# Mahendra Pal Singh v. State Of U.P

- **Citation:** (2016) 4 ILRA 1023
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-08
- **Bench:** Bala Krishna Narayana, Naheed Ara Moonis
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-pal-singh-v-state-of-u-p-43622
- **Pages:** 17

## Text

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4 All. Mahendra Pal Singh Vs State Of U.P.

1023
of the District Magistrate, cancelling his lease earlier. It is always open to the State Government to
examine all aspects of the matter and take a decision in that regard. Otherwise, petitioner is at
liberty to file a civil suit for compensation.

27. The writ petition is dismissed subject to the observations made.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.04.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE NAHEED ARA MOONIS, J.

Capital Cases No.- 2966 Of 2015

Mahendra Pal Singh ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for Appellant:
Vinod Singh

Counsel for Respondent:
Govt. Advocate

Proceedings

The appeal arises from conviction in Sessions Trial No. 102 of 2011 for offenses under sections 302/201/376
IPC. The appellant was sentenced to death under section 302 IPC, twenty years rigorous imprisonment under
section 376 IPC, and five years rigorous imprisonment under section 201 IPC, all sentences running
concurrently. The appeal challenged both the conviction and the death sentence.

The High Court heard arguments from both sides, evaluated the circumstantial evidence, post-mortem and
forensic reports, last-seen witnesses, and the statements of the appellant under section 313 Cr.P.C. The
primary question was whether the appellant's involvement in the rape and murder of a minor girl aged about
31⁄2 years was established beyond reasonable doubt.

Procedure

FIR lodged by Hemraj on 31.1.2011 regarding the disappearance of his daughter.
Initial investigation conducted by Lalit Kumar S.I., including recording statements under section 161 Cr.P.C.,
visiting the crime scene, and collecting physical evidence.
Post-mortem performed by Dr. Avinash Kumar confirming ante-mortem injuries, including vaginal laceration
and abrasions.
Arrest of appellant and co-accused Raja Babu on 4.2.2011; recovery of blood-stained earth from appellant's
house.
1024 INDIAN LAW REPORTS ALLAHABAD SERIES
Trial before Additional District & Sessions Judge, Orai; appellant charged under sections 302/376/201 IPC; coaccused tried separately as juvenile.
Examination of prosecution witnesses including last-seen witnesses (P.W.2 & P.W.3), court witnesses (C.W.13), and forensic and medical experts.
Statement of appellant recorded under section 313 Cr.P.C. denying allegations.
Conviction based on circumstantial evidence, last-seen testimony, and recovery of incriminating material.
Appeal filed challenging the evidence, FIR omissions, last-seen theory, forensic reports, and capital
punishment.

Penal Sections Invoked

Section 302 IPC: Murder
Section 376 IPC: Rape
Section 201 IPC: Causing disappearance of evidence of an offense

Case Law Referenced

Sharad Birdhichand Sarda vs. State of Maharashtra AIR 1984 SC 1622 - Circumstantial evidence principles
Bachan Singh vs. State of Punjab AIR 1980 SC 898 - Death penalty in rarest of rare cases
Jitendra Kumar vs. State of Haryana 204 (6) SCC 2014 - Non-mention of accused in FIR
Ramesh vs. State through Inspector of Police 2014 (2) SCC 1729 - Last-seen evidence and FIR omissions
Govinda Reddy vs. State of Mysore AIR 1960 SC 29 - Circumstantial evidence evaluation
Hanumant Govind Nargundkar vs. State of Madhya Pradesh - Circumstantial evidence chain requirement

Headnotes

The appellant was convicted for the rape and murder of a minor girl. The prosecution relied upon
circumstantial evidence, including last-seen testimony, recovery of blood-stained earth from the appellant's
locked house, and medical evidence of injuries. While the appellant argued defects in FIR, credibility of
witnesses, and forensic inconsistencies, the court concluded that circumstantial evidence formed a complete
chain establishing guilt beyond reasonable doubt. However, the appellate court reduced the death sentence to
life imprisonment under section 302 IPC, holding that the case did not meet the "rarest of rare" threshold for
capital punishment.

Facts

Victim, a 31⁄2-year-old girl, went missing on 30.1.2011.
FIR lodged by father Hemraj on 31.1.2011.
Corpse discovered on 31.1.2011 in a jute sack near complainant's house.
Post-mortem revealed multiple ante-mortem injuries and vaginal laceration.
Appellant Mahendra Pal Singh and co-accused Raja Babu arrested on 4.2.2011.
Recovery of blood-stained earth from appellant's locked house.
Appellant's previous criminal charges under section 376/506 IPC considered an aggravating factor.

