# Mohit (In Jail) v. State of U.P

- **Citation:** (2021) 7 ILRA 87
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-04
- **Case number:** Criminal Appeal No. 7466 of 2017
- **Bench:** Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohit-in-jail-v-state-of-u-p-47150
- **Pages:** 7

## Headnote

matter-Code
of
Criminal
Procedure, 1973-Section 374(2) & Indian
Penal Code, 1860-Section 377 & POCSO
Act,
2012-Section
5/6-challenge
to-
conviction-statement
of
PW-3
is
not
corroborated
with
medical
evidencetestimony of PW-1 and PW-2 is based on
hearsay evidence-victim a four year child
could
not
give
the
answer
during
interrogation except telling his nametestimony of victim PW-3 appears to be
tutored-accused/appellant gets benefit of
doubt.(Para 1 to 19)

The appeal is allowed.

List of Cases cited:

## Text

7 All. Mohit Vs. State of U.P.
87
accused, the burden of proving the same
can not be shifted upon the accused.

26. In view of re-appreciation of the
evidence in this appeal the finding given by
the trial court holding guilty to the
appellant is perverse and bears infirmity.

27. Accordingly, this appeal deserved
to be allowed.

28. The appeal is allowed and the
judgment and order dated 30.3.2019 passed
by IV Additional Sessions Judge(Essential
Commodities Act) Deoria in Sessions Trial
No. 104 of 2015 (State Vs. Narendra
Prasad) arising out of Case Crime No. 1426
of 2014 under sections 326-A,504 and 506
of IPC, P.S. Gauri Bazar, District Deoria is
set-aside. The appellant is in jail. He be
released forthwith, if he is not wanted in
some other case provided the bail bonds are
furnished on his behalf before the trial
court in compliance of section 437-A of
Cr.P.C., to the satisfaction of the court
concerned.

29.

Let
the
copy
of
the
judgment/order be certified to the court
concerned for necessary information and
follow up action.
----------
(2021)07ILR A87
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.02.2021

BEFORE

THE HON'BLE SUBHASH CHAND, J.

Criminal Appeal No. 7466 of 2017

Mohit ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Jagdish Prasad Mishra, Sri Mahendra
Ram Maurya

Counsel for the Respondents:
A.G.A.

A.
Criminal
matter-Code
of
Criminal
Procedure, 1973-Section 374(2) & Indian
Penal Code, 1860-Section 377 & POCSO
Act,
2012-Section
5/6-challenge
to-
conviction-statement
of
PW-3
is
not
corroborated
with
medical
evidencetestimony of PW-1 and PW-2 is based on
hearsay evidence-victim a four year child
could
not
give
the
answer
during
interrogation except telling his nametestimony of victim PW-3 appears to be
tutored-accused/appellant gets benefit of
doubt.(Para 1 to 19)

The appeal is allowed.

List of Cases cited:

1. Subhakar Narayanji Laddha Vs St. of Mah.
(2006) 12 SCC pg.545

2. Ratan Singh Dilkhush Bhai Nayak Vs St. of
Guj.(2004) 1 SCC 64

3. Suresh Chandra Jana Vs St. of W.B. (2017) 6
Supreme at Page 35

(Delivered by Hon'ble Subhash Chand, J.)

1. The instant Criminal Appeal has
been preferred on behalf of the appellantconvict Mohit against the judgment dated
09.11.2017 passed by the Additional
Sessions
Judge,
Court
No.
8,
Muzaffarnagar in Special Sessions Trial
No. 123/9 of 2017 (State Vs. Mohit) arising
out of Case Crime No. 238 of 2017 under
Sections 377 I.P.C. And 5/6 of Protection of
Children from Sexual Offences Act, 2012,
88 INDIAN LAW REPORTS ALLAHABAD SERIES
P.S.
Kakrauli,
District
Muzaffarnagar
whereby the learned trial court while
acquitting the appellant for the offence
under Section 377 of I.P.C, convicted him
for the offence under Section 5/6 POCSO
Act, 2012 and sentenced appellant Mohit
with rigorous imprisonment for 10 years
and a fine of Rs. 50,000/- and also ordered
to undergo further imprisonment of two
years in default of payment of fine.

