Allahabad High Court
Mahboob Hasan vs State Of U.P. on 22 May, 2025
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:87115-DB
Reserved on 12.05.2025
Delivered on 22.05.2025
Court No. - 45
Case :- CRIMINAL APPEAL No. - 5453 of 2015
Appellant :- Mahboob Hasan
Respondent :- State of U.P.
Counsel for Appellant :- Adarsh Shukla,Ashutosh Tripathi,Chandra Shekhar Mishra,Mohd Akhtar,Prashant Sharma,Sufiya Bano
Counsel for Respondent :- Govt.Advocate
Hon'ble Saumitra Dayal Singh,J.
Hon'ble Sandeep Jain,J.
Per: Hon'ble Sandeep Jain,J.
1. Heard Sri Siddhartha Srivastava, learned Advocate holding brief of Sri Adarsh Shukla, Ms. Archana Singh, learned A.G.A.-I for the State and perused the record.
2. This criminal appeal arises from the judgment and order of conviction dated 12.06.2014 passed by Sri S.M. Haseeb, learned Additional Sessions Judge, Court No.2, Deoria in Sessions Trial No.39 of 2012 (State Vs. Mahboob), arising out of Case Crime No.335 of 2011, under Section 302, 376 & 201 I.P.C., Police Station-Khukhundu, District-Deoria, whereby the accused/appellant-Mahboob has been convicted under Section 302 I.P.C and sentenced to undergo rigorous life imprisonment, alongwith a fine of Rs.10,000/- in default to further undergo additional rigorous imprisonment of one year; under Section 376 I.P.C to undergo ten years rigorous imprisonment alongwith a fine of Rs.5,000/-, in default to further undergo additional rigorous imprisonment of six months and under Section 201 I.P.C to undergo one year rigorous imprisonment alongwith a fine of Rs.2,000/- and in default to further undergo additional rigorous imprisonment of three months. All the sentences have been ordered to run concurrently.
3. The prosecution version unfolded as under: The informant 'P' (P.W.-1 at the trial) gave an application Ex.Ka-1, written by scribe Bharat Lal on 12.06.2011 at Police Station Khukhundu, District Deoria with the averments that on 09.06.2011, he along with his wife and daughter- 'X' aged about four years, had come to Kolhua to attend the marriage of his relative Kanhaiya Prasad. Accused Mahboob had also attended that marriage. On 11.06.2011 at about 2.00 p.m., Mahboob enticed his daughter 'X' and took her with him. The search failed. On 12.06.2011 at about 7.30 a.m., the body of 'X' was found lying in a millet field, towards the west of the village. It appears that Mahboob had killed 'X' by strangulating her and left her dead body in the field and absconded since then.
4. On the basis of the application (Ex.Ka-1), F.I.R. was registered on 12.06.2011 at 9.20 hours being Case Crime No.335 of 2011, against accused Mahboob under Sections 302 & 201 I.P.C. and Section 3(2)(v) S.C./S.T. Act at Police Station-Khukhundu, District-Deoria. The check FIR is Ex.Ka-4 at the trial. The investigation was handed to Circle Officer Ram Shankar Yadav (P.W.-10 at the trial), who prepared the Site Plan of the spot from where 'X' was enticed and taken away (Ex.Ka-13) and the place from where the dead body of 'X' was found (Ex.Ka-14).
5. The autopsy of the deceased 'X' was conducted on 12.06.2011 at 3.30 p.m. by Dr. R.K. Srivastav (P.W.-6 at the trial) along with Dr. Prakash Kumar and gynaecologist Dr. A.S.Verma. In the post-mortem examination, the following external ante-mortem injuries were found on the body of 'X':
"1. Abrasion of size 2 c.m. x ½ c.m. superficial on right side of neck anterolateral by at the level of c3 vertebra (cervical) brownish scab formation present shape elliptical.
2. Abrasion of size 2 c.m. x ½ c.m. superficial on right side of neck at anterolateral aspect at the levet of c4 vertebra brownish scab formation present shape elliptical. ½ c.m. distel proximal abrasion.
3. Abrasion of size 2 c.m. x 0.5 c.m. superficial on left side of neck brownish scab formation present.
4. Multiple abrasion of size 1 c.m. x 0.5 c.m. superficial from lateral border of right orbit to the right side of nose. Brownish scab formation present. These are present of right side of face.
5. Abrasion of size 1 c.m. x ½ c.m. superficial brownish scab formation present."
6. In the opinion of the doctors, 'X' died due to asphyxia as a result of ante-mortem throttling.
7. The dead body of 'X' was also subjected to internal examination by gynaecologist Dr. A.S.Verma, who noted the following internal injuries on the body of 'X':
"Mark of light brownish fluid extending from monspubis to right vaginal region present.
Gapping of introitus present.
Hymen is torned.
Vaginal swab and slides are taken and sent for microscopic examination."
8. The 'Panchayatnama' (Ex.Ka-2) of the body of 'X' was conducted on 12.06.2011 between 9.20-11.15 hours, by S.I. Bechan Prasad Maurya(P.W.-9 at the trial). After conclusion of investigation, charge-sheet (Ex.Ka-7) was submitted, by Ram Avtar Singh Yadav (P.W.-8 at the trial) under Section 302, 376, 201 & 511 I.P.C. against the accused Mahboob, on which cognizance was taken. The trial court had framed charges against the accused/Mahboob under Section 376, 302 & 201 I.P.C. on 08.02.2012, to which the accused pleaded not guilty and claimed trial.
