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

- **Citation:** Reference No. 04 of 2019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-14
- **Case number:** Reference No. 04 of 2019
- **Bench:** Pankaj Mithal, Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mouni-in-jail-v-state-of-u-p-46179
- **Pages:** 20

## Headnote

A. Evidence law- Evidence Act (1 of 1872)-
Section 118 - Who may testify - Child
witness - Competency - Preliminary test -
it is only a rule of prudence that there
should be a record of the question put &
answer received during the preliminary
examination - for ascertaining the
competence of the child witness - If No
such test made - Consequence - non
recording of the questions & answers - no
ground for rejecting the testimony of
child witness - if it appears to be
otherwise reliable (Para 46)

Held - It appears from PW 13 statement that
learned trial court administered oath to him -
itcan be inferred that the learned trial court
must have found him capable of giving
intellectual answers to the questions put to him.
(Para 44, 46)

B. Criminal Law- Indian Penal Code (45 of
1860)-Section 302 - Evidence Act (1 of
1872)-Section 3 - Circumstantial evidence
- Last seen theory - Applicability - Time
gap between last seen and death - time
gap between last seen alive and the
recovery of dead body must be so
small that the possibility of any person
other than the accused being the author
of the crime becomes impossible - last
seen
evidence
-
very
important
circumstantial evidence - if proved &
found trustworthy - it can singularly lead
to the inference of guilt. (Para 36, 40)

Accused committed rape and murder of his own
7 years old daughter - statement oflastseen given
by PW13 son of the accused - stated accused to
ok victim out saying that he is taking her to get
medicine - same night victim dead body was
recovered- Held - no delay or time gap between
last seen and the discovery of the dead body -
unimpeachable evidence of last seen supported by
medical and FSL report - victim hymen was
lacerated, vagina was bleeding, marks of injury on
body, show that rape was committed- previous
conduct that accused used to sexually abuse
the deceased - convictionu/s 302/376(f)IPC
justified.

C. Criminal Law -Indian Penal Code (45 of
1860) - Section 201, 361, 363 - Victim
7years daughter of accused - Victim
mother already died-accused was only
lawful
guardian
-
ingredients
ofthe
offence
u/s
361
not
complete
to
constitute the offence -noevidencethat
accused did anything to disappear the
body - conviction u/s 363 and section
201IPC is not sustainable

D. Criminal law-Indian Penal Code (45 of
1860) , 376(2)(f) - Protection of Children
From Sexual Offences Act (32 of 2012)-
Sections 5(n), 5(m), S.6 - Punishment -
Death
sentence-
Death
penalty
is
exception to rule of life imprisonment -
Aggravating and mitigating circumstances
- just balance has to be struck between
the
aggravating
and
the
mitigating
circumstances

Held
-
Aggravating
circumstances
were
accused was the father of the deceased & the
deceased was only 7 years in age & he
committed rape and murder - Mitigating factor
is that the accused was in the habit of taking
wine and drugs, whole case is based on
2 INDIAN LAW REPORTS ALLAHABAD SERIES
 circumstantial evidence, murder has not been
committed in an unusual and cruel manner -
sentence of life imprisonment sufficient in
the circumstances of the case (Para 64)

Appeal partly allowed (E-5)

List of cases cited :-

1.St. of Raj. Vs Kheraj Ram (2003)8SCC224

2.Vilas
Pandurang
Patil
Vs
St.of
Mah.
(2004)6SCC158

3.Arun Bhanudas Pawar Vs St. of Mah.
2008(61)ACC32(SC)

4.Vithal Eknath Adlinge Vs St. of Mah.
AIR2009SC2067

5.VijayKumar Vs St. of Raj. (2014)3SCC412

6.Bhimsingh
Vs
St.
of
Uttarakhand
(2015)4SCC281

7.RohtasKumar Vs St. of Har. 2013(82)ACC401
(SC)

