JUDGMENT : Rajiv Sharma, J. Since common questions of law and facts are involved in these appeals, both these appeals were taken up together for disposal. 2. Cr. Appeal No. 4064 of 2013 has been instituted by the appellant-accused (hereinafter referred to as the accused), against the judgment dated 6.3.2013, rendered by the learned Addl. Sessions Judge, Fast Track Court, Kangra at Dharamshala, Distt. Kangra, H.P. in Sessions Case No. 1-B/VII/12, S.T. No. 32/12, whereby the accused, who was charged with and tried for offences punishable under Section 302 and 376 IPC, has been convicted and sentenced to undergo imprisonment for life and to pay fine of Rs. 10,000/- for the commission of offence punishable under Section 302 IPC and in default of payment of fine, he was further ordered to undergo rigorous imprisonment for one year. The accused was also sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 5,000/- for commission of offence punishable under Section 376 IPC. In default of payment of fine, the accused was further ordered to undergo rigorous imprisonment for six months. Criminal Appeal No. 4046 of 2013 has been preferred by the State for enhancement of the sentence and it was prayed that the accused may be sentenced with death sentence. 3. The case of the prosecution, in a nut shell, is that on 23.8.2011, complainant Kayan Devi was present in her house at Village Ghorepeeth, near the house of the accused. At about 9:45 PM, she heard cries of the prosecutrix (since deceased). The complainant went to her lintel and saw that the door of the room of the prosecutrix was open and light of her courtyard was on. The complainant saw the accused dragging the prosecutrix towards his bedroom and thereafter the accused closed the door. The accused was under the influence of the liquor. The accused was also seen giving beatings to the prosecutrix. The complainant informed Nimma Devi. Thereafter, Nimma Devi, Meera Devi, Adi, Rekha Devi, Chunka, complainant and Kartar went to the house of the accused and asked the accused to open his room but he did not respond. Thereafter, Nimma Devi pushed the door and all these persons went inside the room. They found that the accused was not wearing any clothes and in their presence he put on his pants. Thereafter, Nimma Devi pushed the door and all these persons went inside the room. They found that the accused was not wearing any clothes and in their presence he put on his pants. The prosecutrix was lying on the bed/Takhatposh and she was only wearing shirt at that time. The salwar of the prosecutrix was lying by the side of the bed. The wounds were also noticed on the face and head of the prosecutrix wherefrom the blood was also oozing out. The accused was found carrying danda with him. Desh Raj, another son of the prosecutrix was informed, who came at the spot and took the prosecutrix to the hospital at Baijnath. The prosecutrix succumbed to her injuries. The statement of the complainant was recorded by the police under Section 154 Cr.P.C., on the basis of which, FIR was registered. The inquest papers were prepared. The post mortem examination was got conducted. The accused was also medically examined. The cause of the death was found to be asphyxia. The case property was sent to RFSL, Dharamshala. On completion of the investigation, challan was put up before the Court after completing all the codal formalities. 4. The prosecution, in order to prove its case, has examined as many as eleven witnesses. The accused was also examined under Section 313 Cr.P.C. He has denied the prosecution case and pleaded innocence. The learned trial Court convicted the accused, as noticed hereinabove. 5. Mr. Vinay Thakur and Ms. Neha Scott, Advocates, for the accused have vehemently argued that the prosecution has failed to prove its case against the accused. On the other hand, Mr. Parmod Thakur, learned Addl. Advocate General, for the State has submitted that the case falls within the ambit of rarest of the rare case and the accused should have been awarded death sentence for committing the heinous crime. 6. We have heard learned counsel for both the sides and gone through the judgment and records of the case minutely. 7. Kayan Devi PW-1 testified that the deceased was her ‘Jethani’. Her house was situated adjoining to the house of the deceased. On 23.8.2011, she along with her son Kartar and others was present in the house. At about 9:45 PM, when she was on her bed, she heard the cries of her ‘Jethani’ (Hai Mai Hai Mai). 7. Kayan Devi PW-1 testified that the deceased was her ‘Jethani’. Her house was situated adjoining to the house of the deceased. On 23.8.2011, she along with her son Kartar and others was present in the house. At about 9:45 PM, when she was on her bed, she heard the cries of her ‘Jethani’ (Hai Mai Hai Mai). She came to the lintel of her house and found the room of the deceased opened and light was also on. She saw the accused dragging his mother (deceased) from her room to his own room. There was no light in his room and he bolted his door from inside. She made telephone call to Nimma Devi, sister-in-law of the accused. Thereafter, Nimma Devi, Meera Devi, Rekha Devi and Chunka came on the spot. She along with her son Kartar went to the house of the accused. When they called the accused, he did not respond. Nimma Devi pushed the door of the accused and they all went inside. They saw that accused was naked and he put on his trousers in their presence. The deceased was also found naked on