9. The prosecution had examined the following witnesses, who have proved the following documents/objects at the trial:-
Sl. NO.
Witnesses
Documents Proved
1.
Informant 'P' as P.W.-1
Proved the 'tehreer' (Ex.Ka-1) and the 'Panchayatnama' dated 12.06.2011 as Ex.Ka-2
2.
'A', wife of the informant 'P' as P.W.-2
Not proved any document.
3.
Kanhaiya as P.W.-3
Not proved any document.
4.
Laxman as P.W.-4
Not proved any document.
5.
Vinay Kumar as P.W.-5
Not proved any document.
6.
Dr. R.K. Srivastava as P.W.-6
Proved the post-mortem report of 'X', as Ex.Ka-3.
7.
Constable Chhote Lal as P.W.-7
Proved the check FIR, as Ex.Ka-4 and the carbon copy of G.D. entry No.15 dated 12.06.2011 at 9.20 a.m., as Ex.Ka-5.
8.
Ram Avtar Singh Yadav( Second I.O) as P.W.-8.
G.D. entry No.20 at 11.50 hours dated 24.08.2011 as Ex.Ka-6 and the charge sheet against the appellant as Ex.Ka-7.
9.
S.I. Bechan Prasad Maurya as P.W.-9,
Identified signature on the 'Panchayatnama' (Ex.Ka-2) and had also proved the documents prepared for conducting the post-mortem of the deceased as Ex.Ka-8 to Ex.Ka-12.
10.
Ram Shankar Rawat, retired Dy.S.P. as P.W.-10
Proved the Site Plan of the place where 'X' was enticed as Ex.Ka-13 and the Site Plan of the place where the body of 'X' was found as Ex.Ka-14.
10. Before the trial court, the informant 'P' was examined as P.W.-1. He deposed in his examination-in-chief that he had gone (on 09.06.2011), to attend the marriage of Kanhaiya, who is the son of his wife's uncle ('wife ke Fufa ka Ladka'). In that, on 10.06.2011 the accused Mahboob and his father-in-law Ratan also participated. Mahboob belongs to Saharanpur. The marriage was fixed for 10.06.2011, and the marriage party returned on 11.06.2011. Then his daughter 'X' was enticed, and taken away by the accused. They were seen by Kanhaiya and Laxman. They were also seen outside the village at the cross-road(Chauraha) by Harikesh and Vinay Kushwaha. They searched for 'X' till 10.00 p.m. but could not find her. On 12.06.2011 at about 7.30 a.m. the dead body of 'X' was found in a millet (Bajra) field, lying towards the west of the village. It appeared, 'X' had been strangulated to death by the accused Mahboob who was absconding since then, and who could not be traced, yet. Mahboob's second marriage, which was a court marriage was solemnized with Ratan's daughter, Chandrawati. He had given the information to the police and then 'Panchayatnama' of 'X' was conducted in his presence.The informant has proved the application given at the police station as Ex.Ka-1 and the 'Panchayatnama' of 'X' as Ex.Ka-2.
11. Informant 'P' (P.W.-1) deposed in his cross-examination that his father-in-law is Jagdish. His father was Ram Lal @ Lalai. Ratan is the son of Ram Lal @ Lalai and Ratan's daughter is Chandrawati. He could not tell whether Chandrawati had married Mahboob willingly or not. He as well as his father-in-law's brother were not aggrieved with that marriage. After her marriage, Chandrawati had changed her name to Sapna. His own wife was happy with the marriage of Chandrawati and Mahboob. They had no relations with Chandrawati and Mahboob. Prior to this incident, Mahboob came to his father-in-law's house, stayed there for few days and then left. Prior to this incident, had not known Mahboob. Kanhaiya is, the son of his father-in-law's sister. He, his wife 'A' and 'X' had gone to attend the marriage of Kanhaiya fixed for 10.06.2011. They reached Kolhua on 09.06.2011. On 10.06.2011, the marriage party arrived. For the first time, he had met Mahboob in the marriage of Ratan's daughter. He could not tell why Mahboob has killed 'X'. 'X' was taken by Mahboob from a place, situated towards west from Kanhaiya's house, about 1 k.m. away from Kanhaiya's house. He had not seen Mahboob strangulating 'X'. He had seen 'X' lying dead on 12.06.2011, and was later on told by Kanhaiya and Laxman that Mahboob had strangulated 'X'. At that time, the millet crop was about 3-4 feet tall. He had only known Mahboob in the marriage of Ratan's daughter. Mahboob had participated in the marriage of Kanhaiya. Mahboob had not been invited by Kanhaiya and his family members in the marriage but Mahboob accompanied his father-in-law and also had food, there. Mahboob had taken 'X' to the cross-road, then he was seen by Harikesh and Vinay, but these witnesses weren't named in the FIR. The dead body of 'X' was found towards west in the millet field. 'X' was killed by strangulation, but there was no mark of injury on her neck. 'X' was enticed in the night and was taken, at about 2.30-3.00 a.m., by Mahboob. The informant denied a suggestion that since he was unhappy with the marriage of Chandrawati, therefore, he falsely implicated Mahboob.