Contentions

Appellant's Contentions:

Conviction based on circumstantial evidence and last-seen testimony only.
Omission of appellant's name in FIR creates reasonable doubt.
4 All. Mahendra Pal Singh Vs State Of U.P.

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Forensic evidence inconclusive; no spermatozoa found.
Last-seen witnesses related/interested; credibility questionable.
Blood-stained earth recovery inadmissible under section 27 Evidence Act.
Alleged motive of property dispute with complainant family.

State's Contentions:

Last-seen evidence, recovery of incriminating materials, and medical report sufficiently prove guilt.
Delay in naming accused due to family considerations; FIR omission not fatal.
Circumstantial evidence forms complete chain excluding every hypothesis of innocence.
Aggravating circumstances include prior criminal conduct.
Case qualifies as "rarest of rare" for severe sentence justification.

Analysis

Last-Seen Evidence: P.W.2 Devi Dayal, P.W.3 Rajesh Mishra, and C.W.3 Ram Kishun Gupta corroborate
appellant's presence with victim shortly before disappearance. Time gap minimal; circumstantial inference
strong.

Recovery of Incriminating Material: Blood-stained earth from locked house and jute sack near scene
indicates knowledge of crime, admissible under section 27 Evidence Act.

Medical Evidence: Post-mortem confirmed ante-mortem injuries and laceration, supporting prosecution
version of rape and murder; absence of sperm does not negate rape (medical possibility).

FIR Omission: Absence of accused's name in initial FIR does not invalidate prosecution, consistent with Apex
Court precedents (Jitendra Kumar).

Credibility of Witnesses: Interested parties' testimony considered reliable as their statements are
corroborated by independent witness and forensic evidence.

Circumstantial Evidence Chain: Complete and consistent; excludes every hypothesis of innocence;
adheres to principles in Sharad Birdhichand Sarda.

Appellant's Previous Conduct: Prior acquittal under section 376/506 IPC considered aggravating factor,
showing pattern of criminal behavior.

Death Sentence Evaluation: While crime is heinous, appellate court observed case does not meet "rarest
of rare" threshold under Bachan Singh guidelines; life imprisonment deemed proportionate.

Conclusion

The High Court upheld the conviction of Mahendra Pal Singh under sections 302, 376, and 201 IPC, affirming
that the circumstantial evidence, last-seen witnesses, forensic recovery, and medical examination establish
guilt beyond reasonable doubt. However, the death sentence was commuted to life imprisonment under
section 302 IPC, considering proportionality, mitigating factors, and the constitutional principle that capital
punishment is reserved for the rarest of rare cases. Other concurrent sentences were maintained. The appeal
was partly allowed, while the reference pursuant to the trial court's order was dismissed.
1026 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Naheed Ara Moonis. J.)

1. The instant appeal has been preferred on behalf of the appellant against the judgment and
order dated 22.6.2015 and 24.6.2015 passed by the Additional District & Sessions Judge (F.T.C.)
Jalaun at Orai in Sessions Trial No. 102 of 2011 (State versus Mahendra Pal Singh) arising out of
Case Crime No. 45 of2011 undersections 302/201/376 IPC Police Station Dakere District Jalaun,
whereby the appellant has been awarded capital sentence for the offence punishable under section
302 IPC. The appellant has further been convicted and sentenced under section 376 IPC for a term
of twenty years rigorous imprisonment with fine of Rs.5,000/- and under section 201 IPC for a term
of five years rigorous imprisonment with fine of Rs.2000/-. All the sentences were directed to run
concurrently.

2. We have heard learned counsel for the appellant Sri Vinod Singh and learned Government
Advocate Sri Akhilesh Singh assisted by Sri Nipendra Kumar Singh Yadav appearing for the State
and have been taken through the record.

3. The genesis of the prosecution case in a short compendium is that the first information
report was lodged by Hemraj (P.W.1) against unknown person on 31.1.2011 at about 11.30 a.m.
alleging therein that his daughter aged about 3'1/2 years had disappeared at about 6.00 p.m. on
30.1.2011 and an assiduous search was undertaken by the complainant, his relatives and the
villagers but the victim could not be found . On 31.1.2011 at about 10.00 A.M., the corpse of his
daughter was traced in a narrow lane tied within a jute sack near his house. The report was scribed
by Rajesh Kumar Misra(P.W.3).