2. The facts giving rise to this
criminal appeal in brief are that the
informant Dharmendra, son of Asharfi Lal,
resident of village Bhuvapur, P.S. Kakrauli,
District Muzaffarnagar moved a written
information
with
the
police
station
concerned with these allegations that on
20.04.2017 at 7:30 of evening his son Vasu
4 years old was sitting along-with other
male and female kids in the buggi of Jaipal
of his village. Jaipal asked all the children
to get down from the buggi on reaching
village, thereafter, Mohit 19 years of age of
his village made attempt to lure the
children giving gratification of Rs. 10.
Other children went to their house but he
lured to his son Vasu and took him near by
the Government School of the village.
When his son did not return to his house,
all the family members made hectic search
of him and found his child Vasu in
unconscious
condition
near
by
the
Government School and Mohit fled away
from the place of occurrence having seeing
them. The cloth of his son were blood
stained, he has utter belief that Mohit had
committed carnal intercourse against the
order of nature to his child. He also made
the complaint of the same to the family
members of Mohit who also abused and did
marpeet with him.

3. On this written information crime
no. 238 of 2017 was registered under
Section 377 I.P.C 3(a), 4 of POCSO Act,
2012 against Mohit with the Police Station
Kakrauli, District Muzaffarnagar.

4. The I.O. after concluding the
investigation filed charge sheet against the
accused Mohit and the concerned court
took cognizance on the same. The trial
court framed the charge against the accused
Mohit under sections 377 I.P.C. And under
Section 3(a)/4 of POCSO Act, and the
charge was read over and explained to the
accused which was denied by him and
claimed for trial.

5. On behalf of prosecution to prove
the charge against the accused Mohit in
documentary evidence filed the written
information Exhibit Ka-1, medico legal
examination report of victim Exhibit Ka-2,
Supplementary report Exhibit Ka-3, chick
F.I.R paper no. 4a/1 to 4a/3, site plan of the
place of occurrence paper no. 7a and the
charge sheet paper no. 3a/1 to 3a/4.

6. On behalf of prosecution in oral
evidence examined P.W-1 Dharmendra,
P.W-2 Pramita, P.W-3 Vasu, P.W-4 Dr.
Mashkoor.

7. The statement of accused Mohit
under section 313 Cr.P.C., was recorded in
which
he
denied
the
incriminating
circumstances in the evidence against him
and stated that he has been falsely
implicated in this case due to enmity. On
behalf of accused no defence evidence was
adduced.

8. The learned trial court after hearing
the contentions of the learned counsel for
the parties passed judgement on 09.11.2017
acquitting accused Mohit from the offence
under Section 377 I.P.C; but held him
guilty for the offence under Section 5/6 of
7 All. Mohit Vs. State of U.P.
89
POCSO Act, 2012 and sentenced with
rigorous imprisonment for 10 years and
also fine of Rs. 50,000/-, in default of
payment of fine the convict Mohit was also
directed to undergo an additional rigorous
imprisonment for two years.

9. Aggrieved from the impugned
judgment of conviction and sentence, this
criminal appeal has been preferred on
behalf of the appellant-convict Mohit on
the ground that the conviction of the
appellant held by the trial court is against
the weight of the evidence on record. The
learned trial court committed manifest
illegality apparent on the face of record &
convicted the appellant. P.W-2 Pramita in
her statement has narrated that she came to
know in regard of occurrence from the
people of village but none of the person of
the village was examined. Even no person
of the village was named by this witness
from whom she had come to know in
regard to the occurrence. Statement of P.W4 also does not corroborate the prosecution
story. The trial court convicted the
appellant for the offence under Section 5/6
of POCSO Act on the basis of wrong
finding which is not sustainable in the eye
of law.

10. I have heard submissions made by
the learned counsel for the appellant and
also learned A.G.A. for the State, and
perused the materials brought on record.

