JUDGMENT : Rongon Mukhopadhyay, J. Heard Mr. Anuj Kumar as well as Ms. Anshu Dubey, learned counsels for the appellant and Mr. Abhay Kumar Tiwari, learned A.P.P. 2. This criminal appeal is directed against the judgment of conviction and order of sentence dated 01.07.2010 passed by Sri A. K. Choudhary, learned Sessions Judge, Godda in Sessions Case No. 11 of 2010, whereby and whereunder, the appellant has been convicted for the offences punishable u/s 302, 376 and 379 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment (R.I.) for life along with a fine of Rs. 10,000/-for the offence u/s 302 of the I.P.C. and in default of payment of fine to undergo simple imprisonment for six months, rigorous imprisonment for seven years and a fine of Rs. 5,000/-for the offence punishable u/s 376 of the I.P.C. and in default of payment of fine to undergo simple imprisonment for three months and rigorous imprisonment for two years and a fine of Rs. 1,000/-for the offence punishable u/s 379 of the I.P.C. and in default to undergo simple imprisonment for one month. All the sentences were directed to run concurrently. 3. The Fardbeyan of Usha Devi was recorded on 8.10.2009 at village Goria wherein it has been stated that last night she was sleeping in her room with her child and in the verandah her mother-in-law Sakuna Devi was sleeping. Her husband was not present in the house. It is alleged that at about 1 a.m. she went out of the house to answer the call of nature when she saw Subodh Pandit (appellant) whose house is adjacent to her house coming inside the courtyard at which she called her mother-in-law who asked Subodh Pandit the reasons for his coming. It has further been alleged that Subodh started abusing and asked her mother-in-law to keep quiet and when he started entering into her room her mother-in-law tried to stop him by catching hold of his hand at which Subodh started assaulting her mother-in-law with the handle of a hand pump. She out of fear went inside the room and Subodh also followed and told her that he has murdered her mother-in-law. It has been alleged that Subodh by threatening her committed rape upon her for three and half hours. When Subodh left she came out from her room and found her mother-in-law lying dead in the courtyard. She out of fear went inside the room and Subodh also followed and told her that he has murdered her mother-in-law. It has been alleged that Subodh by threatening her committed rape upon her for three and half hours. When Subodh left she came out from her room and found her mother-in-law lying dead in the courtyard. When she started wailing the others arrived and informed her husband through phone. Based on the aforesaid allegations, Boarijore (Lalmatiya) P.S. Case No. 86/2009 was instituted for the offences punishable u/s 302 and 376 of the I.P.C. against Subodh Pandit. On conclusion of investigation charge-sheet was submitted and after cognizance was taken, the case was committed to the Court of Sessions where it was registered as Sessions Case No. 11 of 2010. Charge was framed against the accused for the offences punishable u/s 302, 376 and 379 of the I.P.C. which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as fourteen (14) witnesses in support of its case. P.W. 1 Usha Devi is the informant who has stated that about six months back at about 1 a.m. she was going to answer the call of nature when she found Subodh Pandit in the courtyard. When she raised an alarm, her mother-in-law came and started abusing at which Subodh went near her and told her to remain silent. Subodh thereafter took the handle of a hand pump and assaulted her mother-in-law which resulted in her death. She has stated that Subodh had thereafter snatched her jewellaries and thrice had committed rape upon her. Subodh left her house at 4.30 a.m. She has identified her signature in the Fardbeyan which has been marked as Ext. 1. In cross examination, this witness has deposed that she had a three year old child. Her mother-in-law never used to permit her to go out of the house. On the date of occurrence she had gone to urinate in the courtyard itself. Her mother-in-law was sleeping in the verandah. She has stated that when Subodh started assaulting her mother-in-law she fled away into the room where the cattle are kept. Subodh had also entered into the said room and after she was taken out from the room Subodh started demanding money from her. Her mother-in-law was sleeping in the verandah. She has stated that when Subodh started assaulting her mother-in-law she fled away into the room where the cattle are kept. Subodh had also entered into the said room and after she was taken out from the room Subodh started demanding money from her. She out of fear gave some jewellaries to him. She had taken in her lap her child who was sleeping. She did not raise any alarm because Subodh had threatened her. She thereafter sat on the cot with her child for two hours and Subodh also sat for two hours in the ground. Subodh was telling her not to disclose about the incident to any one and not to lodge a