the bed. Only neck of the deceased was covered with shirt. Her salwar was lying on the floor near the bed. The blood was oozing out from her mouth and head. The injuries were also found on her head. She was unconscious. Accused was having danda in his hand. He also threatened them. They picked up the deceased and put on her salwar. Chunka Ram then telephonically called Desh Raj, who came at the spot and took the deceased to the hospital at Baijnath. The police came to the spot and recorded her statement. In her cross-examination, she reiterated that the accused gave beatings to the deceased in the upper floor and thereafter dragged her down. She denied the suggestion that no beatings were given to the deceased in her presence. Dulo Ram was also in his room at that time in the ground floor. She denied the suggestion that while coming down from the upper floor the deceased fell from the stairs and sustained injuries on her head near window adjoining to stairs. 8. Nimma Devi PW-2 has corroborated the statement of Kayan Devi PW-1. According to her, she received telephonic call from Kayan Devi informing her that accused was beating his mother. He has dragged her inside his room. 8. Nimma Devi PW-2 has corroborated the statement of Kayan Devi PW-1. According to her, she received telephonic call from Kayan Devi informing her that accused was beating his mother. He has dragged her inside his room. She along with Meera Devi, Rekha Devi, Chunka Devi, Kayan Devi and Kartar went to the house of Dulo Ram. They noticed the room of accused locked and there was no light in his room. They asked the accused to open the room. She pushed the door and opened the same. They entered the room and noticed that the accused was naked and danda was in his hand. He threatened them and put on his pants in their presence. The deceased was lying naked on the bed. She was only having a shirt around her neck. They noticed injuries on her mouth, nose, head and blood was oozing out from the injuries. She was unconscious. They shifted her to another room and put on her salwar. Chunka Ram informed Desh Raj, who came at about 11:00 PM. She along with Desh Raj took the deceased to Baijnath hospital. The deceased died due to the injuries sustained by her by way of beatings given by the accused. It also appeared that she was raped. Even prior to the occurrence, the accused used to beat his parents under the influence of liquor. She admitted that it was raining at that time. She also admitted that accused was changing clothes when she went inside the room. The clothes of the prosecutrix (deceased) were also wet. She was informed about the incident by Kayan Devi. Dulo Ram was also present in the house when she reached there and made call to him. 9. Chunka Ram PW-3 deposed that on 23.8.2011 at about 9:45 PM, he was sleeping in his house. At that time, Nimma Devi called him and told that accused was beating his mother. He along with Nimma Devi, Meera Devi, Kayan Devi, Aadi, Rekha Devi and Kartar went to the spot. Nimma Devi pushed the door and they went inside the room and noticed that accused was naked with danda in his hands. The prosecutrix (deceased) was lying naked on the bed. She was unconscious. He telephonically informed Desh Raj. The deceased was taken to the hospital. Nimma Devi pushed the door and they went inside the room and noticed that accused was naked with danda in his hands. The prosecutrix (deceased) was lying naked on the bed. She was unconscious. He telephonically informed Desh Raj. The deceased was taken to the hospital. In his cross-examination, he admitted that there were stairs inside the room of the accused to go to Bohari (upper storey). 10. Dulo Ram PW-4 is the husband of the deceased. Mohan Singh was labourer. He was residing with his wife i.e. deceased. The wife of accused had expired about 8-9 years back. The accused was having two sons, who were also residing with deceased. The behavior of the accused was not good with him and his wife. He used to beat them. On 23.8.2011 at about 9:45 PM, he was sleeping in his room. He heard the cries of the deceased. He was also scared and apprehended that he would also be beaten up by the accused, therefore, he went to the backyard of the house. Thereafter, some people gathered in the courtyard of his house and then he also went there. He admitted in his cross-examination that it was raining heavily and there was no electricity in his house. He denied the suggestion that accused called his mother and when she was coming down from the upper floor of the house, she fell down from the stairs. He was sleeping in the last room of the house on the ground floor. 11. Dr. D.D. Rana, PW-5 has medically examined the accused. He issued MLC Ext. PW-5/A. In his opinion, the accused was capable of performing sexual intercourse. 12. Dr. M.K. Rana, PW-6 deposed that on 24.8.2011, the post mortem of the deceased was conducted by Dr. Gurmeet Katoch. In his opinion, the female was having positive signs of intercourse before her death. He issued report/opinion Ext. PW-6/A and PW-6/B on Mark-X-6. He again reiterated that the female was having positive signs of intercourse immediately before death. 13. Desh Raj PW-9 testified that the deceased was his mother and accused Mohan his real brother. At about 10:30 PM, Chunka Ram telephonically informed him that accused had caused beatings to the deceased and she was lying unconscious. He along with Nimma Devi took deceased to the Civil Hospital, Baijnath. 