# Monu Thakur v. State of U.P

- **Citation:** (2022) 3 ILRA 122
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-04
- **Case number:** Capital Cases No. 13 of 2021
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/monu-thakur-v-state-of-u-p-48168
- **Pages:** 24

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code,1860-Section 302, 376, 326-A,
354, 354-A, 452 - Protection from Children
from Sexual Offences Act,2012 - Sections
7/8, 5/6-challenge to-conviction/death
penalty-PW-1's daughter got burnt-she
died of septicaemia as a result of burn
injuries sustained by her-injury report
discloses victim had suffered thermal
burns to the extent of 80 to 85 percentprosecution failed to prove that the
accused entered the house of the victim,
misbehaved
with
her,
or
sexually
assaulted her in any manner-in absence of
admissible
evidence
to
prove
the
foundational
facts
of
commission
of
penetrative
sexual
assault,
the
presumptive provisions of Section 29 of
the POCSO Act would not get attractedthe dying declaration of the victim has not
been exhibited nor it has been put to the
accused while recording his statement u/s
3 All. Monu Thakur Vs. State of U.P.
123
313
Cr.P.C.-neither
the
recording
Magistrate not the doctor has been
examined-A retrial may be ordered when
the
original
trial
has
not
been
satisfactory for particular reasons-But
retrial cannot be ordered on the ground
that the prosecution did not produce the
proper
evidence-witnesses
had
exonerated the accused by giving their
affidavits saying it was a case of
accidental burns-non-exihibited dying
declaration makes allegation against
three persons whreas two of them are
not
named
and
one
is
mentioned
without parentage and proper addressdoctors did not speak about a word
about recording of dying declaration-in
these circumstances, if the prosecution
chose
not
to
prove
the
dying
declaration, it cannot be said the the
prosecution was prevented from leading
evidence in that regard-no forensic
evidence such as DNA profiling to
connect the appellant to the crime-no
application moved by any party to
summon the recording magistrate or the
doctor
to
prove
the
alleged
dying
declaration-PW-1,
2,
3
have
not
supported the prosecution case- no need
to summon the magistrate, when the
prosecution as well as victim's family
both are not relying on it-in the absence
of proof of foundational facts, the
benefit of presumption would not be
available to the prosecution u/s 29 of
the Act.(Para 1 to 45)

The appeal is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,724 of 84,105. This is a partial read: ask again with offset=39724 for what follows._

122 INDIAN LAW REPORTS ALLAHABAD SERIES
section 53-A CrPC. It is difficult to accept
that if the accused appellant had committed
rape and had left his trouser on the spot,
there would be no material available for
DNA profiling. This raises a question
regarding
the
bona
fides
of
the
investigation. More so, when the initial
report was with regard to the involvement
of two persons. Further, rape of an aged
woman, who is a stranger to the accused,
baffles us. It was therefore a case where the
investigating agency ought to have been
diligent and circumspect because of the
fundamental
principle
of
criminal
jurisprudence that fouler the crime stricter
the proof. But, here, in the age of scientific
advancement,
the
investigation
was
anything but scientific.

30. For all the reasons recorded
above, as we have found the ocular account
rendered by PW-3 and PW-4 not worthy of
acceptance to hold the appellant guilty and
there is no forensic evidence to link the
appellant with the crime, we have no
hesitation in holding that the prosecution
has failed to prove the charges against the
appellant
beyond
reasonable
doubt.
Therefore, the benefit of doubt must go to
the accused. Consequently, the appeal is
allowed. The impugned judgment and
order of the trial court is set aside. The
reference to confirm the death penalty is
answered in the negative and the prayer
to confirm the death penalty is rejected.
The appellant is acquitted of all the charges
for which he has been tried. The appellant
is in jail and shall be released forthwith
unless wanted in any other case subject to
compliance of the provisions of section
437-A CrPC to the satisfaction of the court
below.

31. Let the record of the lower court
along with certified copy of this order be
sent forthwith to the court below for
information and compliance.
----------
(2022)03ILR A122
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.03.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Capital Cases No. 13 of 2021
Connected with Reference No. 10 of 2021

Monu Thakur ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Archit Mandhyan, Sri Pradeep
Kumar Mishra, Sri Vinay Saran (Senior
Adv.)