8.Prithipal Singh Vs St. of Punj. (2012)1SCC10

9.Ashok Vs St. of Mah. (2015)4SCC 393

10.St.
of
Goa
Vs
Pandurang
Mohite
AIR2009SC1066

11.St.of UP Vs Satish,2005(3)SCC114

12.Sardar Khan Vs St. of Karn. (2004) 2 SCC
442

13.Niranjan Panja Vs St. of WB(2010)6SCC525

14.St. of UP Vs Satish (2005)3SCC114

15.Ravi Vs St. of Karnataka AIR2018SC2744

16.Rameshwar
Vs
St.
of
Rajasthan
AIR1952SC54

17.St. of Raj. V

## Text

_Characters 0–39,858 of 68,065. This is a partial read: ask again with offset=39858 for what follows._

3-5 All. Mouni Vs. State of U.P. & Anr.
1
(2020)03-05ILR A1
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.05.2020

BEFORE
THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Reference No. 04 of 2019
&
Capital Case No. 6 of 2019

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

Counsel for the Appellant:
From Jail, Saghir Ahmad A/C

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

A. Evidence law- Evidence Act (1 of 1872)-
Section 118 - Who may testify - Child
witness - Competency - Preliminary test -
it is only a rule of prudence that there
should be a record of the question put &
answer received during the preliminary
examination - for ascertaining the
competence of the child witness - If No
such test made - Consequence - non
recording of the questions & answers - no
ground for rejecting the testimony of
child witness - if it appears to be
otherwise reliable (Para 46)

Held - It appears from PW 13 statement that
learned trial court administered oath to him -
itcan be inferred that the learned trial court
must have found him capable of giving
intellectual answers to the questions put to him.
(Para 44, 46)

B. Criminal Law- Indian Penal Code (45 of
1860)-Section 302 - Evidence Act (1 of
1872)-Section 3 - Circumstantial evidence
- Last seen theory - Applicability - Time
gap between last seen and death - time
gap between last seen alive and the
recovery of dead body must be so
small that the possibility of any person
other than the accused being the author
of the crime becomes impossible - last
seen
evidence
-
very
important
circumstantial evidence - if proved &
found trustworthy - it can singularly lead
to the inference of guilt. (Para 36, 40)

Accused committed rape and murder of his own
7 years old daughter - statement oflastseen given
by PW13 son of the accused - stated accused to
ok victim out saying that he is taking her to get
medicine - same night victim dead body was
recovered- Held - no delay or time gap between
last seen and the discovery of the dead body -
unimpeachable evidence of last seen supported by
medical and FSL report - victim hymen was
lacerated, vagina was bleeding, marks of injury on
body, show that rape was committed- previous
conduct that accused used to sexually abuse
the deceased - convictionu/s 302/376(f)IPC
justified.

C. Criminal Law -Indian Penal Code (45 of
1860) - Section 201, 361, 363 - Victim
7years daughter of accused - Victim
mother already died-accused was only
lawful
guardian
-
ingredients
ofthe
offence
u/s
361
not
complete
to
constitute the offence -noevidencethat
accused did anything to disappear the
body - conviction u/s 363 and section
201IPC is not sustainable

D. Criminal law-Indian Penal Code (45 of
1860) , 376(2)(f) - Protection of Children
From Sexual Offences Act (32 of 2012)-
Sections 5(n), 5(m), S.6 - Punishment -
Death
sentence-
Death
penalty
is
exception to rule of life imprisonment -
Aggravating and mitigating circumstances
- just balance has to be struck between
the
aggravating
and
the
mitigating
circumstances

Held
-
Aggravating
circumstances
were
accused was the father of the deceased & the
deceased was only 7 years in age & he
committed rape and murder - Mitigating factor
is that the accused was in the habit of taking
wine and drugs, whole case is based on
2 INDIAN LAW REPORTS ALLAHABAD SERIES
 circumstantial evidence, murder has not been
committed in an unusual and cruel manner -
sentence of life imprisonment sufficient in
the circumstances of the case (Para 64)

