Hon’ble Vipin Sinha, J.—Heard Sri G.S. Chaturvedi, learned Senior Advocate, assisted by Sri Alok Ranjan Misra and Sri Kamal Kumar Singh learned counsel for the appellant and Sri Akhilesh Singh, learned Government Advocate assisted by Sri Rajeev Gupta for the State.

2. The present appeal has been filed being aggrieved against the judgement and order dated 22.12.2011 and 10.1.2012 passed in S.T. No. 15 of 2000 by Sri D.C. Singh (H.J.S.), Additional Sessions Judge, Court No. 3, by virtue of which the sole appellant Shakeel Ahmad (accused) has been convicted and sentenced herein as under:

(a) Under Section 302 I.P.C. - death sentence + a fine of Rs. 25,000/- and in case of default in payment of fine, further rigorous imprisonment of five years.

(b) Under Section 376 I.P.C. - life imprisonment + a fine of Rs. 15,000/- and in case of default in payment of fine, further imprisonment of two years.

(c) Under Section 201 I.P.C. - 7 years rigorous imprisonment + a fine of Rs. 2,000/- and in case of default in payment of fine, one month additional imprisonment.

3. In the present case, the sole accused Shakeel Ahmad who was aged about 43 years, at the time of incident, has been accused of brutally raping and causing murder of a child aged about five years namely Km. Afreen daughter of Ishrat Ali.

4. The factual scenario which emerges is to the effect that Ishrat Ali, father of Km. Afreen had lodged an F.I.R. on 26.11.1999 at about 10.35 p.m. at P.S. Kotwali, District Mau. The averments as made in the F.I.R. were to the effect that his daughter namely Km. Areen aged about 5 years was missing since 21.11.1999 at about 3.00 p.m., with regard to which a gumsudgi report was filed/given to the police on 24.11.1999. On 26.11.1999, one Rais Ahmad son of Khalikurrehman had given information to the first informant, Ishrat Ali that he had seen his daughter in the company of one Shakeel Ahmad. Thereafter the said Ishrat Ali confronted Shakeel Ahmad who gave only vague answers and that thereafter Ishrat Ali had gone to the vicinity of the residence of said accused Shakeel Ahmad where he found foul smell coming from the vicinity/backyard of the house of Shakeel Ahmad and thereafter he informed the police and on the arrival of police at about 09.00 p.m., at night, the body of his daughter Km. Afreen was recovered from a room existing in the backyard of the house of Shakeel Ahmad which was being used for storing ‘kabad’ (refuse) and thereafter the F.I.R. was lodged.

5. The postmortem on the body, which was found on 26.11.1999 at about 09.00 p.m. was done on 27.11.1999 at about 03.15 P.M and as per the postmortem report and information of doctor the cause of death was asphyxia due to strangulation and factum of rape was also confirmed by the doctor.

6. It was further mentioned that the death was possible on 21.11.1999, any time after 3 p.m. in the night.

7. A perusal of the postmortem report shows herein as under:

“Body was blotted and smelling foul, eyes and mouth open, tongue protruded and swollen, eye balls bulging from socket, rigor mortis absent, abdomen distended blisters present over pelvic and perineal region, greenish colouration present in both iliac fossa. Neck tied with cloth rope in three layers. Scalp hair easily pulled out and maggots crawling all over the body.”

Ante Mortem Injuries—(I) Ligature mark 26 cm x 2 cm, around the neck interlying the cloth rope tied in three layers, knot present over back of neck, on opening the knot, the size of rope is 170 cm on cut the ligature mark, muscles and soft tissues are echymosed.

(II) Labora majora swollen and reddened and perineal tear present at 6 o’clock position.

8. Cause of death has been shown as asphyxia as a result of ante-mortem strangulation. It is being reiterated that as per the doctor’s opinion, there were signs of rape on the body of the deceased and further the death was possibly caused on 21.11.1999 any time after 03.00 p.m. in the night.

9. In support of its case, the prosecu