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code,1860-Section 302, 376, 326-A,
354, 354-A, 452 - Protection from Children
from Sexual Offences Act,2012 - Sections
7/8, 5/6-challenge to-conviction/death
penalty-PW-1's daughter got burnt-she
died of septicaemia as a result of burn
injuries sustained by her-injury report
discloses victim had suffered thermal
burns to the extent of 80 to 85 percentprosecution failed to prove that the
accused entered the house of the victim,
misbehaved
with
her,
or
sexually
assaulted her in any manner-in absence of
admissible
evidence
to
prove
the
foundational
facts
of
commission
of
penetrative
sexual
assault,
the
presumptive provisions of Section 29 of
the POCSO Act would not get attractedthe dying declaration of the victim has not
been exhibited nor it has been put to the
accused while recording his statement u/s
3 All. Monu Thakur Vs. State of U.P.
123
313
Cr.P.C.-neither
the
recording
Magistrate not the doctor has been
examined-A retrial may be ordered when
the
original
trial
has
not
been
satisfactory for particular reasons-But
retrial cannot be ordered on the ground
that the prosecution did not produce the
proper
evidence-witnesses
had
exonerated the accused by giving their
affidavits saying it was a case of
accidental burns-non-exihibited dying
declaration makes allegation against
three persons whreas two of them are
not
named
and
one
is
mentioned
without parentage and proper addressdoctors did not speak about a word
about recording of dying declaration-in
these circumstances, if the prosecution
chose
not
to
prove
the
dying
declaration, it cannot be said the the
prosecution was prevented from leading
evidence in that regard-no forensic
evidence such as DNA profiling to
connect the appellant to the crime-no
application moved by any party to
summon the recording magistrate or the
doctor
to
prove
the
alleged
dying
declaration-PW-1,
2,
3
have
not
supported the prosecution case- no need
to summon the magistrate, when the
prosecution as well as victim's family
both are not relying on it-in the absence
of proof of foundational facts, the
benefit of presumption would not be
available to the prosecution u/s 29 of
the Act.(Para 1 to 45)

The appeal is allowed. (E-6)

List of Cases cited:

1. Noor Aga Vs St. of Punj. (2008) 16 SCC 417

2. Bhola Singh Vs St. of Punj. (2011) 11 SCC
653

3. Gorakh Nath Prasad Vs St. of Bih. (2018) 2
SCC 305

4. Babu Vs St. of Ker.(2010) 9 SCC 189

5. Mahadevu @ Papu Vs St. of Karn. (2020) SCC
OnLine Kar 3327: (2020) 6 Kant LJ 545;
6. Amol Dudhran Barsagade Vs St. of Mah. CRLA
No. 600 of 2017

7. Swapan Mondal Vs St. (2021) SCC Online Cal
2007

8. Shahid Hossain Biswas Vs St. of W. B.(2017)
3 Cal LT 243

9. Justin Vs U.O.I. & ors. (2020) SCC Online
Kerala 4956

10. Ukha Kolhe Vs St. of Mah. (1963) AIR SC
1531

11. Ramanlal Rathi Vs St. (1951) AIR Cal 305

12. Nasib Singh Vs St. of Punj. & anr. (2022 ) 2
SCC 89
(Delivered by Hon'ble Manoj Misra, J.)

1. This appeal, forwarded by the
Senior
Superintendent,
District
Jail,
Aligarh, vide letter dated 27.09.2021, on
the request of the appellant Monu Thakur,
assails the judgment and order of the court
of Additional District and Sessions Judge
/Special Judge (Pcoso Act), First, Hathras,
dated 23.09.2021, in Special Sessions Trial
No.40 of 2019, convicting the appellant
Monu Thakur under Sections 302, 376,
326-A, 354, 354-A, 452 IPC and Sections
7/8 and 5/6 of the Protection of Children
from Sexual Offences Act, 2012 (for short
Pocso Act) and sentencing him as follows:

(i) Under Section 302 IPC, death
sentence with fine of Rs.50,000/- and a
default sentence of additional six months
S.I.;

(ii) Under Section 326-A IPC,
imprisonment
for
life
with
fine
of
Rs.5,000/- and a default sentence of
additional six months S.I.;

(iii) Under Section 376 IPC read
with
Section
5/6
of
Pocso
Act,
imprisonment
for
life
with
fine
of
124 INDIAN LAW REPORTS ALLAHABAD SERIES
Rs.50,000/- and a default sentence of
additional six months S.I.;

(iv) Under Section 354 IPC read
with Section 7/8 of Pocso Act, five years
R.I. with fine of Rs.5,000/- and a default
sentence of additional one month S.I.;

(v) Under Section 452 IPC, seven
years R.I. with fine of Rs.10,000/- and a
default sentence of additional three months
S.I.;

(vi) Under Section 354-A IPC,
three years R.I. with fine of Rs.3,000/- and
a default sentence of additional fifteen days
S.I.

All sentences to run concurrently.

2. As death penalty was awarded by
the court below, a reference has been sent
to this Court under Section 366 (1) CrPC
for confirmation of death penalty which has
given rise to Reference No.10 of 2021.

3. Considering the nature of the
crime, we are not disclosing the name of
the victim, members of her family as well
of the witnesses of that area (locality) and,
therefore, wherever required, they have
been described by their witness number.