Appeal partly allowed (E-5)

List of cases cited :-

1.St. of Raj. Vs Kheraj Ram (2003)8SCC224

2.Vilas
Pandurang
Patil
Vs
St.of
Mah.
(2004)6SCC158

3.Arun Bhanudas Pawar Vs St. of Mah.
2008(61)ACC32(SC)

4.Vithal Eknath Adlinge Vs St. of Mah.
AIR2009SC2067

5.VijayKumar Vs St. of Raj. (2014)3SCC412

6.Bhimsingh
Vs
St.
of
Uttarakhand
(2015)4SCC281

7.RohtasKumar Vs St. of Har. 2013(82)ACC401
(SC)

8.Prithipal Singh Vs St. of Punj. (2012)1SCC10

9.Ashok Vs St. of Mah. (2015)4SCC 393

10.St.
of
Goa
Vs
Pandurang
Mohite
AIR2009SC1066

11.St.of UP Vs Satish,2005(3)SCC114

12.Sardar Khan Vs St. of Karn. (2004) 2 SCC
442

13.Niranjan Panja Vs St. of WB(2010)6SCC525

14.St. of UP Vs Satish (2005)3SCC114

15.Ravi Vs St. of Karnataka AIR2018SC2744

16.Rameshwar
Vs
St.
of
Rajasthan
AIR1952SC54

17.St. of Raj. Vs Vijayram,1968Cr.LJ270

18.Suresh Vs St. of UP AIR 1981SC1122
19.Suryanarayana Vs St. of Karn. (2001)9 SCC
129

20.St. of Karn. Vs Shantappa Madivalappa
Galapuji (2009)Crimes245(SC)

21.Nivrutti Pandurung Kokate (2008)12SCC565

22.Himmat Sukhdeo Wahurwagh Vs St. of Mah.
(2009)2Crimes294

23.GulSingh Vs St. of MP 2015(88)ACC358 (SC)

24.Bachan Singh Vs St.of Punj. AIR1980SC898

25.Machi Singh Vs St. of Punj. (1983)3SCC470

26.Ravji Vs St. of Raj. (1996)2SCC175

27.Swamy
Shraddananda
(2)Vs
St.
of
Karn.,(2008) 13SCC767

28.Aloke
Nath
Dutta
Vs
St.
of
WB
(2007)12SCC230

29.Jayawant Dattatraya Suryarao Vs St. of Mah.
(2001)10SCC109

30.Nazir Khan Vs St. of Delhi (2003)8SCC461

31.Dilip Prem Narayan Tiwari Vs St. of Mah. AIR
2010SC36

32.Sebastian Vs St. of Kerala (2010)1SCC58

33.Vikram Singh Vs St. of Punj. (2010)3 SCC 56

34.Mulla Vs St. of UP (2010)3SCC508

35.Sandeep Vs St. of UP (2012) 6 SCC 107

36.U.O.I. Vs. Sriharan @ Murugan (2016) 7 SCC 1

37.Raj Kumar Vs.St. of M.P.,(2014)5 SCC353

38.Selvam Vs State (2014)12SCC 274

39.Tattu Lodhi Vs St. of MP (2016)9SCC675

40.Parsuram Vs St. of MP (2019)8SCC382.

41. Sachin Kumar Singhraha Vs St. of MP (2019)
8 SCC 371
3-5 All. Mouni Vs. State of U.P. & Anr.
3
(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Heard Sri Saghir Ahmad, Senior
Advocate/Amicus Curiae for the appellant
and Sri Ajit Ray, learned AGA for the
respondents.