case. All this while Subodh was addressing her as aunt. She has stated that she was subjected to rape by Subodh thrice and the rape was committed on the floor. At the time of rape her son was also sleeping on the floor. She did not suffer any injuries on her person. Her bangles did not break. She had told her son to keep quiet at the time when she was subjected to rape. She did not push Subodh when rape was being committed because Subodh had threatened her. Subodh had committed rape upon her without removing her cloths. After Subodh went away, she found her mother-in-law lying dead. P.W. 2 Mahendra Pandit has stated that about five months back Sakuna Devi was murdered by Subodh Pandit. The wife of Lakshman Pandit was raped by Subodh Pandit from 1 a.m. to 4.30 a.m. He has proved his signature in the inquest report which has been marked as Exhibit 2. He has proved his signature in his 164 Cr.P.C. statement which has been marked as Exhibit 3. In cross examination he has deposed that his evidence is based upon what has been disclosed to him by the wife of Lakshman. He has stated that Subodh Pandit was threatening them of murder from inside the jail. P.W. 3 Lakshman Pandit has deposed that on 08.10.2009 at 1 a.m. Subodh Pandit had committed the murder of his mother with the handle of the hand pump and had thrice committed rape upon his wife and had also snatched his chain as told to him by his wife. P.W. 3 Lakshman Pandit has deposed that on 08.10.2009 at 1 a.m. Subodh Pandit had committed the murder of his mother with the handle of the hand pump and had thrice committed rape upon his wife and had also snatched his chain as told to him by his wife. He has identified his signature in his 164 Cr.P.C. statement which has been marked as Exhibit 4. He has also identified his signature in the Fardbeyan of his wife which has been marked as Exhibit 1/1. In cross examination he has deposed that at the time of the incident he was not at home. Pankaj Pandit had informed him over phone regarding a theft committed in his house. P.W. 4 Nandlal Pandit has stated that it was five months back at 4 a.m. when the wife of Lakshman Pandit was shouting and when he went he found the dead body of the mother of Lakshman Pandit. Subodh had committed rape upon Usha Devi and had stolen away her jewellary. Subodh had assaulted the mother of Lakshman Pandit with the handle of a hand pump. In his cross examination he has deposed that whatever has been stated by him was disclosed by Usha Devi. P.W. 5 Umesh Pandit has stated that about five months back Subodh Pandit had committed the murder of Sakuna Devi and he had also committed rape upon Usha Devi. The murder was committed with the handle of a hand pump. In his cross examination he has stated that he has stated the facts which had been disclosed to him by Usha Devi. P.W. 6 Ganesh Pandit has deposed that about five months back on hearing the wailing of Usha Devi he had found the dead body of Sakuna Devi lying in the court yard of Lakshman Pandit. Usha Devi had disclosed that Subodh Pandit had attempted to commit rape upon her and when Sakuna Devi protested she was assaulted with the handle of a hand pump and thereafter he had committed rape upon Usha Devi. In cross examination he has deposed that the basis of his evidence is the disclosure made by Usha Devi. P.W. 7 Gopal Pandit has stated that on coming to know that Subodh Pandit had committed the murder of Sakuna Devi he had gone to the house of Lakshman Pandit and found her dead in the court yard. In cross examination he has deposed that the basis of his evidence is the disclosure made by Usha Devi. P.W. 7 Gopal Pandit has stated that on coming to know that Subodh Pandit had committed the murder of Sakuna Devi he had gone to the house of Lakshman Pandit and found her dead in the court yard. Usha Devi had disclosed that at 1 a.m. Subodh Pandit had committed rape upon and had also murdered Sakuna Devi with the handle of a hand pump. In cross examination he has deposed that the house of Subodh is adjacent to the house of Lakshman. There are several houses nearby. He has given his evidence based on what Usha Devi had stated before him. P.W. 8 Gita Devi did not support the case of the prosecution and was declared hostile by the prosecution. P.W. 9 Sunil Pandit has stated that about five months back Sakuna Devi was murdered though he does not know who had committed the murder. The wife of Lakshman had disclosed that Subodh Pandit had entered inside the house at 1 a.m., committed the murder of Sakuna Devi and had raped her and fled away at 4.30 a.m. He has proved the inquest report which has been marked as Ext. 2/1. In cross examination he has deposed that the police had recorded his statement. P.W. 10 Sanjeev Jha was posted as a Judicial Magistrate, 1st Class at Godda and on 5.11.2009 he had recorded the 164 Cr.P.C. statements of Nandlal Pandit, Kapil Pandit and Gita Devi. He has proved the said statements which have been marked as Exhibits 5 to 5/2. P.W. 11 Dr. Bandevi Jha had examined Usha Devi on 08.10.2009 and had found the