INTRODUCTORY FACTS

4. The prosecution case is based on a
written report (Ex. Ka-1) dated 16.04.2019
submitted by PW-1 (the informant - father
of the victim) at P.S. Sikandrarao, District
Hathras, at 11.57 hours, of which GD entry
(Ex. Ka-4) and Chik FIR (Ex. Ka-3) was
made / prepared by PW-4. In the FIR, it
was alleged that, on 15.04.2019, at about
10 pm, when PW-1 and his wife (not
examined) were away, their daughter (the
victim), aged about 14 years, who was with
her maternal grand mother (Nani) (PW-2),
the accused-appellant, aged 25 years, came
to the house and misbehaved with the
victim. When victim resisted his actions,
the accused set her ablaze. On registration
of the FIR, PW-4 prepared a letter for
medical examination of the victim and got
the
victim
medically
examined
on
16.04.2019, at 3.25 pm, through a lady
constable Sadhna (not examined), of which
medical / injury report (Ex. Ka-6) was
prepared by Dr. Gufran Ahmed (PW-6) at
J.N. Medical College Hospital, Aligarh
Muslim University, Aligarh. The injury
report reflected thermal burns to the extent
of 85% on head, neck, part of face, anterior
and posterior trunk, upper limb and lower
limb, genitalia. Thermal burns were from
kerosene oil and were found grievous in
nature. The general condition of the patient
was noted as critical. In the column
concerning Central Nervous System of the
patient it was noted conscious and oriented.
The internal examination of Genitalia was
made by doctor on duty of Obstetrics and
Gynaecology Department. The remarks in
respect thereof were as follows:- no
bleeding seen; no tear on vulva; and small
healed tear present on hymen at 7 O'clock
position. After being admitted in the said
hospital on 16.04.2019, the victim died
there on 01.05.2019, at 1.45 am. Autopsy
was conducted by PW-5, who prepared an
autopsy report (Ex. Ka-5) dated 2/5/2019,
which indicates that autopsy started at
12.15 hrs and completed at 12.45 hrs. In the
column relating to ante-mortem injuries, it
is mentioned in the autopsy report that
there were superficial to deep burn all over
body except parts of chest, legs, feet and
buttocks.
The
cause
of
death
was
septicaemia as a result of ante mortem 80%
thermal burn injuries. At the bottom of the
autopsy report, there is a note made under
the signature of Dr. Rashmi Choudhari (not
examined), dated 2/5/2019, which reads:
Local examination- labia B/L swelling; Pv-
Hymen intact; no bleeding from vagina;
3 All. Monu Thakur Vs. State of U.P.
125
vaginal slide & swab prepared for
spermatozoa detection.

5. The inquest was conducted on
01.05.2019 at the hospital itself. Inquest
report (Ex. Ka-2) was also witnessed by
PW-1. A death certificate (Ex. Ka-7) was
also issued. The vaginal smear slide and
vaginal swab were sent for forensic
examination and they did not reveal
presence of spermatozoa though there was
presence of blood. Half burnt jeans and half
burnt bra and plastic kerosene container
recovered
during
the
course
of
investigation were also sent for forensic
examination wherein the presence of
kerosene
oil
was
proved.
After
investigation, the second Investigation
Officer (I.O.) (PW-8) submitted a charge
sheet on which, after taking cognizance,
vide order dated 22.07. 2019, charges were
framed against the appellant by the court of
Special Judge (Pocso Act) of offences
punishable under Sections 452, 354, 354-A,
326-A, 302 IPC and, later, by order dated
13.09.2021, charge of offence punishable
under Section 376 IPC and Section 5/6 of
Pocso Act was added.

PROSECUTION EVIDENCE

6. During the course of trial, the
prosecution examined as many as nine
witnesses. Their testimony is being noticed
below.

7. PW-1 is the informant who is not
an eye witness of the incident. PW-1 stated
that on the date of the incident i.e.
15.04.2019 he and his wife were out of
their home; his daughter (the victim), aged
14 years, was at home with her maternal
grand mother (PW-2) when, at about 10
pm, the accused-appellant entered the
house and misbehaved with the victim.
When the victim resisted, the accusedappellant set her ablaze. PW-1's mother-inlaw (PW-2) tried to nab the accused but he
escaped. In respect whereof, PW-1 lodged
report, scribed by 'X' (not examined), on
16.4.2019 at P.S. Sikandrarao, District
Hathras. He proved the written report,
which was marked Ex. Ka-1. He also stated
that the place of occurrence was shown to
the I.O. by his mother-in-law and that in the
inquest report he had put his signature,
which was marked Ex. Ka-2.