4. The chick FIR no.10/11 was prepared by constable Tulsi Ram (P.W.6) and necessary entries
were made in the G.D.entering the Case Crime No. 45 of 2011 under section 302/201 IPC at Police
Station Dakore, District Jalaun. After the registration of the first information report, Lalit Kumar
S.I. who was entrusted the investigation swung into action. He noted the relevant materials in the
case diary .On 31.1.2011, he recorded the statement of the complainant and the Head Constable
Tulsiram who had prepared the Chik FIR (Ka.4). He recorded the statement of the scribe of the first
information report Rajesh Kumar Mishra besides many other witnesses. The investigating officer
visited the spot at the instance of the complainant. The corpse of the deceased girl was taken into
custody and inquest of the corpse was conducted on 31.1.2011 at 3.00 p.m. After observing
necessary formalties, the body was sent for post-mortem escorted by Constable Jai Veer Singh and
Head Constable Veerpal. The post mortem of the deceased was conducted by Dr. Avinash Kumar
(P.W.5) on 1.2.2011 at 3.00 p.m. who found the following ante-mortem injuries on the person of
the deceased.

5. Ante-mortem injuries :

1. Abraision sized 6 cm x 2 cm on the outer part of right side neck 5 cm below right ear.

2. Abrasion 5 cm x 2 cm on the left side neck outer part 4 cm below left ear.
4 All. Mahendra Pal Singh Vs State Of U.P.

1027

3. Abraded contusion on the both whole upper & lower lips clotted blood seen over the
wound (lips)

4. Abraided contusion sized 2.0 cm x 2.0 cm on the tip of nose & over both nostrils
clotted blood seen over the wound.

5. Vaginal laceration seen around all around the anterior vaginal wall clotted blood seen
inside the vagina & over the labia majora.

6. According to the doctor, the cause of death was due to shock as a result of ante-mortem
injuries. Rigor mortis was passed of from both upper limbs as well as from both the lower limbs
and the time since death was about two days old, the doctor sealed her wearing apparels and found
blood stains on underwear.The investigating officer made hectic and tireless efforts to trace the
whereabout of the culprit but it yielded no tangible result. On 2.2.2011 the investigating officer
recorded the statement of Devi Dayal , brother of the complainant and Rajesh Kumar Mishra scribe
of the FIR who were the witnesses of the last seen and were produced as prosecution witness P.W.2
and P.W.3. Further statements of the complainant and many other witneses viz. Ram Kishun, Sukru
and Sant Ram were recorded under section 161 Cr.P.C. On 3.2.2011, the statement of Jai Prakash
and Km. Radha both son and daughter of Devi Dayal were recorded under section 161 Cr.P.C.
though not produced and examined by the prosecution during trial. In their statement the complicity
of the appellant Mahendra and one Raja Babu came into light that on 30.1.2011 they heard the
shrieks & shrill of the victim from the house of the appellant. Thereafter the accused persons
namely Mahendra Pal and Raja Babu were nabbed on 4.2.2011 at 3.00 p.m.The statement of the
aforesaid accused persons were recorded who confessed their guilt and blabbed about what really
happened stating that they had committed mistake as they had raped the victim and subsequently
strangulated to death and dumped the body in the narrow lane near his house. Upon their revelation
the accused persons were taken into custody and were taken to the house of the appellant, the place
of occurrence from where on the pointing of the accused appellant blood stained and plain earth
were collected in the presence of the witnesses. The recovery memo Ext.Ka.4 was prepared on
4.2.2011 . Prior to the recovery of blood stain earth, on 31.1.2011, the investigating officer had
collected blood stained jute sack having dead body of the deceased, used match box and packet of
biris, an iron rod near the dilapidated house vide Ext.Ka2 & Ka.4. Finger print was taken from the
iron rod and the same was also described in the case diary in the presence of Devi Dayal and
Rajesh Kumar Mishra (P.W.2 & P.W.3). The report of the finger print expert was received which
was entered into the case diary. While conducting autopsy of the corpse, vaginal slides and vaginal
smear were taken and sent for examination. The papers sent for forensic examination were
produced by the constable Dhani Ram on 15.3.2011 .Further statements of Scientific Assistant Km.
Rubina, Constable 81 Dhani Ram, Smt. Hemwati and Priyanka were recorded. The investigating
officer recorded the statement of Dr. Avinash Kumar (P.W.5) and Dr. Mohd.Mashooq Siddiqui,
P.W.4. Thereafter on 16.3.2011 , the invstigating officer after collecting credible and clinching
evidence showing the complicity of the appellant and Raja Babu submitted charge sheet under
sections 302/201/376 IPC.
1028 INDIAN LAW REPORTS ALLAHABAD SERIES

7. The case was committed to the court of sessions and the Additional District & Sessions
Judge Jalaun framed the charge separately against the appellant under section 376/302/201 IPC.
The trial of co-accused Raja Babu was separated on the plinth of being juvenile. The charge framed
against the appellant was read over and explained to him who abjured from the charge and claimed
to be tried.