12. Informant's wife 'A' P.W.-2 deposed in her examination-in-chief, that Kanhaiya Prasad's marriage was fixed for 10.06.2011. To attend that marriage, she reached there on 09.06.2011 along with her husband 'P' and daughter 'X', aged about 4 years. Earlier, her uncle Ratan's daughter Chandrawati had solemnized court marriage with Mahboob. Mahboob and his father-in-law Ratan had also attended the marriage of Kanhaiya. On 11.06.2011, the bride came to her matrimonial home, as such, she and the lady family members went inside the house after welcoming the bride. At that time, 'X' was playing outside the house. Then Mahboob had enticed 'X' and taken her towards a shop. They were thus seen by Kanhaiya and Laxman Prasad and later, outside the village, by Vinay Kumar Kuswaha and Harikesh. She, her husband and other family members searched for 'X' and Mahboob, but neither Mahboob nor 'X' returned. Next day, on 12.06.2011 at about 7.30 a.m., in a millet field, lying on the west side of the village, the body of 'X' was found. She had seen the dead body and it was apparent that she had been strangulated to death by Mahboob and to destroy that evidence, her body had been concealed inside a millet field. Mahboob absconded after the incident. He could not be traced out. Her husband had given information to the police regarding this incident. When Mahboob had taken 'X' with him, at that time, 'X' was wearing a frock and a red underwear. Her underwear was found lying besides her dead body and it appeared that a wrong act had been committed with her.
13. 'A' P.W.-2 in her cross-examination deposed that Chandrawati had married Mahboob willingly. She, her husband and the family members of Kanhaiya had not slept during the night of the incident. She, her husband and her father's brother, all were happy with the marriage of Chandrawati and Mahboob. She could not tell why 'X' was killed by Mahboob. The place from which 'X' was taken by Mahboob was towards the west and situated within one k.m. of Kanhaiya's house. She had not seen Mahboob strangulating 'X'. She became aware on 12th that the dead body of 'X' was lying in the millet field. At that time, the millet crop standing in the field, was a little taller than her. She had not seen Mahboob after the incident. Mahboob had taken 'X' on 11.06.2011 from Kanhaiya's house between 2-3 p.m. She had no enmity with Mahboob. Chandrawati's first marriage was solemnized with Hansnath. Hansnath was annoyed with Mahboob. She denied the suggestion that since her father's brother-Ratan's daughter Chandrawati's marriage had been fraudulently solemnized with Mahboob, she had falsely implicated him.
14. Kanhaiya P.W.-3, deposed in his examination-in-chief that his marriage was fixed for 10.06.2011, in which his uncle (mama) Ratan had participated. His maternal uncle's daughter Priyanka, Mahboob, his brother-in-law 'P', sister 'A', 'X' and others had also participated in the marriage. The marriage party returned on 11.06.2011 and he was going on the brick road to invite the villagers for lunch. He saw Mahboob with 'X' at about 2-3 p.m., who were going towards the northern cross-road. He told them to have lunch, to which Mahboob replied that he would come later. Then he got busy serving lunch to the villagers. Till evening, 'X' and Mahboob did not return. Then he along with other family members and relatives searched but were unable to trace them. On the next day, i.e 12.06.2011 at about 7.30 a.m., the dead body of 'X' was found in the north-western corner of the village in a millet field. He had seen the body of 'X', on which injuries on neck were visible. Besides this, blood had oozed from her mouth and nose. There were injuries, also on her neck and mouth. It appeared that someone had tried to do wrong act with 'X' and then strangulated her to death. Mahboob absconded after the incident. He was of the firm belief that Mahboob had strangulated 'X', in an attempt to commit a wrong act upon her.
15. Kanhaiya P.W.-3 deposed in his cross-examination that Mahboob had participated in his marriage though he had not invited him. Mahboob's wife Chandrawati had not participated in the marriage. On 11.06.2011 between 2:00-3:00 p.m. Mahboob was taking 'X'. He did not know where 'X' was being taken. He had not told anyone, at that time, that Mahboob had taken 'X'. The millet field was situated within one kilometre from his house, towards north-west. He had gone to the place, where the body of 'X' was found. The millet was taller than him. Hansnath was his brother-in-law. He neither had invited Hansnath to his marriage nor Hansnath had participated in it. Mahboob, prior to his marriage, had not come to him, but had gone to his in-laws house in village Bholi Pipra. He had not opposed the marriage of Chandrawati with Mahboob. His in-laws house is about 20 kilometres away from his village. His marriage party had returned at about 10:00-10:15 hours on the next day of the marriage. He had returned with his wife. The place where he had met Mahboob and 'X' is about 10-12 yards away from his house. At that place, he had invited Mahboob for lunch. The millet field (from where the dead body of 'X' was recovered), is at a distance of about one kilometre from his house. He had invited Mahboob for lunch on 11.06.2011. He had not searched for 'X' in the millet field. His statement was recorded by the police on 18.06.2011. He had told the police, while he was going to invite the villagers for lunch, he saw Mahboob and 'X', on way. He had invited Mahboob for lunch. Yet, he had neither seen Mahboob and 'X' enter the millet field nor he had seen Mahboob strangulating 'X'.