During cross examination, he
stated that the written report was not read
out to him by the scribe; that he had just
put his signatures thereon; that the name
which he mentioned in the report, he does
not know; that the I.O. had recorded his
statement. He stated that during the
investigation, while recording his statement
under Section 161 CrPC, he had stated that
on 15.04.2019, at about 10-10.30 pm, while
the victim and his mother-in-law were at
home and he and his wife were out, on
return, his mother-in-law (PW-2) had
informed him that the victim met with an
accident on account of which, she got burnt
and, after coming to know about the truth,
he, his wife, his mother-in-law, the victim
and one villager had given affidavits to
Kaptan Sahab (the Superintendent of
Police) through the I.O. He stated that in
his presence the I.O. had not recorded the
statement of his daughter. He also stated
that when he returned home and had taken
the deceased to Medical College Aligarh,
she was not conscious. He also stated that
in his presence, no Magistrate had taken the
statement of the victim and that he is not
aware whether victim's statement was
recorded by the Magistrate. He stated that
his daughter had turned conscious after
several days but she did not disclose to him
that the incident occurred because of the
126 INDIAN LAW REPORTS ALLAHABAD SERIES
accused-appellant. He stated that whatever
he had stated to the I.O. was told to him by
his mother-in-law and that the name of the
accused-appellant was mentioned in the
report on being prompted by the villagers
due to their enmity in the village. He stated
that the information with regard to the
incident was given to him at home by his
mother-in-law (PW-2).

On further cross examination,
he stated that he is not sure with regard to
the date on which the victim died. He stated
that victim remained in the hospital for 2021 days. He stated that the I.O. had not
recorded the statement of his mother-in-law
in his presence. He admitted that at the time
of the incident only his mother-in-law (PW2) and the victim were present in the house.
He stated that he is not aware whether PW3 was present. He stated that his wife is
now no more alive.

In the cross examination on
5.08.2020, he added that when his daughter
had regained consciousness, she had told
him that she caught fire while cooking food
on the gas because when she tried to pick
up Masala Dani (spice container) from the
almirah, the bottle of kerosene oil fell over
the gas burner. PW-1 stated that when he
came to know about the truth, he submitted
an affidavit to the Superintendent of Police.
He also stated that when the Magistrate had
come to record the statement of his
daughter, PW-1's wife, PW-1's mother-inlaw and 3-4 ladies of the village were
present, who gave their statement to the
Magistrate, but the victim had not given
any
statement
because
she
was
unconscious. He further stated that PW-1's
wife
and
mother-in-law
(PW-2)
had
informed the Magistrate that what the
ladies have told him is incorrect. When that
was told to the Magistrate, the Magistrate
left stating that he would return as and
when the victim regains consciousness.
But, the Magistrate did not come thereafter
to
record
victim's
statement.
PW-1
reiterated that the accused-appellant neither
misbehaved with the victim nor set her on
fire.

8. PW-2 (the maternal grand
mother of the victim). She stated that at
the time of the incident on 15.04.2019, she
was sitting outside the house. The victim
was cooking food. Kerosene oil fell and the
victim caught fire; and by the time PW-2
and others could rush to douse the fire, the
victim got burnt. She stated that the
incident must have occurred at around 8
pm; and because of the incident, the case
was got registered against the accusedappellant. She stated that her statement was
recorded by the I.O.; that at the time of the
incident, there was no one else, except her;
and that she showed the place of the
incident to the I.O.

In the cross examination, she
stated that the victim caught fire because
kerosene bottle fell over the gas burner
while the victim was cooking food. She
stated that at the time of the incident, her
son-in-law (PW-1) and her daughter were
out of home. She stated that her statement
was recorded by PW-7 and not by any other
I.O. She confirmed that she had stated
before the I.O. that the victim caught fire
while cooking food on gas burner as the
bottle of kerosene oil accidentally fell on
the gas burner when the victim tried to pick
a Masala Dani (container of spices) from
the cabinet above. She reiterated that the
accused-appellant did not misbehave with
the victim and that he did not ablaze the
victim after pouring kerosene. She stated
that when PW-1 and her daughter returned,
they were informed about the incident and
when they came to know the truth, they
gave their affidavits.
3 All. Monu Thakur Vs. State of U.P.
127

On further cross examination,
she stated that victim remained in the
hospital for 20-22 days and that, during her
treatment, PW-2 did not visit the hospital.
PW-2 stated that she does not know when
the victim regained consciousness though
she visited the hospital once. She stated
that she had shown the burnt clothes of the
victim and the bottle of kerosene to the I.O.
She stated that PW-2' daughter (mother of
the victim) used to stay with the victim at
the hospital and after her daughter's death
(victim's mother), she has shifted to
Mathura.

9. PW-3. He stated that while he was
on his way to the village, on 15.04.2019,
between 10-10.30 pm, he heard loud noises
coming from the house of PW-1. When he
entered the house of PW-1, he saw PW-1's
daughter (the victim) ablaze and PW-2
trying to douse the fire, consequently, as a
matter of courtesy and humanity, he helped
her in dousing the fire. He stated that PW-2
told him that the victim got burnt while
cooking food on gas as kerosene bottle fell
over the gas burner while picking up
Masala Dani (container of spices). This
witness was declared hostile and was cross
examined by the prosecution.