2. This appeal has been filed by the
appellant Mouni against the impugned
judgment dated 19.09.2019, passed in
Special Sessions Trial No. 624 of 2018, by
Special Judge (POCSO Act)/Additional
Sessions Judge, Court No. 9, Agra, arising
out of Case Crime No. 605 of 2017, under
Sections 363, 302, 201, 376(f) IPC and
Section 5(n) read with Section 5(m)/6 of
the POCSO Act, Police Station Etmadpur,
District Agra by which the learned trial
court had convicted the appellant Mouni
for the offence under Section 302 IPC and
awarded death sentence along with fine of
Rs. 1 Lakh and in default of fine one year
additional imprisonment, under Section 376(f)
IPC for life imprisonment along with fine of
Rs. 50,000/- and in default of fine six months
additional imprisonment, under Section 363
IPC for seven years imprisonment along with
fine of Rs. 25,000/- and in default of fine three
months
additional
imprisonment,
under
Section 201 IPC for three years imprisonment
along with fine of Rs. 10,000/- and in default
of fine two months additional imprisonment
and for the offences under Section 5(n) read
with Section 5(m)/6 of the POCSO Act for 14
years rigorous imprisonment along with fine
of Rs. 50,000/- and in default of fine six
months additional imprisonment.

3. The Special Judge after convicting
and sentencing the appellant for death
sentence has submitted the record to this
Court for confirmation of death sentence
under Section 366 CrPC, which has been
registered as Reference No. 6 of 2019.

4. The appeal and the reference both
are being decided simultaneously as both
relate to the same impugned judgment.

5. Briefly, the prosecution case is that
accused Mouni himself lodged an oral
report on 24/25.11.2017 at about 02:30 AM
in the mid night with the allegation that on
24.11.2017, he and his daughter (victim)
aged about 7 years, Jeete aged about 9
years were sleeping on the cot in his hut. At
about 02:30 AM in the mid night, he got
awakened and found that the victim was
not on the cot and she was missing. He
tried to search her in the surroundings but
he could not trace her. The victim was
wearing a red trouser and red sweater.
Having failed to trace out her, he went to
the police station and orally reported the
matter and on that basis, the offence against
unknown person was registered under
Section 363 IPC. SSI Suneel Kumar started
the investigation, the police tried to search
out the missing child and in the night at
about 03:00 AM, she was found in the
naked condition in the courtyard of the
building of Government Model School. She
was taken to the hospital, where she was
declared dead. Thereafter a written report
was given by the accused Mouni to the
Police Station Etmadpur stating that he was
living in a hut near the Government Modal
School. On 24.11.2019, when he, his
daughter and his son were sleeping in the
night on cot, at about 2:30 AM in the night
he got awakened and found that his
daughter is not there on the cot and was
missing. He tried to search her and
thereafter, he informed about the incident
in the police station in the night itself. He
and police of the local police station were
searching his daughter in the Government
Model School building and there in the
courtyard, they found the victim in naked
condition and her inner-wear (Baniyan)was
4 INDIAN LAW REPORTS ALLAHABAD SERIES
lying closer to her. There were mark of
injuries on her body and bleeding was
present in her private part. She was taken to
the emergency of the S.N. Hospital, where
she was declared dead. He suspects that
some unknown person killed her after
committing rape.

6. On the basis of this written report
an addition of Sections 302, 201, 376 IPC
and Section 3/4 POCSO Act were made
and the investigation was started. The
inquest report of the dead body was
prepared, dead body was sealed and after
preparing the necessary papers, the dead
body was sent for postmortem. The
investigating
officer
recorded
the
statements of the witnesses, prepared the
site map of the place of occurrence, took in
possession the wearings of the deceased
and took swab etc. from the private part of
the deceased. During investigation, primafacie the offence was made out against the
accused Mouni, the informant himself.
Charge-sheet
was
submitted
for
the
aforesaid offence and charges were framed
against the accused person.