16. The prosecution examined Laxman as P.W.-4 during trial. He deposed during his examination-in-chief that Kanhaiya's marriage was fixed for 10.06.2011. In that, Kanhaiya's relatives, informant 'P', 'A' and 'X' had participated. Chandrawati Devi and her husband Mahboob had also participated in the marriage. Kanhaiya's marriage party departed on 10.06.2011 and returned on 11.06.2011 and, thereafter, on 11.06.2011 at 2:00-2:30 pm. Kanhaiya came to invite him for lunch. Then, he and Kanhaiya had seen 'X' with Mahboob going towards the outside of the village. Besides them, other villagers had also seen 'X' with Mahboob. In the evening, 'X' and Mahboob did not return. Then he, the family members of Kanhaiya and other people searched for them but they could not be traced. On 12.06.2011 at 7:30 a.m. in the north-western corner of the village, in a millet field, the dead body of 'X' was found. A crowd had gathered there, he had also gone to see the body. It was apparent that, her vagina had suffered abrasive touch. Her underwear was lying nearby from which, it appeared that 'X' had suffered an attempt to rape and, thereafter, 'X' was strangulated to death. He was of the firm belief that Mahboob had committed this crime, and absconded thereafter and had not returned, since then.
17. Laxman P.W.-4 deposed in his cross-examination that his house is situated about 20 meters away towards the west of Kanhaiya's house. The houses of Munna, Shyam Bihari and Gopal etc. were situated in between. Kanhaiya had come to invite him. Only two minutes before that, he had seen Mahboob, taking 'X' with him. He had not accompanied Kanhaiya. Kanhaiya came to invite him at about 2:00-2:30 hours. He had reached Kanhaiya's house within ten minutes, and at that time about 35 people were present. He had seen 'X' with Mahboob, when Kanhaiya had come to invite him for lunch. He had seen Mahboob with 'X' from a distance of 15-17 meters. Prior to that, he had not seen 'X' with Mahboob. 'X' and Mahboob were talking, when he had seen them. He had not tried to call Mahboob at that time. He remained in Kanhaiya's house for lunch for about 1:30-2:00 hours. During that period Mahboob did not return with 'X'. He returned to his house, after lunch, between 4:00-4:15 p.m. Till then Mahboob had not returned. At 6:00-6:30 p.m., he had gone towards cross-road in search of the accused and 'X'. The cross-road was at a distance of 50-60 meters towards the north from his house. About 6-7 shops were situated at the cross-road. He had not met 'P' and Kanhaiya at the cross-road. He had enquired at a betel shop then was told that a man, had come with a girl and left. He had not asked in which direction they had gone. He had a talk with Mahboob and Kanhaiya, but not in the marriage, they had a talk at the house. Chandrawati had participated in the marriage along with Ratan and her husband Mahboob, but there was no talk with her.
18. P.W.-4 had further deposed in his cross-examination that Ratan had introduced him to Mahboob. The millet field was within a kilometre from his house, towards the north-west. He had not seen Mahboob, taking 'X' inside the millet field. He had neither seen Mahboob commit rape upon 'X' nor had seen him strangulate her. The millet field was visible from his house. He went to the millet field on seeing the crowd. 'X' was wearing a ready-made frock but, her underwear was lying about a yard away from her body. He had seen blood oozing from the nose and mouth of 'X'. It was apparent (to him) that she had been strangulated. The police had met him in the village on 18.06.2011 at Kanhaiya's house between 4-5 and had recorded his statement. At the place where the dead body of 'X' was found in the millet field, the crop had been trampled.
19. The prosecution has examined Vinay Kumar as PW-5 during trial. He deposed in his examination-in-chief that Kanhaiya's marriage was fixed for 10.06.2011, for which his relatives had arrived. In that marriage 'A', informant 'P', 'X' and Mahboob also participated. Kanhaiya's marriage party returned on 11.06.2011. He ran a betel (paan) shop in the village towards the north, on the cross road, and he was present on 11.06.2011 at 2:00 p.m. at his betel shop. There and at that time, Mahboob along with 'X' came to his shop, and purchased a pouch of Himgange oil for Re.1/- and then they had gone towards Dhulti village. On the same day at about 4:00 p.m., Kanhaiya and his relatives searched for Mahboob and 'X' but they could not be traced out. On the next day on 12.06.2011, at about 7:30-8:00 a.m., he came to know that the body of 'X' was lying in a millet field. He had also seen that body and it was apparent (to him) that an attempt to commit rape had been made on her and then she had been strangulated to death. Mahboob had absconded. The police had inquired him about the incident.
20. Vinay Kumar P.W.-5 deposed in his cross-examination that his betel shop was towards the north, within a kilometre from Kanhaiya's house. He was running the betel shop for about five years. He also sold biscuits, Surf, soaps, Himgange oil etc. Kanhaiya had not invited him to the marriage. He had not participated in the marriage party of Kanhaiya. Mahboob had arrived at his shop on 11.06.2011 at about 2:00 p.m. and had only purchased Himgange Oil for Re.1/-. When he came out of his shop to urinate, he saw Mahboob from a distance of about 200 meters. He had seen Mahboob with a girl. He came to know the next day, that Mahboob came to his shop. The place where the dead body was found, was about one kilometre away towards west, from his shop. He had seen the dead body of 'X' in the millet field and, at that time, about 200 people had gathered there. The girl was wearing green, red and yellow coloured frock and her underwear was lying besides her body. No wrapper was found nearby. He had not touched the body, therefore he could not tell, whether oil was present on her private parts or not. He had neither seen the accused taking the girl inside the millet field nor he had seen the accused strangulate her.