8. The prosecution in support of its case, examined Hem Raj the father of the deceased who
had lodged the F.I.R as P.W.1. Devi Dayal, brother of Hem Raj and uncle of the deceased as P.W.2
. Rajesh Kumar Mishra who scribed the FIR was examined as P.W.3. Devi Dayal (P.W.2 ) and
Rajesh Kumar Misra (P.W.3) had seen the appellant taking the victim girl in his lap. The
prosecution has also examined the formal witnesses namely Dr. Mohd. Masooq Siddiqui along with
Dr. Avinash Kumar who conducted the post mortem of the deceased as P.W.4 and P.W.5
respectively. Constable Tulsi Ram who had prepared the chick report was examined as P.W.6. S.I.
Lalit Kumar , the investigating officer of the case was examined as P.W.7 who had investigated the
case and submitted charge sheet against the appellant and the co-accused. The learned trial judge
has examined three court witnesses namely Raj Kumar Bhadoriya, Principal of Primary School,
Goran, District Jalaun as C.W.1, Tulsi Das Raj Poot, Gram Vikas Adhikari as C.W.2 and Ram
Kishan Gupta witness of last seen as C.W.3.

9. The statement of the appellant was recorded under section 313 Cr.P.C. who denied all the
incriminating circumstances put against him and submitted that he had been falsely implicated by
the complainant who is his maternal uncle. He is residing with his grand mother (Nani). He has
been made scape goat by the complainant so as to usurp the property of his grand mother. Further
statement of the appellant under section 313 Cr.P.C. was recorded wherein he abjured with regard
to recovery of blood from his house. He further averred that no such steps were taken in respect of
recovery of blood rather he has been roped in the present case with an oblique design of usurping
the property by getting him executed.

10. On the appraisal and appreciation of evidence on record, the trial court opined that it is a
case of circumstancial evidence which has been fully proved by the prosecution. It was held that
the appellant was last seen along with the victim by Devi Dayal (P.W.2) and Rajesh Kumar Mishra
( P.W.3) taking Polla (namkeen) from the shop of Ram Kishun Gupta (C.W.3) . Ram Kishun
Gupta, C.W.3 who is an independent witness has also stated that Mahendra Pal Singh and Raja
Babu were seen at his shop along with victim at about 4.00 p.m. who purchased Pola for her. Devi
Dayal and Rajesh Misra were already sitting there . It was further held that despite hectic efforts,
the victim could not be searched through out night and on the next day corpse of the victim was
found in a narrow lane of Shyam Sunder and Manik Chandra in a jute sack. The appellant
Mahendra Pal Singh and the co-accused Raja Badu were arrested and had confessed their guilt.
Accused Mahendra Pal Singh and Raja Babu were taken into custody and were carried at the house
of Mahendra Pal wherefrom blood stained earth was recovered from which it is clearly established
that the victim was taken inside the house and was subjected to coetus by both the accused persons
and in order to conceal their evil deed, the victim was eliminated with diabolical ingenuity. The
guilt of the appellant was fully proved to the hilt under sections 302/376/201 IPC. The learned trial
4 All. Mahendra Pal Singh Vs State Of U.P.

1029
judge found that the act of the appellant was very gruesome and monstrous as he had committed
murder of 3'1/2 year old girl in order to satisfy his lust and after keeping the dead body in a jute
sack threw in a narrow lane. The act of the accused appellant who is none else than the cousion of
the victim, comes within the precinct of rarest of rare case for which he deserves to be granted
exemplary punishment of execution. The appellant was saddled to capital punishment and was
directed to be executed till his last breath.