11. The learned counsel for the
appellant has submitted that although the
trial court has acquitted the appellant from
the offence under Section 377 I.P.C but has
convicted the appellant for the offence
under Section 5/6 of POCSO Act relying
upon the testimony of P.W-3 Vasu. This
witness
was
child
witness,
his
competency as a child witness was not
properly testified by the court below to
declare the witness as competent who was
of the age of four years. Moreover, the
statement of this witness P.W-3, Vasu is not
corroborated by the statement of P.W-1,
Dharmendra informant and P.W-2, Pramita
who have denied in their statement in
regard to commission of alleged crime by
the appellant-accused Mohit. Moreover this
single testimony of P.W-3, Master Vasu is
also not corroborated with the medical
evidence. As such the conviction and
sentence passed by the learned trial court is
illegal based on perverse finding and
accordingly submitted to allow this appeal
and to set aside the conviction and sentence
of the appellant-accused Mohit .

12. Learned A.G.A opposed the
contentions made by the learned counsel
for the appellant and contended that the
single testimony of P.W-3 is sufficient for
the conviction of the appellant-accused.
This
witness
P.W-3,
Vasu
before
examination by the court was also testified
by the court in regard to his competency as
a witness and court after having satisfied
that this witness was competent, examined
this witness. Testimony of this witness is
natural which shall be relied even if the
medical evidence does not support the
ocular evidence. The ocular evidence is to
prevail to medical evidence which is
simply an opinion of expert.

13. The trial court has acquitted the
appellant Mohit from the offence under
Section 377 of I.P.C but convicted the
appellant-accused for the offence under
Section 5/6 of POCSO Act, 2012 while the
trial court had framed charge against the
90 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant-convict Mohit under Section 3a/4
of POCSO Act, 2012. Therefore, it will be
pertinent to mention her the provisions of
Section 3a/4 and 5/6 of POCSO Act, 2012
which reads as under:

Section 3 of POCSO Act, 2012
defines penetrative sexual assault as
under:

A person is said to commit
"penetrative sexual assault" if-

(a) he penetrates his penis, to any
extent, into the vagina, mouth, urethra or
anus of a child or makes the child to do so
with him or any other person; or

(b) he inserts, to any extent, any
object or part of the body, not being the
penis, into the vagina, the urethra or anus
of a child or makes the child to do so with
him or any other person; or

(c) ...............

(d) .................

Section-4
provides
the
punishment
for
penetrative
sexual
assault.--

"Whoever commits penetrative
sexual assault shall be punished with
imprisonment of either description for a
term which shall not be less than seven
years
but
which
may
extend
to
imprisonment for life, and shall also be
liable to fine."

Section-5 defines the aggravated
penetrative sexual assault.

Section-5(m) of POCSO Act,
2012 provides:

"who ever commits penetrative
sexual assault on a child below 12 years" is
said to commit aggravate penetrative sexual
assault.

Section-6 provides punishment
for
aggravated
penetrative
sexual
assault--

"Whoever, commits aggravated
penetrative
sexual
assault,
shall
be
punished with rigorous imprisonment for a
term which shall not be less than ten years
but which may extend to imprisonment for
life and shall also be liable to fine."

14. On behalf of prosecution to prove
the prosecution case have examined P.W-1,
informant Dharmendra. This witness in
his examination-in-chief has stated that on
the fateful day one unknown person had
committed unnatural offence with his son
Master Vasu near by the Government
School of the village. He saw his son in an
unconscious condition and that unknown
person having seen him fled away from the
place
of
occurrence.
He
could
not
recognize that person. After sometime
some people of the village who had
attracted there, told him that person was
Mohit. This witness was declared hostile by
the prosecution and was cross-examined,
this witness denied the statement under
Section
161
Cr.P.C
given
to
the
Investigating Officer.

P.W-2,
Pramita
in
her
examination-in-chief says that on the date,
time and place of occurrence Mohit had
committed unnatural offence with Vasu.
They had seen Vasu in unconscious
condition and Mohit fled away from the
place of occurrence having seen them. In
cross-examination this witness says at the
time of occurrence when she reached at the
school many persons of the village
thronged there, she is telling the name of
Mohit what the people of village had told
her. Vasu also did not tell her in regard to
the occurrence. She neither saw the
occurrence nor saw Mohit running away
from the place of occurrence.