21. The prosecution examined Dr. R.K. Srivastav as P.W.-6 during trial. He deposed during his examination-in-chief that on 12.06.2011, he had conducted the post-mortem of 'X' on 3.30 p.m. along with the gynaecologist Dr. A.S. Verma and Dr. Prakash Kumar eye surgeon. In their opinion, 'X' died about, 1-1½ days before the post-mortem. The gynaecologist had also examined the dead body of 'X' and found the hymen was torn. The gynaecologist had also taken vaginal swab and prepared slides for microscopic examination. In the opinion of all the doctors, death of 'X' was caused due to ante-mortem strangulation. This witness proved the post-mortem report of 'X', as Ex.Ka-3. This witness further deposed, it was apparent that 'X' was raped and then strangulated to death. During cross-examination, this witness further deposed that injury Nos. 2, 3, 4 and 5 of 'X' were superficial ante-mortem injuries. The neck bone of 'X' was not found broken.
22. The prosecution examined Constable Chotte Lal as P.W.-7. During trial, he proved the check FIR, as Ex.Ka-4 and the carbon copy of G.D. Entry No.15 time 9.20 a.m., as Ex.Ka-5.
23. The prosecution examined the Investigating Officer Ram Avtar Singh Yadav, as P.W.-8 during trial. He had taken the investigation on 21.08.2011. He had arrested the accused Mahboob Hasan on 24.08.2011 vide C.D. entry No.20 time 11.50 hours, the carbon copy of which has been proved as Ex.Ka-6, by this witness. This witness has also proved the charge-sheet (Ex.Ka-7) against accused-appellant Mahboob Hasan.
24. The prosecution examined S.I. Bechan Prasad Maurya as P.W.-9. He deposed in his examination-in-chief that on 12.06.2011, he had gone to the millet field, where the dead body of 'X' was lying and had prepared the 'Panchayatnama', between 10-11:15 a.m., already proved as Ex.Ka-2. The witness identified his signature on the 'Panchayatnama'. He also proved after preparation of the 'Panchayatnama', he had prepared the prosecution papers to conduct the post-mortem of the dead body of 'X'. It was proved as Ex.Ka-8 to Ex.Ka-12.
25. Lastly, the prosecution examined Ram Shankar Rawat, retired Dy.S.P. as P.W.-10 during trial. He proved the Site Plan of the place, from where 'X' was enticed and taken away by the accused Mahboob as Ex.Ka-13 and has also proved the Site Plan of the place, from where the dead body of 'X' was recovered as Ex.Ka-14. This witness has further deposed that after the incident, the accused had absconded and he had obtained non-bailable warrants and process under Section 82/83 Cr.P.C. against the accused Mahboob Hasan. In the cross-examination, this witness had deposed that the millet field, in which the dead body of 'X' was found, belonged to Lal Babu Mishra and at that time the millet crop was about 6-7 feet tall. Millet was found trampled in an area of 5-6 feet. He had not found the pouch of Himgange oil near the dead body.
26. The accused in his statement under Section 313 Cr.P.C. has denied the prosecution story but has admitted that, Chandrawati is his second wife. She is Ratan's daughter. He had no child from Chandrawati. He further stated that Bhuri is his first wife, who is still alive and residing with him. He has eight children born from Bhuri. His eldest daughter is 21 years old and the youngest is eight years old. The accused admitted, he had participated in the marriage of Kanhaiya in village Kolhua on 11.06.2011. Kanhaiya is his brother-in-law ('sala') and 'P' is the husband of his wife's sister ('sadu'). He has further mentioned that the informant 'P' P.W.-1 was aggrieved with his second marriage. He has admitted that he had solemnized court marriage with Chandrawati, and due to this enmity, he had been falsely implicated by 'P'.
27. Learned counsel for the appellant has submitted that the impugned judgment and order passed by the learned trial court is perverse. It has been further submitted, that the appellant had not been seen with the deceased, enter the millet field and so far as the evidence of last seen is concerned, prosecution evidence is not credible. In the post-mortem examination of the deceased, no evidence of rape has been found. Since the appellant had solemnized court marriage with Chandrawati, as such he has been falsely implicated in this case. Learned counsel has further submitted that, no incriminating object has been found nearby the dead body of the deceased to implicate the appellant. There is no eye witness of the alleged offence of rape and murder. The chain of circumstance is not complete so as to inculpate the appellant in the offence. With these submissions, it has been prayed, that the appeal be allowed.