following: On internal examination I found well grown black pubic hair. No injury was present at or around her private parts. No foreign hair – present. No discharge was present. Hymen destroyed due to child birth. Cervix traverses. Vagina loose. Capacious. Uterus of normal size. On microscopical examination of vaginal swab spermatozoa were not found. Epithelial cells normal. She has opined that clinical signs were found indicating possibility of sexual intercourse. She has proved the medical report which has been marked as Exhibit 6. P.W. 12 Kapil Pandit has stated that about five months back in the morning Subodh Pandit was washing blood from his person at Tulsipur pond. Epithelial cells normal. She has opined that clinical signs were found indicating possibility of sexual intercourse. She has proved the medical report which has been marked as Exhibit 6. P.W. 12 Kapil Pandit has stated that about five months back in the morning Subodh Pandit was washing blood from his person at Tulsipur pond. He has stated that Subodh had threatened him. In cross examination he has deposed that at 6 a.m. he had gone to Tulsipur pond for defecation and he had seen washing off the blood from his body. He had seen it from a distance of 100 ft. He had fled away from the pond and had informed the villagers about the presence of Subodh Pandit. P.W. 13 Dr. Narendra Kumar had conducted autopsy on the dead body of Sakuna Devi and had found the following :Ante mortem external injuries (i) A lacerated wound 3”X1 ¼” cranial cavity over vertex of the scalp (ii) Lacerated would 3”X1 ¼” X1 ¼ “ over mid portion of the forehead. (iii) A lacerated wound 2 ½ ”X1 ”X 1/5” over right perital area of the scalp. (iv) Lacerated would 1½ ”X1 X ¼ “ over left perital area of scalp. (v) One lacerated would 1½ ”X ½ X ¼ “ over right wrist. The cause of death was opined to be due to shock and haemorrhage as well as head injury caused by injury No. 1. All the injuries were caused by hard and blunt substance. He has proved the postmortem report which has been marked as Exhibit 7. In cross examination he has deposed that injuries No. 1 and 2 are possible by fall. P.W. 14 Naresh Kumar Sinha had taken over the investigation of Boarijore (Lalmatiya) P.S. Case No. 86/2009 on 08.10.2009 and in course of investigation he had recorded the statements of Lakshman Pandit, Mahendra Pandit, Nandlal Pandit, Gita Devi, Umesh Pandit, Sunil Pandit, Gopal Pandit and Kapil Pandit. He had inspected the place of occurrence which is at village Boria in the house of the prosecutrix which is a tiled house and whose main door is situated on the northern side. About twenty five yards from the house of the prosecutrix is the boundary wall of Subodh Pandit. From the place of occurrence he had seized blood stained earth and pieces of handle of the hand pump. About twenty five yards from the house of the prosecutrix is the boundary wall of Subodh Pandit. From the place of occurrence he had seized blood stained earth and pieces of handle of the hand pump. He had made the seizure in the presence of Dasrath Pandit and Rajendra Pandit. He has proved the seizure list which has been marked as Exhibit 8. The handle which is in four pieces have been marked as material exhibit MO-I. He has identified his handwriting and signature in the requisition by which Usha Devi was sent for medical examination and which has been marked as Exhibit 9. He has identified his handwriting and signature upon the confessional statement of the accused which has been marked as Exhibit 10. He has proved the formal F.I.R. which has been marked as Exhibit 11. On completion of investigation he has submitted charge sheet. In cross examination he has deposed that on the basis of an unconfirmed news he had reached the place of occurrence on 08.10.2009 at 6 a.m. and he had found the prosecutrix as well as the others present. He had recorded the statement of the prosecutrix and thereafter had recorded the statement of the other witnesses. He had not recorded the statements of Rajendra Pandit, Dasrath Pandit, Pankaj Pandit and Dilip. He had not seized the cot where the prosecutrix was raped nor did he seize her Sari, Blouse and petticoat. He had got recorded the statement of the witnesses u/ 164 Cr.P.C. 5. The statement of the accused was recorded u/s 313 Cr.P.C. in which he has clearly denied his participation in the occurrence. 6. Mr. Anuj Kumar, learned counsel appearing for the appellant has submitted that the edifice of the prosecution case is built upon the evidence of P.W. 1. It has been submitted that her evidence suffers from contradictions and infirmities and it would transpire that there was a consensual relationship between P.W. 1 and the appellant. In absence of any corroborative evidence the testimony of P.W. 1 cannot be relied upon in order to fasten the allegation of rape and murder upon the appellant. 7. Mr. Abhay Kumar Tiwari, learned A.P.P. has submitted that P.W. 1 is consistent with respect to the murder of her mother-in-law and the rape committed upon her by the appellant. In absence of any corroborative evidence the testimony of P.W. 1 cannot be relied upon in order to fasten the allegation of rape and murder upon the appellant. 