11. It is submitted by the learned counsel for the appellant that the case of appellant rests on
circumstantial evidence . There is not a solitary evidence connecting the appellant with the
commssion of the alleged crime. The conviction is solely based upon last seen evidence of Devi
Dayal (P.W.2) and Rajesh Kumar Mishra (P.W.3) . Devi Dayal (P.W.2) is the brother of the
complainant (Hemraj) and Rajesh Kumar Mishra (P.W.3), the village Pradhan is the scribe of the
FIR. They despite having seen the victim in the company of the accused appellant and Raja Babu
did not divulge to the complainant that they had lastly seen the victim in their company in the
evening of 30.1.2011 in front of the shop of Ram Kishun Gupta C.W.3 ( who has been examined as
Court Witness No.3 by the trial court). In case P.W.2 Devi Dayal and P.W.3 Rajesh Kumar had
seen the victim in the company of the accused persons , this fact must have been narrated in the
first information report when Rajesh Kumar Mishra was the scribe of the FIR. Thus not naming the
accused appellant and Raja Rabu in the first information report is fatal to the prosecution case.
Nothing has been elicited by the witnesses as to why they have not disclosed this material fact to
the complainant when it was within their knowledge and hectic efforts were made to trace the
corpus of the victim till late night when the dead body was recovered on the next day at about
10.00 a.m. prior to lodging of the first information report. It is highly improbable that despite
Munadi (beat of drum) being done with regard to missing of the victim on 30.1.2011 yet the
witnesses who were residing in the close vicinity of the complainant could not muster courage to
come forward to divulge this fact that the victiim was last seen by them in the company of the
accused appellant and one Raja Babu. Further in the statement of the complainant it has surfaced
that one Prem Lata Sharma had divulged about the name of the accused appellant and one Raja
Babu. On 3.2.2011, the statement of son of Devi Dayal P.W.2 namely Pradeep Kumar and daughter
Radha were recorded under section 161 Cr.P.C. who had heard shriek and shrill emanating from
the house of the appellant Mahendra but they were never produced and examined during the course
of trial. When allegedly the name of the appellant and Raja Babu surfaced on 3.2.2011, they were
arrrested and on the pointing of the appellant blood stained earth was allegedly recovered from his
house. The last seen witnesses P.W.2 Devi Dayal and P.W.3 Rajesh Kumar were made witness of
recovery of blood from the stairs of house of the appellant. It is further contended by the learned
counsel for the appellant that the said recovery is inadmissible in evidence and is hit by section 27
of the Evidence Act for the reason that the investigating officer P.W.7 Lalit Kumar Singh had not
deposed any discloser statement made by the appellant. The alleged recovery of jute sack , match
box, biri and iron rod from which finger prints were taken by the scientific expert team. Blood
stained earth and apparels of the deceased were sent for examination to FSL Agra where the report
was prepared on 9.3.2012 but the same did not tally with the prosecution version whether it was
human blood or of any animal which creates doubt about the recovery of blood stained earth from
the house of the appellant. It is highly unthinkable that the appellant would dare to commit such
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
gruesome and dastardly crime who is cousin of the victim that too while residing in the close
vicinity. There is no incriminating material to authenticate that the appellant had committed any
monstrous act of eliminating his own cousin aged about 3'1/2 and after ravishing her chastity and
virginity and putting the corpse in a jute bag for throwing in a narrow lane to cause disappearance
of evidence. When the drum beating was done, the appellant himself accompanied the complainant
and extended full help in searching out the victim. At that stage there was no whisper made by Devi
Dayal (P.W.2) and Rajesh Kumar (P.W.3) with regard to the complicity of the appellant. The
appellant has been inducted in the present case merely on suspicion and speculation so as to grab
the property which belongs to his grand mother and the complainant was highly curious to preclude
the appellant from claiming the property of his grand mother. The son and the daughter of Devi
Dayal (P.W.2) who alleged to have heard the shriek and screaming of the victim from the house of
the appellant were examined by the investigating officer under section 161 Cr.P.C. but the
prosecution failed to examine them during trial to corroborate material about the last seen version
of Devi Dayal (P.W.2) and Rajesh Kumar Mishra (P.W.3) . The learned trial judge has committed
manifest error by not appreciating the evidence on record in correct perspective and proceeded with
the matter on erroneous and wrong assumptions.