So far as the testimony of P.W-1,
Dharmendra and P.W-2, Pramita is
concerned the testimony of both these
witnesses is based on hearsay evidence.
7 All. Mohit Vs. State of U.P.
91
The source of their knowledge is what
the people of the village had told them.
None of the person of the village was
named
by
any
of
these
witness,
therefore, the testimony of both the
witnesses is not admissible in evidence.
Hon'ble Apex Court held in Subhakar
Narayanji
Laddha
Vs.
State
of
Maharashtra (2006) 12 SCC pg. 545.
Statement of witness before the court
on the basis of what the witness had
known from her husband and had no
direct knowledge of the occurrence, her
statement was also held inadmissible in
evidence; moreso when the husband
was not examined.

15. So far as the testimony of
witness P.W-3, Vasu is concerned;
before examination of this witness, the
court testified the competency of this
witness and in regard to the same asked
name of his father, brother. This child
could not tell the name of the school
in which he was studying and told to
the court that telling lie is bad.
Thereafter, the court declared him
competent and examined him. During
examination this witness said that
Mohit is his uncle and he put off his
underwear, he inserted his finger in
his anus whereby the blood also
oozed.

For testimony of child witness
to be admissible one condition which is
to be fulfilled is that the witness should
be competent. To testify the child as a
competent witness, it is very necessary
to testify the intellectual of the child
whether he understands the questions
put to him or gives rational answers to
those
questions.
The
mental
development of a child witness vary
in different situations depending upon
the conditions he lives in and nurtured.

The testimony of this child
witness
has
to
be
relied
upon
cautiously. The court has to see whether
the
testimony
of
this
child
is
trustworthy and is also corroborated
with some other evidence on record or
not. On behalf of the prosecution the
two witnesses of the fact who is P.W-1,
Dharmendra father of the victim and
P.W-2, Pramita both have denied the
commission of the offence by Mohit. As
such the testimony of this witness is not
corroborated with the statement of P.W1, Dharmendra and P.W-2, Pramita.

P.W-4, Dr. Mashkoor in his
statement says that on 21.04.2017 at
3:05 P.M, he conducted the medical
examination of Vasu aged five years
old. There was no external injury on
any part of the body of this child. The
child only complained pain on his neck.
There was no injury on the neck also.
There was no injury or abrasion on
the anus region. For examination of
sperm two slides were prepared by him
which were sent to district hospital,
Muzaffarnagar. This report is in his
handwriting and signature, Exhibit KA2 as marked there. Supplementary
report was also prepared by him and in
the slide no spermatozoa is seen.
Exhibit
Ka-3
is
marked
on
the
Supplementary report.

This witness could not opine
whether the carnal intercourse against
the order of nature committed or not,
there was no injury in the anus even
there was no blood therein. As such the
statement
of
P.W-3,
Vasu
is
not
corroborated with medical evidence.
92 INDIAN LAW REPORTS ALLAHABAD SERIES

16. It is also pertinent here that the
Investigating Officer neither had recorded
the statement of victim Vasu under
Section 161 Cr.P.C, nor he got recorded
the statement of victim Vasu under
Section 164 Cr.P.C by the Magistrate.
The reason in the case diary is shown by
the Investigating Officer that the victim,
except telling his name, could not give
the
answer
of
any
question
on
interrogation during the investigation.
The name of victim Vasu is also not
figured in the list of witnesses in the
charge-sheet. It is appalling even then the
learned
trial
court
permitted
the
examination of victim Vasu during trial for
the first time who was never interrogated
by Investigating Officer.

17. Therefore, the testimony of victim
P.W-3, Vasu appears to be tutored and does
not inspire confidence. Hon'ble Apex Court
held in Ratan Singh Dilkhush Bhai
Nayak Vs. State of Gujrat, 2004(1) SCC
64. The child witness are amenable to
tutoring. Child witness are liable to be
influenced easily and moulded. Therefore,
court should make careful scrutiny of the
evidence of child witness.

As such the finding recorded by
the trial court holding the appellant guilty
of the offence of aggravated sexual assault
under Section 5/6 of POCSO Act suffers
from infirmity.

18. The reasonable view is to give
benefit of doubt to the convict-appellant.
The Hon'ble Apex Court held in Suresh
Chandra Jana Vs. State of West Bengal,
2017(6) Supreme at page 35. The theory of
adopting view beneficial to accused, if the
two views are possible. If both the views
are reasonable and plausible, the reasonable
view being beneficial to the accused should
be adopted.