28. Per contra learned A.G.A. has submitted, that credible last seen evidence is available on record to prove that the deceased was last seen with the appellant. The appellant has himself admitted in his statement under Section 313 Cr.P.C. that he attended the marriage of Kanhaiya. Learned A.G.A. has further submitted, from the post-mortem report of the deceased, it is evident she had been raped and then strangulated to death. It has been further submitted that, there is close proximity of time and place from where the deceased was last seen with the accused, and where her body was found. The appellant has not led any defence evidence to prove, his innocence. In these circumstances, the learned trial court has not committed any illegality in convicting the appellant for the offence of rape, murder of the four year old 'X'. With these submissions, it is prayed, the present appeal be rejected.
29. From the perusal of the first information report, it is evident that on 09.06.2011, the informant 'P' (P.W.-1), his wife 'A' (P.W.-2) and their minor daughter 'X', aged about four years, had arrived in village Kolhua to participate in the marriage of Kanhaiya Prasad (P.W.-3), in which accused Mahboob had also participated. On 11.06.2011 at about 2.00 p.m. 'X' was seen with the appellant going somewhere. Thereafter, on 12.06.2011 in the morning at about 7.30 a.m., the dead body of 'X' was found towards the west of the village, in a millet field. The application on the basis of which FIR has been registered has been duly proved by P.W.-1 as Ex.Ka-1. In this case FIR got registered promptly on 12.06.2011 at about 9.20 a.m. against the accused under Section 302 & 201 I.P.C. and Section 3(2)5 S.C./S.T. Act.
30. From the evidence of informant 'P' (P.W.-1), it is evident that Kanhaiya's marriage was solemnized on 10.06.2011, in which the accused Mahboob and his father-in-law Ratan had also participated. The marriage party had returned on 11.06.2011 and then Kanhaiya P.W.-3,Laxman P.W.-4, Harikesh and Vinay kumar P.W.-5 had seen 'X' in the company of accused Mahboob going somewhere. Though no place has been specified to which they may have been going, yet, it is proven that the two were together and no other person was with them. Also, the place where they were thus seen and the place where the marriage party was staying and the place from where the dead body of 'X' was recovered, all are near each other.
31. From the evidence of 'P' P.W.-1 it is evident that, in his examination-in-chief he has only disclosed that 'X' was enticed and taken away by Mahboob on 11.06.2011. 'P' has not disclosed the time of enticement or the time when 'X' was seen in the company of Mahboob, but, in cross-examination, has disclosed the time to be 2:30-3:00 in the night, which is contrary to the evidence of P.W.-3, P.W.-4 and P.W.-5. P.W.-1 has specifically mentioned in examination-in-chief that they had searched for 'X' on 11.06.2011 till 10.00 p.m. but she could not be traced. It is apparent that if 'X' was seen with accused in the night between 2:30-3:00 then there was no reason to search 'X' prior to it. It is evident that the time told by P.W.-1 in cross-examination, is not corroborated, from the testimony of P.W.-3, P.W.-4 and P.W.-5. Since 'P' is not an eye-witness of enticement and last seen evidence of 'X' with Mahboob, neither any importance can be given to his above statement in cross-examination, nor it is fatal to the prosecution case.
32. From the evidence of 'P' P.W.-1 it is evident that they had searched for 'X' on 11.06.2011 till 10.00 p.m. but she could not be traced and on 12.06.2011 at about 7.30 a.m., the dead body of 'X' was found in a millet field and it was apparent that, she had been strangulated to death. Informant has further deposed that accused Mahboob had absconded thereafter. Informant P.W.-1 has also proved the 'Panchayatnama' of 'X' as Ex.Ka-2. P.W.-1 has denied in his cross-examination that due to Chandrawati's marriage with accused Mahboob, he had falsely implicated him. However, P.W.-1 has further admitted that he had not seen the accused Mahboob killing 'X'. It is also evident that P.W.-1 has not seen the accused enticing and taking away 'X' with him.
33. From the evidence of 'A' P.W.-2, it is evident that she had attended the marriage of Kanhaiya on 10.06.2011 with her husband 'P' and minor daughter 'X', in which accused Mahboob was also present along with Mahboob's father-in-law Ratan. This witness has mentioned that the marriage party had returned on 11.06.2011 to Kanhaiya's house and she and other female relatives were busy with the bride and 'X' was playing outside. Then, Mahboob had enticed 'X' and taken her. They were seen together by Kanhaiya P.W.-3, Laxman Prasad P.W.-4 and outside the village by Vinay Kumar P.W.-5 and Harikesh. This witness has deposed that she, her husband 'P' and other persons had searched for 'X' and Mahboob, but neither accused Mahboob nor 'X' returned. On the next day i.e. 12.06.2011 at about 7.30 a.m. in a millet field situated towards west of the village the dead body of 'X' was found. She has specifically mentioned that after the incident, accused Mahboob absconded. She has further deposed that when 'X' was enticed and taken away by accused, she was wearing a frock and a red colour underwear that was found lying besides her body. During her cross-examination, this witness has deposed that the millet crop in the field, where the dead body of 'X' was found, was taller than her. This witness has also mentioned that she had no enmity with the accused Mahboob.