In the cross examination, when
confronted with his statement recorded
under Section 161 CrPC he admitted what
was written there. He denied the suggestion
that the accused-appellant had misbehaved
with the victim and had put her on fire. He
also denied the suggestion that PW-2 had
not informed him that the victim got
accidentally burnt on account of kerosene
oil bottle falling over gas burner.

In the cross examination at the
instance of the accused-appellant, he
stated that the accused-appellant had not
misbehaved with the victim and that the
report against the accused was got lodged
through PW-1 by persons inimical to the
accused-appellant. He stated that he, PW-1,
PW-2 and the victim's mother all had given
affidavits to the Superintendent of Police,
Hathras through the I.O. On being
confronted with the affidavit, he recognised
his signatures on the affidavit. He also
stated
that
the
victim
had
turned
unconscious at the time of the incident and
had regained consciousness 4-5 days later
at Aligarh Medical College. He stated that
the concerned Magistrate had not recorded
the statement of the victim as the victim
was not in a state to give her statement, as
she was unconscious. He also stated that
whatever the Magistrate had recorded was
told to him by the ladies present at the
hospital and that when it was pointed to the
Magistrate
that
the
victim
was
not
conscious, therefore how her statement
could have been recorded, the Magistrate
said that he would come again, but he never
came.

10. PW-4-Constable Anil Kumar.
He proved the GD entry / registration of the
FIR (Case Crime No.190 of 2019) made on
16.04.2019, at 11.57 hours. He stated that
the victim was sent with lady constable
Sadhna and a Chitthi Majrubi (letter for
medical examination of the injured) to the
hospital and was got medically examined.
In his cross-examination he denied the
suggestion that no incident had taken place
or that the case was registered without a
written report.

11. PW-5- Dr. J.M. Sharma, the
doctor, who carried out autopsy of the
body, proved the autopsy report and stated
that the internal examination of genitalia of
the body was carried out by Dr. Rashmi
Chaudhary (not examined). The cause of
death, according to him, was on account of
128 INDIAN LAW REPORTS ALLAHABAD SERIES
septicemic shock, caused by infection on
account of 80% thermal burns.

12. PW-6 - Dr. Gufran Ahmad, the
doctor who medically examined the victim
on
16.04.2019.
He
stated
that
on
16.04.2019, at 3.25 pm, the victim, aged 13
years, was brought by lady constable
Sadhna for medical examination. At that
time, he was posted as Chief Medical
Officer in the Medical College and he
carried out the medical examination. He
stated that the victim was brought on a
stretcher; her pulse was 108 per minute;
respiration was 18 per minute; blood
pressure was 90/62; and she had thermal
burns upto 85% on account of being burnt
by kerosene oil. PW6 stated that he referred
the
victim
to
the
plastic
surgery
department. He proved the injury report
which was marked Ex. Ka-6.

In the cross examination, he
stated that when the victim was brought
before him, she was serious and 85% burnt
and was not in a position to walk. In PW2's presence the victim remained for about
half
an
hour
and
thereafter,
was
shifted/referred to another department after
being provided first aid.

13. PW-7-Manoj Kumar Sharma
(the first investigation officer). He stated
that after registration of the case, he took
over the investigation under the direction of
the Inspector In-charge, D.K. Sisodiya
(PW-8). Upon registration of the FIR, the
victim was sent for medical examination
through a lady constable Sadhna. The
victim was taken to J.N. Medical College,
Aligarh. When he went there with lady
constable, he came to know that the victim
is under treatment and is not in a position to
get her statement recorded. When he came
to the house of the victim, no one in the
neighbourhood was prepared to give
statement on fear of generation of ill-will.
Thereafter, he made effort to arrest the
named accused but he could not be found.
On 17.04.2019, the statement of PW-2
(witness of the incident) was recorded. On
inspection of the place of incident, one 5
liter empty bottle of kerosene and half
burnt clothes of the victim were recovered.
On 19.04.2019, he recorded the statement
of the informant (PW-1) and his wife. On
22.04.2019, he again went to J.N. Medical
College to record the statement of the
victim but came to know that she was put
on oxygen. He also tried to get her
statement recorded under Section 164 CrPC
but as she was not in a condition to appear
in court, her statement under Section 164
CrPC could not be recorded. During
investigation, he came to know that the
statement of the victim was recorded by
ACM-II, Aligarh, which was perused by
him on 01.05.2019 in which it was written
that when the victim was cooking food,
three persons including one Monu had tried
to misbehave with her and when she
resisted, they poured kerosene and set her
on fire. He stated that after the death of the
deceased, vide GD entry No.36, dated
05.05.2019, Section 302 IPC was added
and the investigation was taken over by
PW-8. He also stated that statement of the
victim was recorded, which was videographed. (Note:- This alleged statement
was neither exhibited nor the video
recording of that was proved and got
exhibited. This appears to be a part of the
case diary; it exculpates the accusedappellant and supports the story of
accident as stated by PW-2). PW-7 further
stated
that
during
the
course
of
investigation he had received affidavit of
victim and PW-3. He also stated that he had
collected the school certificate of the victim
which disclosed her date of birth as
3 All. Monu Thakur Vs. State of U.P.
129
02.10.2007. He proved the site plan of the
place prepared by him during investigation,
which was marked Ex. Ka-7. He proved the
recovery of half burnt clothes and the
container of kerosene oil. The recovery
memo of which was marked as Ex. Ka-8.