7. The prosecution has examined as
many as 16 witnesses in support. They are
PW-1 Kartal, PW-2 Servesh, PW-3 Johny,
PW-4 Dr. Udit Kumar, PW-5 Lajja Ram,
PW-6 Shailendra Yadav, PW-7 Shammi
Kapoor, PW-8 Rahul, PW-9 Ramchandra,
PW-10 Constable Sandeep Singh, PW-11
SI Vinod Kumar, PW-12 Sonu, PW-13
Jeete, PW-14 Constable Harendra Singh,
PW-15 SO Fateh Bahadur Singh Bhadauria
and PW-16 SI Suneel Kumar.

8. The witnesses have proved the incident
and the documents such as written report Ext.
Ka-1, postmortem report Ext. Ka-2, chik FIR
Ext. Ka-3, GD reports Exts. Ka-4 & Ka-5,
panchnama Ext. KA-6, 12 & 13, photo nash
Exts, Ka-7 &14, charge sheet Ext. Ka-8, site
plan Ext. Ka-9, letter to RI Ext. Ka-10, sample
seal Ext. Ka-11, form-13 Ext. Ka-15, report of
forensic science laboratory Ext. Ka-16, spot
investigation/DNA report Exts. Ka-17/1 &
17/2, letter to CMO Ext. Ka-18, application for
video-graphy Ext. Ka-19, recovery memo of
clothes of deceased Ext. Ka-20, recovery memo
of clothes of the accused Ext. K-21 and
envelope, swab of the private part of the
deceased, hair of the deceased and the accused,
clothes etc. material Exts. 1 to 26.

9. The statement of the accused was
recorded under Section 313 CrPC, wherein
he has denied the prosecution version and
has stated the evidence of the witnesses to
be false and given due to enmity. He has
been falsely implicated in the present case.
However, the accused did not produce any
evidence in his defence.

10. After perusing the evidence
available on record, the learned trial court
has
passed
the
aforesaid
impugned
judgment convicting and sentencing the
accused-appellant
by
awarding
death
sentence and other punishments.

11.
 Feeling
aggrieved
by
the
impugned judgment, the present appeal
from jail has been filed challenging the
impugned judgment on the ground that the
impugned judgment is against the facts,
evidence and law. The sentence awarded is
excessive and the prosecution has failed to
prove the case against him. No case is
made out and the benefit of doubt has not
been given to him, hence, the impugned
judgment is liable to be set aside and the
accused-appellant is entitled for acquittal.

12. The learned trial court has also
submitted the record of the case for
confirmation of the death sentence.
3-5 All. Mouni Vs. State of U.P. & Anr.
5

13. Before proceeding to analyze and
examine the evidence on record, it appears
necessary to first go through the evidence which
has been produced by prosecution in support of
case. PW-1 Kartal has stated that at the time of
incident, he was living near Government Model
School in a hut constructed by him. Besides his
hut there is hut of Rajendra. About ten months ago
in the mid night at about 03:30 AM, the police
team came and awakened him. Mouni was
accompanying the police team who told that his
daughter is missing. The police along with Mouni
started searching the deceased in the building of
Government Model School. Sarvesh was also
accompanying. After some times, the appellant
came with the deceased who was unconscious.
She was taken to the Government Hospital.
Thereafter, he came to know that Mouni
committed rape and killed her. His statement was
taken by the police.

14. PW-2 Sarvesh has stated that his hut is
in front of the hut of Mouni, wherein he lives
with his family. Ten months before at about
03:30 AM in the mid night, the police jeep came
and he was awakened. The police was
accompanied by Mouni who told that his
daughter is missing. They all started searching
his daughter. The police went to search the
victim in the garden of the school and in the left
side of the building, Mouni went and he told that
his daughter is lying in the courtyard. The
witness has stated that he saw that the victim was
lying naked in the school's courtyard. The victim
was taken to the S.N. Medical College.
Subsequently, he came to know that Mouni has
committed murder of his daughter after
committing rape on her. His statement was taken
by the police.

15. PW-3 Johny has stated that about
ten months before Mouni got the report
scribed by him and has the proved the
written report. He has also stated about the
incident as narrated to him by the accused.