34. From the evidence of Kanhaiya, P.W.-3 and Laxman P.W.-4, it is evident, 'P', 'A' and 'X' had participated in the marriage of Kanhaiya on 10.06.2011, along with accused Mahboob. After the marriage was solemnized, the marriage party had returned, on 11.06.2011 to Kanhaiya's house. Around the time of the occurrence, Kanhaiya P.W.-3 had gone to invite the villagers and Laxman P.W.-4 for lunch. They had seen 'X' with accused Mahboob on 11.06.2011 between 2.00-3.00 p.m., when the two were going in the northern direction, towards the cross-road. P.W.-3 had also invited Mahboob for lunch, but Mahboob said, he would eat later. Then, P.W.-3 had become busy serving lunch to the villagers. Till evening, 'X' and accused Mahboob did not return and as such, they were searched by the relatives and other persons but could not be traced out. On the next day i.e. 12.06.2011 at about 7.30 a.m. the dead body of 'X' was found in a millet field. These witnesses had also deposed that the millet field is within a distance of one kilometre from Kanhaiya's house, and the millet crop standing in that field, was taller than P.W.-3. P.W.-3 has specifically mentioned in his cross-examination that, the place where he had met Mahboob and 'X' was about 10-12 yards away from his house and at that place, he had invited Mahboob for lunch, which is about one kilometre from the millet field. P.W.-3 has admitted that he had neither seen Mahboob and 'X' entering the millet field nor had seen strangulating her. Both these witnesses have denied that they had falsely implicated accused due to his marriage with Chandrawati. Laxman P.W.-4 has mentioned in his cross-examination that he had only seen the accused two minutes before, Kanhaiya had invited him for lunch in between 2.00-3.00 p.m. and he had reached Kanhaiya's house within ten minutes and at that time about 35 people were present in Kanhaiya's house. This witness had seen Mahboob and 'X' from a distance of about 15-17 meters. P.W.-3 and P.W.-4 had searched for the accused Mahboob and 'X' on 11.06.2011, along with others, but they could not be traced.
35. From the evidence of Vinay Kumar P.W.-5, it is evident that accused (along with 'X') went to his betel(paan)shop,which is situated in the northern direction of the village on the cross-road, on 11.06.2011 at about 2.00 p.m. to purchase a pouch of Himgange oil for Re.1/- and, thereafter, they had gone towards Dhulti village. At about 4.00 p.m, on the same day, P.W.-3 and his relatives starting searching, for Mahboob and 'X', but they could not trace them, and on the next day at about 7.30-8.00 a.m, the dead body of 'X' was found in the millet field. This witness had not attended Kanhaiya's marriage, because he was not invited. This witness further deposed that the millet field, in which the dead body of 'X' was found is situated at a distance of about one kilometre from his shop. This witness also acknowledged that he had neither seen the accused taking 'X' inside the millet field nor he had seen him strangulating 'X'.
36. From the evidence of Dr. R.K. Srivastav P.W.-6, it is evident that he had conducted the post-mortem examination of 'X' on 12.06.2011 at about 3.00 p.m. along with gynaecologist Dr. A.S. Verma and eye surgeon Dr. Prakash Kumar. This witness proved the post-mortem report of 'X' as Ex.Ka-3. In the post-mortem examination of 'X', multiple injuries have been found on her neck, nose, face and she had bled from her mouth and nose. Her tongue was partially protruding and on this basis, the three doctors conducting the post-mortem concluded that 'X' died due to asphyxia as a result of ante-mortem throttling, about 1 to 1½ days prior to the time of post-mortem examination. Since the post-mortem examination of 'X' was conducted on 12.06.2011 at about 3:30 p.m., it can be inferred that 'X' could have died on 11.06.2011 between 3:30 a.m-3:30 p.m.
37. Dr. R.K. Srivastav P.W.-6 has also deposed that the private-parts of the deceased 'X' were also examined by the gynaecologist, Dr. A.S. Verma during post-mortem examination, hymen of 'X' was found torn. This witness has specifically mentioned that 'X' was first raped and then she was throttled to death.
38. On the basis of the above evidence, the prosecution has been able to prove the following circumstances:-
"1. Kanhaiya's marriage was solemnized on 10.06.2011, in which 'X' along with her parents had participated.
2. In Kanhaiya's marriage accused Mahboob had also participated.
3. On 11.06.2011 between 2.00-3.00 p.m., Mahboob had enticed 'X' and taken her from outside Kanhaiya's house, and they were seen together by P.W.-3 Kanhaiya and P.W.-4 Laxman.
4. Kanhaiya P.W.-3 had also invited Mahboob, when he was with 'X', for lunch on 11.06.2011 between 2.00-3.00 p.m, but Mahboob had said that he will come later, but Mahboob and 'X' had never returned.
5. Mahboob and 'X' were also seen together outside the village by Vinay Kumar P.W.5 at his betel(paan) shop, on 11.06.2011 at about 2.00 p.m., where Mahboob had gone to purchase a pouch of Himgange oil for Re.1/-.
6. From the evidence of P.W.-1, P.W.-2, P.W.-3, P.W.-4 and P.W.-5, it is proved, that the millet field, in which the dead body of 'X' was found, is at a distance of only about one kilometre from Kanhaiya's house, from where 'X' was enticed and taken by Mahboob. There is a close proximity between the place her dead body was found and where she was last seen alive.
7. From the evidence of doctor P.W.-6 it is proved that 'X' was raped and then throttled to death.
8. From the evidence of doctor P.W.-6 it is proved that 'X' could have died on 11.06.2011 between 3:30 a.m-3:30 p.m. There is a close proximity of time between her probable time of death and the time, she was last seen alive.