7. Mr. Abhay Kumar Tiwari, learned A.P.P. has submitted that P.W. 1 is consistent with respect to the murder of her mother-in-law and the rape committed upon her by the appellant. He has drawn the attention of the Court to the evidence of P.W. 12 who had seen the appellant washing off blood from his person in the pond early in the morning and the same is an added feature in the case of the prosecution apart from the testimony of P.W. 1. 8. We have considered the rival submissions and have also perused the lower court records. 9. The allegation against the appellant in brief is that he had entered into the premises of the prosecutrix and on being enquired by the mother-in-law of the prosecutrix had committed assault upon her with the handle of a hand pump leading to instant death. Not satisfied with such vile act he turned his eyes on the prosecutrix and committed rape upon her and left the place of occurrence in the early morning. It is to be seen as to whether such allegations have been proved by the prosecution or not. 10. The sole eye witness to the occurrence is the prosecutrix who has been examined as P.W. 1 As per P.W. 1 when in the dead of night she had gone to answer the call of nature she found the appellant standing in the courtyard at which she raised an alarm and her mother-in-law who was sleeping in the verandah woke up and started abusing the appellant which infuriated the appellant and he caused assault upon her resulting in her death. The act of murder was followed by commission of rape upon P.W. 1 which we shall consider later on. 11. Most of the witnesses examined by the prosecution have been consistent with respect to the assault. However, it is an admitted fact that when the appellant had entered into the courtyard of the informant he was unarmed and as per the Fardbeyan when the deceased tried to stop him he had assaulted her with the handle of a hand pump resulting in her death. However, it is an admitted fact that when the appellant had entered into the courtyard of the informant he was unarmed and as per the Fardbeyan when the deceased tried to stop him he had assaulted her with the handle of a hand pump resulting in her death. It has come in the Fardbeyan of the informant that the house of the appellant is adjacent to the house of the informant. It is also an admitted fact that the husband of the informant was not present in the house. 12. The evidence of P.W. 1 is not suggestive of the fact that she was subjected to rape. After the incident of murder she sat on the cot for two hours while the appellant sat in the ground. The appellant it seems had never tried to cause bodily harm to the informant. The appellant is said to have entered into the premises of the informant at 1 a.m. and left at 4.30 a.m. As per P.W. 1 she did not suffer any injuries and her bangles were also not broken. Her evidence reflects that she never resisted the appellant while she was being raped though a feeble attempt has been sought to be projected that due to threats given by the appellant she had remained silent. It also seems to be too much of a co-incidence that when she went to urinate in the dead of night the appellant was also present in the courtyard which seems to be predecided. All these facts point to a different angle than what has been highlighted by the informant. The role of the informant seems to have been camouflaged by her and most of the witnesses have narrated what has been fed to them by the informant. It would thus appear that the appellant and the informant had a consensual relationship which has been sought to be contradicted by the version of the informant as P.W. 1. 13. Coming back to the murder as alleged the same does not appear to be premeditated or preconceived. What appears to be premeditated was the meeting between the informant and the appellant which was marred by the awakening of the mother-in-law of the informant which led to the subsequent incident. The lust and passion of the appellant got better of him leading to the assault committed upon the mother-in-law of the informant. What appears to be premeditated was the meeting between the informant and the appellant which was marred by the awakening of the mother-in-law of the informant which led to the subsequent incident. The lust and passion of the appellant got better of him leading to the assault committed upon the mother-in-law of the informant. The act of the appellant therefore in our considered view would fall u/s 304 Part II I.P.C. 14. We therefore modify the conviction of the appellant to one u/s 304 Part II I.P.C. and consequently the sentence is also modified to rigorous imprisonment for ten years. As the appellant is in custody for more than 13 years and has completed the modified sentence imposed upon him, we direct that the appellant be released forthwith if not wanted in any other case. This appeal is partly allowed. Pending I.A., if any, stands disposed of.