16. PW-4 Dr. Udit Kumar, Medical
Officer, CHC, Kheragarh, Agra has stated
that on 25.11.2017, Constable Harendra
Singh of Police Station Etmadpur had
brought the sealed dead body of the
daughter of Mouni for postmortem. The
dead body was unsealed. The height of the
deceased was 3 feet and 10 inches and her
weight was about 15 Kg. In the external
examination, it was found that her mouth
and eyes were closed and the white portion
of the eyes were congested. The following
ante-mortem injuries were found on the
body of the deceased-

(I) Teeth bite 4 cm. X 3 cm. on the
on face.

(ii) Teeth bite 4 cm. X 3 cm. on
chest at nipple.

(iii) Teeth bite 4 cm. X 3 cm. near
the umbilical area.

(iv) Abrasion and contusion was
present on the left side of the forehead.

(v) Abrasion 2 cm. X 2 cm. on the
front of the nose.

(vi) Lacerated wound 0.5 cm. X
0.5 cm. on the lower lips.

(vii) Abrasion and contusion 9
cm. X 2 cm. on the left side of the neck.

In
the
internal
examination,
nothing was found in the head. The brain
and its membranes were congested. Lungs
were found congested. Heart was empty.
Half digested food was present in the
stomach. Fecal matter and gas was present
in the large intestine. In the small intestine
digested food and gas was present. Liver
was congested and gall bladder was half
full. Kidney was congested. Urinary
bladder was empty. Hymen was torn.
Bleeding was present in the vagina. Uterus
was non gravid. Larynx and Vocqal cords
were
congested.
Trachea
was
also
congested and the hyoid bone was intact.
6 INDIAN LAW REPORTS ALLAHABAD SERIES
The reason of death was asphyxia. In the
cross examination, the doctor has stated
that no clear opinion can be given with
regard to commission of rape. Postmortem
has been conducted on 25.11.2017 at 5.20
PM and according to doctor, death must
have been caused 3⁄4 days before on the
same day.

17. PW-5 Lajja Ram has stated that
about one year before he was passing with
Shailendra Yadav through the Government
Model School, Etmadpur, where many
persons were gathered. On inquiry, he
came to know that accused Mouni has
committed sexual assault with his 6-7 years
old daughter and at that time, he was in a
drunk condition. The people of the locality
were scolding him. Accused Mouni sought
apology and promised not to repeat such
thing. He was in the habit of drinking and
he committed the offence on her daughter.
In the cross-examination, he has stated that
he knew the accused.

18. PW-6 Shailendra Yadav has stated
the same thing what was stated by PW-5
Lajja Ram.

19. PW-7 Shammi Kapoor has stated
that he was living near the Government
Model School, Etmadpur in a hut where
accused Mouni was also living in a hut
with his family. On 24/25.11.2017 at about
03:30 AM in the mid night, police came on
jeep with Mouni for searching the victim.
Thereafter, the victim was found in the
school and he saw that she was in
unconscious state. Mouni was carrying his
daughter on his shoulder. She was taken to
the hospital, where she was declared dead.
Mouni was in the habit of taking drugs and
wine. Prior to this incident, there was a
complaint that he committed sexual assault
with his daughter about 5-6 months before.
People of the locality scolded him and he
sought apology for the same and promised
not to repeat such kind of act.

20. PW-8 Rahul has stated that he
used to live near the Government Model
School, Etmadpur with his family near the
hut of Mouni. One year before, at about
03:30 AM in the mid night, police jeep
came and got the nearby people awakened.
Mouni was also accompanying the police
who said that his daughter was missing. On
search, the naked body of the daughter of
Mouni was found and taken to the hospital
where she was declared dead. Mouni was
in the habit of taking wine and drugs and
used to sexually assault his daughter.

21. PW-9 Ram Chandra has stated
that on the next day of the death of
deceased, he reached on the spot and
inquest report was prepared by the police
and he signed on the inquest report.