12. It is further contended by the learned counsel for the appellant that medical evidence also
does not corroborate the prosecution version as at the time of inquest no injury on the private part
of the deceased was found by Km. Rubina Women Assistant Scientific Expert. Even no blood was
found on the victim's cloth but the doctor who conducted autopsy found blood on her under
garment. The doctor had not found any injury on her private part and hence came to the correct
conclusion with regard to no spermatozoa dead or alive found on the examination of vaginal smear
thus the evidence of the witnesses is also not trustworthy and is not corroborated by the medical
evidence. The accused appellant has been convicted only on the sole testimony of last seen
evidence which has been disclosed by Devi Dayal (P.W.2) and Rajesh Kumar (P.W.3) much after
an unexplained and inordinate delay after lodging of the F.I.R. in consultation with the
complainant. The guilt of the appellant has not been proved beyond reasonable doubt.The appellant
has been falsely implicated in the present case at the cost of usurping the property of his maternal
grand mother (Phularani). The appellant had ensued property dispute with Hemraj (P.W.1) and
Devi Dayal (P.W.2) who are his maternal uncle. Though it has held that both were inimical with
the appellant yet their testimony was believed by the trial court. Besides being father and uncle of
the deceased, they are interested witnesses. The trial court has committed manifest error in relying
upon their deposition who are convicted persons. There is no positive evidence to support the
prosecution version. The Director of finger Print Bureau Lucknow in its report dated 6.8.2011
clearly came out with the definite opinion that the sample of finger prints of the appellant did not
match with the finger prints found on the match stick, iron rod, bidi seized from the spot. The
report of expert is an admissible piece of evidence under section 293 Cr.P.C. Hence , the conviction
and sentence has been awarded to the appellant on misappraisal and misappreciation of evidence on
record when the testimony of the last seen evidence of Ram Kishun Gupta C.W.3 is full of
suspicion and not free from doubt at all. The C.W.3 Ram Kishan Gupta who was living near the
house of P.W.2 Devi Dayal and heard missing of the girl and Munadi was made but did not
disclose to the complainant about seeing her in the company of the appellant. He had not deposed
4 All. Mahendra Pal Singh Vs State Of U.P.

1031
with certainty that he was sitting in his shop on the day of incident. He also did not recognize the
appellant in the court from a distance of three feet due to poor eye sight therefore, it is highly
doubtful that he had seen the victim along with the appellant at his shop. After his statement
recorded as a court witness the appellant was examined under section 313 Cr.P.C. who
categorically denied and stated that under pressure of complainant, the C.W.3 is deposing against
him due to village factionalism . Thus all the witnesses have been set up to create last seen
evidence to somehow implicate the appellant. The learned trial court has disbelieved the evidence
of Devi Dayal ,P.W.2 and Rajesh Kumar P.W.3 as last seen witnesses, yet convicted the appellant
which is unsustainable.

13. The trial court has also erred in holding that the appellant was absconding after committing
the alleged crime from his house. To buttress his submissions learned counsel for the appellants has
relied upon the following decisions of this Court and of the Apex Court.

1. Mousam Singha Roy Vs. State of West Bengal ,2003, Law Suit (SC) 781

2. Matru Vs. State of U.P. 1971 Law Suit (SC) 168.

3. Kanhaiya Lal vs. State of Rajasthan (2014) 4 SCC 715.

4. Rishipal Vs. State of Uttarakhan 2013 Law Suit (SC) 78

5. Raghunath Vs. State of Haryana 2002 Law Suit(SC) 1086.

6. State of Rajasthan Vs. Raja Ram 2003 Law Suit (SC) 746.

7. Hem Raj Vs. State of Haryana 2005 Law Suit (SC) 552.

8. Shyama Charan Sri Ram Saran Vs. State of U.P. AIR 1969 Alld. 61

9. Abdul Khalil & others Vs. Emperor AIR 1930 ALLd. 786

10. Sattatiyha @ Satish Rajanna Vs. State of Maharashtra 2008 (3) SCC 210.

11. Bodh Raj @ Bodha & others Vs.State of Jammu & Kashmir (Criminal Appeal No.
921 of 200 ) decided on 3.9.2002.

12. Kansa Behera Vs. State of Orissa 1987 AIR 1507.

13. State of Gujarat Vs. Kishanbhai & others (2014) 5 SCC 108.

14. Chhotu @ Ajay Vs. Stateof U.P. 2013 (82) ACC 102.
1032 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Rattan Chand Vs. State of Himachal Pradesh Cr.LJ 2002 (1598).

14. In the light of the aforesaid settled legal proposition, the appellant deserves to be acquitted
and the judgment and order passed by the trial court which is not sustainable in the eyes of law
deserves to be set aside.