In the cross examination, he stated
that he could not record the statement of
the victim initially but when the victim's
condition improved, he recorded her
statement in the presence of lady constable
Sadhna Sagar (not examined). He stated
that recording of her statement was videographed and computer CD was also
prepared. (Note:- Neither a transcript nor
the video recording of this statement was
got exhibited and importantly the lady
constable
Sadhna
Sagar
was
not
examined). He further stated that prior to
the recording of the statement of the victim,
he had recorded the statement of informant
(PW-1) and victim's mother (not examined)
as well as victim's grand mother (PW-2)
and the witness (PW-3). He stated that the
affidavit of the victim was obtained on
29.04.2019. He stated that he made an
effort to get the statement of the victim
recorded under Section 164 CrPC. He
stated that he had incorporated the contents
of the affidavit and the dying declaration of
the victim in the case diary.

14. PW-8- D.K. Sisodiya. He is the
investigating officer who took over the
investigation after the death of the victim.
He stated that he raided places to arrest the
accused and, ultimately, on 17.05.2019, he
could manage to arrest the accused and got
his statement recorded. On 21.05.2019, he
got the statement of informant and the
inquest witnesses recorded. Thereafter, on
24.05.2019, he recorded the statement of
grand mother and mother of the victim; and
on 28.05.2019 he recorded the statement of
an independent witness and Dr. J.M.
Sharma and Dr. Gufran Ahmad, thereafter,
submitted charge sheet against the accusedappellant, which was exhibited as Ex. Ka-9.
He also stated that after submission of the
charge sheet, the report of the forensic
laboratory
was
received,
which
was
incorporated in the case diary.

In the cross examination, he
stated that at the time when he was
assigned investigation the victim was dead,
therefore he had no opportunity to record
the statement of the victim. He admitted
that the victim's statement was recorded by
the earlier I.O., Manoj Kumar Sharma and
lady constable Sadhna of which entry is
there in the Case Diary (CD). He admitted
that he had not recorded the statement of
the victim though he had read the statement
of the victim incorporated in the case diary.
He denied the suggestion that without
proper investigation of the matter, he
submitted charge sheet.

15. PW-9 Shaheen, the doctor who
did internal medical examination of the
victim on 16.04.2019. She stated that, on
16.04.2019, the victim, aged 13 years, was
brought to the hospital in a burnt condition.
PW-6 had medically examined her and in
the
team
constituted
for
internal
examination of the victim, she was a
member. During internal examination, she
did not notice any bleeding from victim's
private part and there were no injuries
noticed though the hymen was found torn
at 7 O'clock position. She proved her
notings on the injury report marked Ex. Ka6. On being questioned by the court as to
when hymen can be torn at 7 O'clock
position, she stated that this could be a
consequence of sexual assault (rape) or
penetration or manipulation. She reiterated
that hymen was found torn.
130 INDIAN LAW REPORTS ALLAHABAD SERIES

In her cross examination by the
defence, she reiterated what she stated
above but added there was no injury
noticed on the vulva. She denied the
suggestion that she submitted report
without medical examination.

16. The incriminating circumstances
appearing in the prosecution evidence were
put to the accused-appellant who claimed
that he is innocent and not guilty. He,
however, did not disclose the reason as to
why he was implicated. But, interestingly,
the dying declaration alleged to have been
recorded either by the Magistrate or by the
I.O. was neither exhibited nor put to the
accused during his examination under
Section 313 CrPC. The defence, however,
led no evidence.

TRIAL COURT FINDINGS

17. The trial court found the victim to be a
minor with her date of birth being 02.10.2007;
that the lodging of the FIR and submission of
charge sheet against the accused-appellant was
proved by PW-1 and PW-8, respectively; that
the place of incidence was proved by the
prosecution witnesses; and that the medical
report (Ex. Ka-6) proved that hymen of the
victim was torn therefore, by placing reliance
on the provisions of Section 29 of the Pocso
Act, burden was cast on the accused to prove
his innocence and, thereafter, by relying on the
dying declaration (Paper No.39 Ka/1) and the
statement of PW-2 that because of the incident
FIR was lodged against Monu Thakur, held that
the prosecution was successful in proving the
charge against the appellant. Consequently, the
trial court recorded conviction and awarded
punishment as above.

