informant) and threatened her not to disclose the names to anyone, otherwise, she will meet the same fate as that of her mother. They have further stated that when they went inside the room of her mother, they found that she was dead and her dead body was hanging and rope was fixed around her neck. The rope was cut by Mithlesh and their mother was in half naked condition. They have further stated that they saw white spot on the Saya of her mother. Both of them claimed to identify these appellants in the light of electric bulb as also in the light coming from the Petrol Pump situated near their house. It appears that the learned trial Court tested the competency of PW 3 and 4 to depose in the case and after being satisfied recorded their evidence. Both of them claimed to identify these appellants in the light of electric bulb as also in the light coming from the Petrol Pump situated near their house. It appears that the learned trial Court tested the competency of PW 3 and 4 to depose in the case and after being satisfied recorded their evidence. It is true that the evidence of the child witness should be considered with caution as there is chance of tutoring the child witness but it is also well established law that conviction can be based on the testimony of a child witness if the Court finds his evidence trustworthy. In cross-examination, PW 3 has stated that there are two rooms in his house and in front of these two rooms there in Osara. He has stated that there is a courtyard adjacent to the road towards south and the house of accused Singheshwar is situated towards north of the courtyard. He has also stated the boundary of his house. PW 3 has stated that at the relevant time he was sleeping in Osara and he woke up at the instance of his sister Mithlesh Kumari and thereafter he saw that the appellants were coming out of the room. Soon thereafter, he went in the room of his mother and found her in hanging condition. He has further stated that his sister cut the rope with the help of knife, as a result of which, her mother fell down and she was found dead. The police came in the night and recorded the statement of his sister. He has stated both the appellants are known to him from before which appears to be quite natural because both the appellants are his neighbours and he denied that any stranger used to visit his house. He has further stated that many persons had come to his house on the next day. The defence failed to elicited any contradiction in the evidence of PW 3 and PW 4. Their statements appear to be quite natural and are consistent with each other. Inspite of lengthy crossexamination made by the defence, nothing could be elicited in their evidence so as to render their version unworthy of placing credence to, there does not appear any plausible reason that why PW 3 and PW 4, would falsely depose against the appellants with whom they had no animosity or enmity whatsoever. 12. Inspite of lengthy crossexamination made by the defence, nothing could be elicited in their evidence so as to render their version unworthy of placing credence to, there does not appear any plausible reason that why PW 3 and PW 4, would falsely depose against the appellants with whom they had no animosity or enmity whatsoever. 12. PW 6 Ganesh Sah is the brother of the husband of the deceased, who went to the house of the deceased after hearing hulla. He has deposed that the informant stated to him that these appellants committed the murder of her mother after committing rape with her. He also noticed rope around the neck of the deceased PW 6 has stated that the I.O. seized the rope and he signed as a witness on the seizure list, his signature is (Exhibit-1/2. PW 6 appears to be hearsay witness and there is nothing in his cross-examination to disbelieve his evidence. 13. PW 7 Santosh Kumar Sah is another hear-say witness who has deposed that on hearing hulla he was proceeding towards the house of the informant. He saw these appellants fleeing away in the light of the electric bulb. He further stated that when he went inside the room where the deceased was lying, he saw her body in half naked condition and rope around her neck. He further stated that he also noticed some marks on the Saya of the deceased. The Police seized the saya and rope and prepared seizure list on which he put his signature (Exhibit-1/3). PW 7 has identified both the appellants in the dock. His attention was drawn towards his statement on the point of identification and he maintained to say that he had made statement before the I.O. that he identified the appellants while they were fleeing away. The defence failed to draw the attention of the I.O. on this point which shows that there is no contradiction in the statement of PW 7 so far his statement on the point of identification of the appellants is concerned. The defence failed to draw the attention of the I.O. on this point which shows that there is no contradiction in the statement of PW 7 so far his statement on the point of identification of the appellants is concerned. It is true that PW 6 has not made any statement that he identified the appellants while they were running away but such omission on the part of PW 6 can not render the statement made by PW 7 unbelievable and it is possible that PW 6 might not have seen the appellants while they were running away and, so, he did not make such statement in the Court. 14. So far PW 6 Narayan Sah is concerned, he has proved his signature on Exhibit 1. He has been declared hostile as he denied to have made any statement before the police that he had gone to the house of the deceased after hearing hulla and saw her dead body. 15. PW 2 Shanker Sharma is another witness of inquest report who has proved his signature (Exhibit-1/1) on the inquest report and his evidence is similar to that of PW 1. 