15. Per contra learned Government Advocate opposed the contention advanced by the learned
counsel for the appellant by submitting that the prosecution case rests upon the last seen evidence
of P.W.2 Devi Dayal and P.W. 3 Rajesh Mishra who had disclosed to the complainant that the
victim was last seen in the company of the appellant and the co-accused Raja Babu.The accused
appellant had betrayed the confidence of victim's parents by taking her to his house so as to ravish
her virginity and chastity and the appellant and co-accused Raja Babu had committed monstrous
act of outraging her modesty and committed murder so as to efface the evidence putting her corpse
in a jute sack in a narrow lane near the house of the complainant. The delay on the part of the
P.W.2 Devi Dayal and P.W.3 Rajesh Mishra in not disclosing the fact that the victim was lastly
seen with the appellant and the co-accused Raja Babu would not overshadow the entire prosecution
version. The post mortem report of the deceased conspicuously points out that the victim was
subjected to coitus and was done to death in a very inhuman and gruesome manner.The blood was
traced inside the house of the appellant which was locked. A number of injuries were found on the
neck of the victim by the doctor who conducted her autopsy. Last seen evidence coupled with
recovery of blood from the appellant's house and on the basis of the statement of the accused
appellant made before the investigating officer which distinctly relates to the factum of recovery is
admissible under section 27 of the Evidence Act. The post mortem report and the doctors statement
that the victim was raped and murdered are all incriminating circumstances which are sufficient to
prove the guilt of the accused appellant.

16. The last seen evidence of the P.W.2 & P.W.3 Devi Dayal and Rajesh Mishra and the court
witnesses Ram Kishun Gupta (C.W.3) stands fully explained by the trial court. Mere nonmentioning the name of the appellant in the F.I.R. does not topple down the entire prosecution
version. Nothing has been elicited by cross examining the witnesses by the defence on this point.
Hence the appellant cannot deriveany benefit. If the complainant wanted to implicate the appellant,
his name would have found place in the F.I.R. itself. No adverse inference can be drawn from the
alleged delay in disclosure of the name of the appellant and the co-accused by the P.W.2 & P.W.3
as it would have brought indelible scandal in the family of the complainant. There is connecting
circumstances to corroborate that the murder of the victim was done to avoid detection of the
misdeed of the appellant. If a rape victim is done to death, the intention of the accused is inferred
from his act and the conduct coupled with the surrounding circumstances. It is also to be taken into
consideration that in cases where the evidence is of a circumstantial nature and the circumstances
from which the conclusion of guilt has been drawn has fully been established and all the facts so
established are consistent with the hypothesis of the guilt of the accused. The learned counsel for
the State invited our attention to the evidence of the prosecution which is based on recording of the
oral evidence supported by medical evidence justifying the conviction and sentence awarded
against the appellant.
4 All. Mahendra Pal Singh Vs State Of U.P.

1033

17. He further submitted that the circumstances are of a conclusive nature and tendency to
exclude every hypothesis except the complicity of the appellant and the co-accused. There is a
complete chain of evidence to leave any reasonable doubt with regard to the innocence of the
accused appellant. There is sufficient incriminating material to show that within all human
probability the act must have been done by the accused appellant and the co-accused.

18. The learned trial judge has considered the mitigating and aggravating circumstances and
has found that the appellant was earlier involved and charged for offences under section 376/506
IPC and section 3 (2) (5) of S.C. & S.T.Act though acquitted as the prosecution witnesses turned
hostile vide Sessions Trial No. 27 of 2001 which shows that there are no chances of mending his
ways hence the appellant was convicted with capital punishment. The judgment and order passed
by the trial court does not suffer from any infirmity and deserves to be sustained.

19. We have considered the submissions advanced by the learned counsel for the appellant and
the learned AGA for the State and have also gone through the entire material on record.

20. After the analysis of the facts and circumstances it emerges out that the entire prosecution
version is based upon the circumstantial evidence. The chain of circumstances are of such a
conclusive nature which unerringly points towards the guilt of the appellant. The appellant has been
awarded death sentence by the learned trial judge on the appreciation of entire evidence holding
him guilty of committing rape on a minor girl aged about 3'1/2 years and throttling her to death .
There is high degree of certainty showing the participation of the appellant in commission of the
crime as the minor girl was done to death after outraging her virginity and chastity.

21. At the cost of repetition, the learned trial judge had marshelled the materials and relied
upon the following incriminating circumstances :

1. The appellant was last seen on 30.1.2011 at about 4.00 p.m. by P.W. 2 and P.W.3 Devi
Dayal and Rajesh Kumar Mishra at the shop of Ram Kishun Gupta (C.W.3). The appellant
purchased Polla from the shop of Ram Kishun Gupta (C.W.3) and thereafter the appellant and Raja
Babu (co-accused) proceeded towards the house of the complainant (Hemraj).