18. Challenging the judgment and
order of conviction and sentence, this
appeal has been filed.

19. We have heard Sri Vinay Saran,
learned Senior Counsel, assisted by Sri
Pradeep Kumar Mishra and Sri Archit
Mandhyan, appointed by the High Court
Legal Services Committee to represent the
appellant; and Sri H.M.B. Sinha along with
Sri Awadhesh Shukla, learned AGA, for the
State and have perused the record

SUBMISSIONS ON BEHALF
OF THE APPELLANT

20. The learned counsel for the
appellant submitted that the reverse burden
put by Sections 29 and 30 of the Pocso Act
applies only when the foundational facts in
respect of commission of specified offences
by the accused are proved by legally
admissible evidence. In absence of proof of
foundational facts with regard to commission
of offence punishable under the Pocso Act,
the reverse burden cannot be placed on the
accused to prove his innocence therefore, the
judgment and order of the trial court is
vitiated by a manifestly erroneous approach
in law. Sri Saran submitted that the
prosecution
examined
only
two
eye
witnesses, namely, PW-2 and PW-3. Neither
PW-2 nor PW-3 stated before the court that
the accused-appellant misbehaved with the
deceased or poured kerosene on the deceased
and set her on fire. Rather, they deposed that
the deceased got burnt accidentally because
the kerosene oil bottle fell over the gas burner
while the deceased was cooking food. In so
far as PW-1, the informant, is concerned, he
is admittedly not an eye witness and his
statement in the FIR is hearsay and cannot be
considered substantive evidence to enable the
court to proceed with an assumption that
foundational facts of the specified offences
punishable under the Pocso Act are proved.

21.

In
respect
of
the
dying
declaration, Sri Saran submitted that, no
3 All. Monu Thakur Vs. State of U.P.
131
doubt, from the testimony of the I.O. it
appears that he received information of the
dying declaration having been recorded by
a Magistrate but the recording of the dying
declaration by the Magistrate concerned
and the fitness certificate of the doctor
concerned for its recording is neither
proved nor any such witness was examined
to prove the same. Further, the dying
declaration, on which reliance has been
placed, is not even marked an exhibit and
has not been put to the accused while
recording his statement under Section 313
CrPC therefore, on this ground alone, the
said dying declaration could not have been
relied upon by the trial court. Sri Saran
further pointed out that this is a case where
even during investigation the witnesses had
given their affidavits resiling from the
allegations made in the FIR, and those
affidavits were part of the police report,
thus, the court ought not have treated the
appellant as an accused sent for trial much
less raising a presumption of his guilt under
Section 29 of the Pocso Act. Summing up
his submissions, learned counsel for the
appellant submitted that this is a case where
there is virtually no legally admissible
evidence to record conviction and therefore
the award of the death sentence is
completely unwarranted. It has been
submitted that, under the circumstances, the
judgment and order of the trial court should
be set aside and the appellant be
honourably acquitted of all the charges for
which he has been tried.

SUBMISSIONS ON BEHALF
OF THE STATE

22. Per contra, learned AGA supported
the judgment and order of the trial court and
submitted that it is a case where witnesses
were under pressure, may be for whatever
reason, and therefore, they resiled from the
accusation made in the FIR but that, by itself,
cannot earn an acquittal for the accusedappellant inasmuch as the lodging of FIR
against the appellant was proved and the
medical examination report of the victim, who
was a minor, was proved, which revealed that
her hymen was torn at 7 O'clock position
therefore, the foundational fact of offence
punishable under Pocso Act was proved.
Hence, the burden was rightly placed on the
accused-appellant to prove his innocence,
which he failed to discharge as he led no
evidence. Further, at the time of admission in
the hospital on 16.04.2019, the victim was
marked conscious and oriented by the doctor
who prepared the injury report and, therefore,
as there appears a dying declaration on record
and the foundational facts of the offence of
penetrative sexual assault on a minor been
proved, the burden was rightly placed on the
accused to prove his innocence and, in absence
of defence evidence, conviction was justifiably
recorded. He further submits that though the
recording Magistrate might not have been
examined but as the existence of the dying
declaration (Paper No.39 Ka-1) on record is
admitted by the I.O., it could be taken into
consideration. He therefore submits that the
conviction recorded by the court below suffers
from no infirmity.

23. On the question of sentence,
learned counsel for the State submitted that
since it is a case of rape of a minor and,
thereafter, the minor was brutally burnt,
which resulted in her death, death sentence
awarded to the accused-appellant is not
unwarranted, therefore, the appeal be
dismissed and the death penalty be
confirmed.