16. The next important witness is PW 8 Jagdish Jha, who is the I.O. of this case, PW 8 was posted at Singhaul as Officer Incharge and he stated that he recorded the statement of Mithlesh Devi (informant) and he has proved her Fardbeyan (Exhibit-3) which was read over to the informant, who signed on it. He has proved the FIR (Exhibit-4) as also the inquest report (Exhibit-5). The I.O. has stated about the place of occurrence in detail vide para 3 of his evidence and further deposed that he seized the saya containing the mark of semen and five feet long rope besides on old Sikka. He has proved the seizure list (Exhibit-6). In cross-examination, the I.O. has admitted that he did not send the Saya for its examination and the material exhibits seized were not present before him in the Court while he was deposing. He has stated that Singhaul O.P. is situated at a distance of 500 yards from the place of occurrence. He went to the place of occurrence after hearing some rumor. He further admitted that he did not find any mark of blood either on the Saya or on rope which he seized. There is nothing else significant in his cross-examination for comment. He went to the place of occurrence after hearing some rumor. He further admitted that he did not find any mark of blood either on the Saya or on rope which he seized. There is nothing else significant in his cross-examination for comment. 17. Learned counsel appearing for the appellants submitted that the prosecution has failed to prove the charge under Sec. 376/34 of the Indian Penal Code because no witness actually saw the commission of rape by these appellants. Besides that, the doctor, who examined the deceased has not stated that any spermatozoa was found and the Saya containing semen which the I.O. seized was also not produced in the Court. 18. Learned counsel appearing for the State, however, stated that there are strong circumstantial evidence by which the prosecution has been able to prove the charges of rape and murder and those circumstances are that on the alleged night of occurrence itself when the informant, PW 3 and PW 4 woke up after hearing screams of her mother, they found these appellants coming out from the room and fleeing away and both of them were clearly identified by PW 3 and PW 4 in the electric light. So, the presence of these appellants at the place of occurrence can not be doubted. It was contended that as soon as the appellants fled away from the house of the deceased, PW 3 and PW 4 entered into the room of her mother and found her hanging. When the dead body was brought down, both the witnesses found their mother in half naked condition and semen like substance was also noticed on Saya which the deceased was wearing. The I.O., who recorded the statement of the informant after about two and half hours has also testified to this effect and has stated in his evidence that he found semen near the private parts of the deceased as also the mark of semen on her Saya. The evi-dence of PWs 3, 4 and 8 are consistent to each other. The I.O., who recorded the statement of the informant after about two and half hours has also testified to this effect and has stated in his evidence that he found semen near the private parts of the deceased as also the mark of semen on her Saya. The evi-dence of PWs 3, 4 and 8 are consistent to each other. It was, therefore, sub-mitted by the learned counsel appearing for the State that from the above circumstances the only inference which can be drawn is that the deceased was done to death after commission of rape with her, So, even if the Saya was not produced in the Court that will not demolish the ocular version of the witnesses, who have categorically deposed that they saw the deceased in half naked condition with sign of semen on her private parts and Saya. It was next contended that even if the doctor did not find any spermatozoa on the chemical examination of the smear, that will not negative the case of the prosecution, more so, because PW 5 has admitted in his evidence that in ordinary course if spermatozoa comes out or falls outside, it will die imme-diately. The deceased was, admittedly, examined on 22-4-1996 at 10.40 a.m. as per the evidence of PW 5, so, after the lapse of several hours if the doctor did not find any spermatozoa, there is nothing surprising in it. Learned counsel has relied upon the decision in the case of Prithvi Chand V/s. State of Himachal Pradesh, wherein, the Apex Court has held that mere absence of spermatozoa can not cast doubt on the correctness of the prosecution case. I have referred to above that besides PWs. 3, 4 and 7 even the I.O., who reached at the place of occurrence within two and half hours, has also stated that he found sign of semen on private parts of the deceased. The I.O. is most uninterested witness and there is no reason to dis-believe his evidence on this point. I have referred to above that besides PWs. 3, 4 and 7 even the I.O., who reached at the place of occurrence within two and half hours, has also stated that he found sign of semen on private parts of the deceased. The I.O. is most uninterested witness and there is no reason to dis-believe his evidence on this point. It would, thus, appear that there are strong circumstantial evidence on the record to show that these appellants had first committed rape with the deceased, who was living alone in her house with her children as her husband used to live at Calcutta for earning his livelihood and taking advantage of his absence the appellants entered into the room where the dece-ased was sleeping and after committing rape, they murdered her by hanging with the help of rope which the I.O. seized the place of occurrence. 19. Having considered all the facts and circumstances of the case, as discussed above, we are of the definite view that the prosecution proved both the charges viz. 302/34 and 376/34 of the Indian Penal Code against the appellants beyond all reasonable doubt and the learned trial Court rightly convicted them under the aforesaid counts. We, therefore, affirm the order of conviction and sentence recorded by the trial Court. 20. In the result, we do not find any merit in this appeal which stands dismissed.