19. As such in view of the
reappreciating of the evidence in this
appeal, the conviction and sentence passed
by the trial court of the appellant-convict
for the offence under Section 5/6 of
POCSO Act
deserves
to
set
aside.
Accordingly, this criminal appeal deserves
to be allowed.

This criminal appeal is hereby
allowed. The judgment of conviction and
the sentence passed by the trial court in
Sessions Trial No. 123/9 of 2017 (State Vs.
Mohit) arising out of Case Crime No. 238
of 2017 under Section 5/6 of POCSO Act,
2012, P.S. Kakrauli, District Muzaffarnagar
is set aside. Let the appellant be released
from jail if he is not wanted in some other
case provided the bail bonds are furnished
on his behalf before the trial court in
compliance of Section 437-A of Cr.P.C to
the satisfaction of the court concerned.

20. Let a copy of this judgment/order
be certified to the court concerned for
necessary information and follow up
action.

21. The party shall file computer
generated copy of order downloaded from
the
official
website
of
High
Court
Allahabad, self attested by it alongwith a
self attested identity proof of the said
person(s)
(preferably
Aadhar
Card)
mentioning the mobile number(s) to which
the said Aadhar Card is linked.

22.

The
concerned
Court/Authority/Official shall verify the
authenticity of the computerized copy of
the order from the official website of High
7 All. Lalta Prasad Vs. The Addl. Commissioner (Admin) Devi Patan Mandal Gonda
93
Court Allahabad and shall make a
declaration
of
such
verification
in
writing.
----------
(2021)07ILR A93
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.07.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Misc. Single No. 170 of 2003

Lalta Prasad ...Petitioner
Versus
The Addl. Commissioner (Admin) Devi
Patan Mandal Gonda ...Respondent

Counsel for the Petitioner:
Mohan Singh

Counsel for the Respondents:
C.S.C.

Stamp Act,1899 - Section 47 - Petitioner
purchased land and paid stamp duty as per
circle ratee-petitioner name also recorded in
revenue records-later Ameen approached him
for depositing some amount for deficiency in
stamp duty and penalty-section 47 providescollector/additional District Magistrate does not
have power to impose penalty in such
proceedings.

W.P. allowed. (E-7)

List of Cases cited:

1. Girjesh Kumar Srivastava & 6 anr.Vs St.of U.P.
& ors., reported in 1998 (Supp) RD 523

2. Ram Khelawan @ Bachcha Vs St. of U.P. &
ors.; 2005 (23) LCD 1681

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. Heard Sri Mohan Singh, learned
counsel for the petitioner and Sri V.P. Nag,
learned Standing Counsel for the State
Respondent.

2. The petitioner has challenged the
order dated 19.07.1999 passed by the
Assistant
Collector,
Ist
Class/
SubDivisional
Magistrate,
Kaiserganj,
Baharich
and
also
the
order
dated
26.11.2001 passed by the Additional
Commissioner
(Administration),
Devi
Patan Mandal, Gonda, rejecting his Appeal.

3. It is the case of the petitioner that
he had purchased land of Gata No.522 admeasuring 0.02 dec. situated in village
Chakpihani, Pargana Hisampur, Tehsil
Kaiserganj, District Bahraich, through a
registered sale deed on 01.07.1995 and paid
stamp duty @ Rs.15/- per sq. feet as per the
circle rate of the area concerned. The sale
deed was duly stamped and registered in
the office of the Sub-Registrar Kaiserganj
and the petitioner's name was also recorded
in the revenue records. In the month of
November, 1999, the Ameen of Kaiserganj
Tehsil approached him for depositing an
amount of Rs.24,691/- towards deficiency
in stamp duty and penalty in pursuance of
the order dated 19.07.1999 passed by the
Sub Divisional Magistrate, Kaiserganj
under the Stamp Act.

4. The petitioner inspected the file
and after getting a certified copy of the
order dated 19.07.1999, he preferred a
Revision under Section 56 of the Stamp Act
before the Additional Commissioner on the
ground that the respondent no.2 has passed
the ex parte order and at the time of spot
inspection, the respondent no.2 has not
given any information or notice to the