ANALYSIS

24.

Having
noticed
the
rival
submissions and having perused the record
132 INDIAN LAW REPORTS ALLAHABAD SERIES
carefully, before proceeding further, we
would have to first examine as to what is
the true import of the provisions of section
29 of the Pocso Act (for short the Act) and
as to when the benefit of that section would
be available to the prosecution and to what
extent. To have a clear understanding of the
issue it would be necessary to have a look
at the broad features of the Act and the
offences
punishable
thereunder.
The
Preamble of the Act after narrating its
genesis, sets out the object, purpose and
reason for its enactment as follows:-

"An Act to protect children from
offences of sexual assault, sexual harassment
and
pornography
and
provide
for
establishment of Special Courts for trial of
such offences and for matters connected
therewith or incidental thereto.

WHEREAS clause (3) of article 15
of the Constitution, inter alia, empowers the
State to make special provisions for children;

AND WHEREAS, the Government
of India has acceded on the 11th December,
1992 to the Convention on the Rights of the
Child, adopted by the General Assembly of the
United Nations, which has prescribed a set of
standards to be followed by all State parties in
securing the best interests of the child;

AND WHEREAS it is necessary for
the proper development of the child that his or
her right to privacy and confidentiality be
protected and respected by every person by all
means and through all stages of a judicial
process involving the child;

AND WHEREAS it is imperative
that the law operates in a manner that the best
interest and well being of the child are
regarded as being of paramount importance at
every stage, to ensure the healthy physical,
emotional, intellectual and social development
of the child;

AND WHEREAS the State parties to
the Convention on the Rights of the Child are
required to undertake all appropriate national,
bilateral and multilateral measures to prevent-
-

(a) the inducement or coercion of a
child to engage in any unlawful sexual
activity;

(b) the exploitative use of children in
prostitution
or
other
unlawful
sexual
practices;

(c) the exploitative use of children in
pornographic performances and materials;

AND
WHEREAS
sexual
exploitation and sexual abuse of children are
heinous crimes and need to be effectively
addressed.

BE it enacted by Parliament in the
Sixty-third Year of the Republic of India as
follows:--"

25. Chapter-I of the Act includes
provisions relating to title, extent and
commencement
of
the Act
as
also
definitions of the terms used in the Act.
Chapter-II relates to sexual offences against
children. Sexual offences are categorised
as: (A) Penetrative Sexual Assault; (B)
Aggravated Penetrative Sexual Assault; (C)
Sexual Assault; (D) Aggravated Sexual
Assault; and (E) Sexual Harassment.
Chapter II also provides punishment for the
offences
specified therein. Chapter-III
relates to using child for pornographic
purposes and punishment therefor. ChapterIV relates to abetment of and attempt to
commit
an
offence
and
punishment
therefor. Chapter-V relates to the procedure
for reporting of cases. Chapter-VI relates to
procedures for recording statement of the
child. Chapter-VII relates to Special Courts
as also presumption as to certain offences
and presumption of culpable mental state
including application of Code of Criminal
Procedure, 1973 (CrPC), save as otherwise
provided, to proceedings before a Special
Court and for appointment of Special
3 All. Monu Thakur Vs. State of U.P.
133
Prosecutors. Chapter-VIII relates to the
procedure and powers of special courts and
recording of evidence. Chapter-IX contains
miscellaneous provisions.

26. Section 42 falling in Chapter-IX
provides that where an act or omission
constitutes an offence punishable under the
Act and also under sections 166A, 354A,
354B, 354C, 354D, 370, 370A, 375, 376,
376A,
376-AB,
376B,
376C,
376D,
376DA, 376-DB, 376E, section 509 of the
Indian Penal Code (45 of 1860) or section
67 B of the Information Technology Act,
2000 (21 of 2000), then, notwithstanding
anything contained in any law for the time
being in force, the offender found guilty of
such offence shall be liable to punishment
under the Act or under the Indian Penal
Code as provides for punishment which is
greater in degree.

27. Section 42A provides that the
provisions of the Act shall be in addition to
and not in derogation of the provisions of
any other law for the time being in force
and, in case of any inconsistency, the
provisions of the Act shall have overriding
effect on the provisions of any such law to
the extent of the inconsistency.

28. Having noticed the broad features
of the Act, we now proceed to notice the
presumptive
provisions
contained
in
section 29 of the Act on which reliance has
been placed by the trial court while
convicting the appellant. In fact, there are
two separate sections in that regard in the
Act, namely, section 29 and section 30,
they read as follows:-

"29. Presumption as to certain
offences.--Where a person is prosecuted for
committing or abetting or attempting to
commit any offence under sections 3, 5, 7
and section 9 of this Act, the Special Court
shall presume, that such person has
committed or abetted or attempted to
commit the offence, as the case may be,
unless the contrary is proved.

30.