2. The victim was not found alive. Her corpse was recovered kept inside a jute bag on
31.1.2011 at about 10.00 a.m.from a narrow lane existing between the house of Shyam Sunder and
Manik Chand near the house of the complainant.

3. On 4.2.2011, the appellant and the co-accused Raja Babu were arrested . On the
pointing of the appellant and the Raja Babu, blood stained earth was collected from the house of
the appellant which was in the special knowledge of the appellant and the co-accused.

4. The post mortem of the victim was conducted on 1.2.2011 at about 3.00 p.m. where the
doctor found four abrasion, one lacerated wound. The time of death was shown two days old . In
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
the opinion of the doctor, the victim was ravished and thereafter done to death. The victim died as a
result of shock and ante-mortem injuries.

5. The court witness Ram Kishun Gupta examined as C.W.3 was an important witness
from whose shop the appellant purchased Pola for the victim and had seen him lastly. His
testimony has strengthened the evidence of last seen witnesses namely Devi Dayal (P.W.2) and
Rajesh Kumar Misra (P.W.3).

6. The report of Forensic Laboratory (Paper no.93) Ka) which proved presence of human
blood on item no.1-3. The undergarment of the victim and on item no.6-8, earth plain and blood
stained earth,swab, jute bag clinchingly lend support to the prosecution version that the victim was
ravishedby the appellant . Thereafter she was murdered in a very gruesome and grotesque manner
and in order to erase the evil deed dumped her body in a jute sack.

7. The appellant was earlier charged for offence under section 376/506 IPC and had stood
trial being Sessions Trial No. 27 of 2001 though acquittedwas an aggravating circumstances to
punish him with capital punishment.

22. The law relating to the case based on circumstantial evidence is well established which has
been dealt with in great circumspection and sagacity in Sharad Birdhichand Sharda Vs. State of
Maharashtra AIR 1984 S.C.1622 the following observations were made:

(1) "Certainly, it is a primary principle that the accused must be and not merely may be
guilty before a court can convict and the mental distance between 'may be' and 'must be' is long
and divides vague conjectures from sure conclusions."

(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.

23. Keeping in view the aforesaid principles of law relating to circumstantial evidnce, we
intend to consider the main thrust of argument of the learned court for the appellant that the the
absence of name of the accused appellant in the FIR points towards the innocence and entitles him
for acquittal.

24. Initially in the first information report, the name of the accused appellant and the coaccused Raja Badu did not find mention and during the course of investigation it has surfaced that
4 All. Mahendra Pal Singh Vs State Of U.P.

1035
the victim was last seen in the company of the accused appellant and the co-accused Raja Babu
who had committed devillish and monstruous act of ravishing the modesty and virginity of the
victim and committed her murder in a gruesome and diabolic ingenunity so as to blot out the
evidence.The involvement of the accused appellant has been corroborated not only by last seen
evidence of the witnesses but also from the recovery of blood stained earth from his house on the
confessional statement of the appellant in the presence of the witnesses of last seen.

25. The Apex Court in the case of Jitendra Kumar Vs. State of Haryana 204 (6) SCC 2014 has
exhaustively dealt with similar situation regarding non-mentionining of the name of the accused in
the FIR.

"16. As already noticed, the FIR (Ext.P-2) had been registered by ASI Hans Raj, PW 13
on the statement of Ishwar Singh, PW 11. It is correct that the name of accused Jitender, son of
Sajjan Singh, was not mentioned by PW 11 in the FIR.However, the law is well settled that merely
because an accused has not been named in the FIR would not necessarily result in his acquittal. An
accused who has not been named in the FIR, but to whom a definite role has been attributed in the
commission of the crime and when such role is established by cogent and reliable evidence and the
prosecution is also able to prove its case beyond reasonable doubt, such an accused can be
punished in accordance with law, if found guilty. Every omission in the FIR may not be so material
so as to unexceptionally be fatal to the case of the prosecution. Various factors are required to be
examined by the court, including the physical and mental condition of the informant, the normal
behaviour of a man of reasonable prudence and possibility of an attempt on the part of the
informant to falsely implicate an accused. The court has to examine these aspects with caution.
Further, the court is required to examine such challenges in the light of the settled principles while
keeping in mind as to whether the name of the accused was brought to light as an afterthought or
on the very first possible opportunity.

17.