13. Desh Raj PW-9 testified that the deceased was his mother and accused Mohan his real brother. At about 10:30 PM, Chunka Ram telephonically informed him that accused had caused beatings to the deceased and she was lying unconscious. He along with Nimma Devi took deceased to the Civil Hospital, Baijnath. Nimma Devi had informed him that accused had picked up the deceased to his room and that the deceased was not wearing salwar at that time. Accused was also not wearing pants as per the version of Nimma Devi. 14. Dr. Gurmeet Katoch PW-10 has conducted the post mortem examination. According to her, the probable time that elapsed between death and post mortem was 12 to 24 hours. She issued report Ext. PW-10/A. According to her, asphyxia could be caused if person is beaten up and mouth is gagged. The abrasion marks were possible due to blow of Danda Ext. P-19. 15. Insp./SHO Sarwan Singh, PW-11 deposed that on 23.8.2011 at about 11:45 PM, an information was received from SDH Baijnath that a dead body of a lady was brought to the hospital. He along with other police officials proceeded to SDH Baijnath. The statement of complainant under Section 154 Cr.P.C. was recorded vide Ext. PW-1/A. It was sent to the Police Station, on the basis of which, FIR Ext. PW-11/C was registered. The inquest papers were prepared. The case property was taken into possession. According to the post mortem report, the cause of death was asphyxia. 16. Kayan Devi PW-1 has heard the cries of deceased “Hai Mai- Hai Mai”. She saw the accused from the lintel of her house and found that the room of the deceased was open. She saw the accused dragging the deceased from her room to his own room. She made telephonic call to Nimma Devi PW-2. Thereafter, Nimma Devi, Meera Devi, Adi, Rekha Devi, Chunka and Kartar went to the spot. She also reached the spot. Nimma Devi pushed the door of the accused. They all went inside the room. They found deceased lying naked. The accused was also found naked. The salwar of the deceased was lying near the bed. They also noticed injuries on the body of the deceased. Nimma Devi PW-2 also deposed that she along with Meera Devi, Rekha Devi, Chunka Devi, Kayan Devi and Kartar went to the house of Dulo Ram. They found deceased lying naked. The accused was also found naked. The salwar of the deceased was lying near the bed. They also noticed injuries on the body of the deceased. Nimma Devi PW-2 also deposed that she along with Meera Devi, Rekha Devi, Chunka Devi, Kayan Devi and Kartar went to the house of Dulo Ram. They noticed the room of accused locked and there was no light in his room. They asked the accused to open the room but he did not open the same. She pushed the door and opened the room. They entered the room and noticed that the accused was naked and danda was in his hands. He threatened them and put his pants in their presence. The deceased was lying naked on the bed. She was only having a shirt around her neck. They noticed injuries on her mouth, nose, head and blood was oozing out from the injuries. She was unconscious. According to her, it appeared that the deceased was also raped. Chunka Ram PW-3 also deposed that they noticed that accused was naked with danda in his hands. The prosecutrix (deceased) was lying naked on the bed. She was unconscious. Dulo Ram PW-4 is the husband of the deceased. He has categorically deposed that the behaviour of the accused was not good with him and his wife. He used to beat them. On 23.8.2011 at about 9:45 PM, when he was sleeping in his room, he heard the cries of the deceased. 17. Dr. M.K. Rana, PW-6 in his opinion Ext. PW-6/A and Ext. PW-6/B at Mark-X-6 has categorically opined that the female was having positive signs of intercourse immediately before death. Dr. Gurmeet Katoch PW-10 has conducted the post mortem examination on the body of the deceased. According to her, the cause of death was asphyxia. She issued report Ext. PW-10/A. The injuries on the person of the deceased were possible with danda Ext. P-19. 18. We have also gone through Ext. PX, report of the RFSL, Dharamshala. Ethyl alcohol was detected in the contents of parcel/exhibit P/2-1, i.e. urine of the accused. Human semen was detected on Ext. 9b, underwear of accused as per report Ext. PY. The blood was also detected in traces on Ext. 3a, pubic hairs of deceased and Ext. 3b, scalp hairs of the deceased. 19. PX, report of the RFSL, Dharamshala. Ethyl alcohol was detected in the contents of parcel/exhibit P/2-1, i.e. urine of the accused. Human semen was detected on Ext. 9b, underwear of accused as per report Ext. PY. The blood was also detected in traces on Ext. 3a, pubic hairs of deceased and Ext. 3b, scalp hairs of the deceased. 19. The prosecution has proved beyond reasonable doubt that the accused has raped his mother and thereafter killed her by administering beatings to her. It has come on record that there were positive signs of intercourse immediately before death. The death was caused due to asphyxia. Accordingly, there is no reason for us to take a different opinion from the opinion taken by the learned trial Court in its well reasoned judgment dated 6.3.2013. 20. Mr. Parmod Thakur, Addl. Advocate General for the State has vehemently argued that the accused has committed a heinous crime and his sentence should be enhanced to death sentence. We find no merit in his plea. It is not the rarest of the rare case warranting extreme penalty of death sentence. 21. Accordingly, there is no merit in both the appeals, which are dismissed.