9. From the evidence of P.W.-1, P.W.-2, P.W.-3, P.W.-4 and P.W.-5 it is proved that Mahboob had tried to destroy the evidence of crime by concealing the dead body of 'X' in a millet field.
10. The accused Mahboob had absconded after the incident, and was neither seen at Kanhaiya's house nor in the village, after the occurrence.
11. From the evidence of P.W.-8 it is proved that accused Mahboob was arrested on 24.08.2011. "
39. The Hon'ble Apex Court in the case of State of U.P. Vs. Satish (2005) 3 SCC 114 has held that principle of last seen comes into play, where the time gap between the point of time when the accused and the deceased were last seen alive and when the fact that deceased is found dead, is so small that possibility of any person other than the accused being the author of the crime becomes impossible.
40. The Hon'ble Apex Court in the case of Abdul Nassar Vs. State of Kerala and Another 2025 SCC OnLine SC 111 has held that the following conditions must be fulfilled before a case against an accused can be said to be fully established:-
"(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
41. In this case, the prosecution has succeeded in proving that 'X' was last seen alive with Mahboob on 11.06.2011 between 2:00-3:00 p.m. and thereafter the dead body of 'X' was found in the millet field on 12.06.2011 between 7:30-8:00 a.m. According to the post-mortem report of 'X', she could have died on 11.06.2011 between 3:30 a.m-3:30 p.m. It is also proved that the distance between the place, from where 'X' was enticed by the accused Mahboob and the place, where her dead body was found is about one kilometre. It is also proved that 'X' was first raped and then throttled to death. There is a close proximity, between the time and place when/where 'X' was last seen alive and when/where she was found dead. The accused Mahboob has admitted in his statement under Section 313 Cr.P.C., that he had attended the marriage of Kanhaiya and was present in the marriage. It has also been proved that on 11.06.2011 in the evening itself accused and 'X' were searched by Kanhaiya, 'P' and 'A' and their relatives but they could not be traced. It is also on record that Mahboob was not seen in the village after 11.06.2011 at about 2.00 p.m. by anyone, and he absconded. It is also proved that the millet field where the body of 'X' was found, had millet crop of about 5-6 feet. This fact proves that the appellant had tried to conceal the evidence by hiding the dead body of 'X' in a millet field. In the light of the above evidence, it can certainly be inferred that Mahboob had enticed 'X' and had raped her and then throttled her to death and had tried to conceal the evidence of the crime committed by him.
42. In defence, no plea of alibi had been setup by the appellant. The appellant has only mentioned in his statement under Section 313 Cr.P.C., since he had solemnized second marriage with Chandrawati, as such, he had been falsely implicated by 'P', which is not substantiated by any evidence on record. P.W.-1, P.W.-2 and P.W.-3 have denied that they have falsely implicated the appellant.
43. We are of the considered opinion that the chain of circumstances established against accused is of conclusive nature. 'X' was last seen alive in the company of the accused on 11.06.2011 between 2:00-3:00 p.m and according to the doctor P.W.-6, 'X' could have died on 11.06.2011 at about 3:30 p.m. The dead body of 'X' has been found concealed in a millet field, which is at a distance of about 1 kilometer from the place, she was enticed and taken away by Mahboob. The time gap and the distance between the above circumstances, is so short, that only one conclusion can be drawn, that only the accused has committed this crime. Other than the accused, none had the opportunity to commit this crime. The prosecution has been able to prove it's case beyond reasonable doubt. In view of this, we are of the considered opinion that the trial court has rightly believed the above evidence and, has rightly convicted the accused-appellant for the offence under Section 376, 302 and 201 I.P.C. The conclusion reached by the trial court cannot be termed as perverse. We find no legitimate reason to interfere with the order of conviction recorded by the learned trial court. In view of the above, the conviction of appellant under Sections 302, 376 and 201 I.P.C is affirmed.
44. At present, the appellant is about 55 years old, who has been sentenced by the trial court to undergo rigorous imprisonment for offence under Section 302, 376 and 201 I.P.C. Till date, the appellant has undergone about 13 years, 8 months in jail(actual). The appellant has already undergone the sentence imposed for offence under Section 376 and 201 I.P.C. Keeping in view the present age of the appellant, we are of the view that if the nature of the remaining sentence imposed on the appellant under Section 302 I.P.C. is altered from rigorous imprisonment to simple imprisonment, then it will meet the ends of justice.
45. Accordingly, the criminal appeal is partly allowed.
46. The conviction of the accused-appellant Mahboob Hasan under Sections 302, 376 and 201 I.P.C. and the sentence imposed by the trial court is affirmed, but the nature of punishment for offence under Section 302 I.P.C for the remaining period, is altered from rigorous imprisonment to simple imprisonment.
47. Let the trial court record along a copy of this order be transmitted to the trial court concerned through Registrar (Compliance) forthwith. This order be also sent by the Registrar (Compliance) to the concerned jail authorities for necessary compliance.
48. The trial court is directed to submit the compliance report in this regard to this Court.
Order Date:- 22.5.2025
Anurag/-
(Sandeep Jain, J.)
I agree.
(S.D. Singh, J.)