22. PW-10 Constable Sandeep Singh
has stated that on 25.11.2017, he was on
night duty in the police station. At about
03:05 AM, Mouni came and informed that
on 24.11.2017 in the mid night, his
daughter aged about 7 years and his son
aged about 9 years were sleeping with him
on a cot and at 02:30 AM in the night,
when he got awakened, he found that his
daughter is missing. He searched but could
not trace her. He gave an oral information
in the police station. On the basis of which
Crime No. 605 of 2017, under Section 363
IPC
was
registered.
Thereafter,
on
25.11.2017, at about 06:10 AM, he gave
the written report about the rape and
murder of his daughter and on that basis the
offence was modified by adding Sections
302, 201, 376 IPC and section 3⁄4 POCSO
Act.
The
entry
was
made
in
the
corresponding GD.
3-5 All. Mouni Vs. State of U.P. & Anr.
7

23. PW-11 SI Vinod Kumar has
prepared the inquest report.

24. PW-12 Sonu aged about 12 years
is son of accused Mouni who has stated
that his sister was killed about one year
before by his father Mouni, who used to
commit sexual assault and rape with her.
He had drinking habit and used to take
drugs. He could do anything with anyone.
He has however accepted that he did not
see the accused committing the offence.

25. PW-13 Jeete aged about 8 years is
also son of Mouni. He has stated that his
sister was killed by his father in the fateful
night when she was sleeping with him and
his father. In the night she was weeping and
she said that she is feeling pain. His father
took her out saying that he is going to get
medicine for her.

26. PW-14 Constable Harendra Singh
had taken the dead body of the deceased for
postmortem
and
he
submitted
the
postmortem report in the police station.

27. PW-15 Fateh Bahadur Singh
Bhadauria, incharge police station and IO
of the case has stated that during the course
of investigation he also recorded the
statement of some witnesses and on the
basis of collected evidence, the name of
Mouni came into light as accused. He also
submitted charge sheet against him.

28. PW-16 SI Suneel Kumar traced
out the deceased in the Government Model
School with the accused and has stated that
when they were searching the deceased in
the school, the accused went to the left side
and came carrying the deceased on his
shoulder and said that he has traced his
daughter and he found her in the courtyard
of the school. He went there and found that
there was blood on the place. The deceased
was taken to the district hospital where she
was
declared
dead.
Accordingly
the
addition of other offences were made.
During investigation, this fact was brought
into the knowledge that 5-6 months before
also, he committed the same kind of act
with the deceased under the influence of
wine and drugs. The local people got him
scolded. He has also stated that during
investigation, Jeete told him about the
incident and said that in the night the
deceased was weeping and she said that she
was feeling pain in her thigh and chest.
Mouni got her drink water and took her out
for medicine. He has further stated that his
father can do anything as he used to take
wine and drugs. During investigation Sonu
who is also son of the accused has also
stated the similar facts. On the above facts
and circumstances he arrested the accused
Mouni on 27.11.2017. After being arrested,
the accused confessed and at his instance,
certain incriminatory things such as black
Jarkin, jeans and school coat of deceased
from the hedges of school which according
to accused the victim was wearing at the
time of incident, were recovered of which
memo Ext. Ka-20 was prepared and the
recovered articles were sealed. Similarly,
keeping
in
view
the
possibility
of
availability of blood and semen on the
clothes of accused he was wearing at the
time of accident, the clothes of accused,
underwear, shirt, lower and a round neck Tshirt was taken into possession, sealed and
memo Ext. Ka-21 was prepared. After
recording
the
statements
of
relevant
witnesses, he prepared the site map and
proved the same as Ext. Ka-9. He also
prepared
the
papers
prepared
for
postmortem. He also sent the aforesaid
articles and blood samples of the accused
and victim to FSL with other items taken
from spot during investigation such as one
8 INDIAN LAW REPORTS ALLAHABAD SERIES
cigarette, half burnt matchstick, one button,
black thread and red thread, blood swab,
blood/sperm swab from the spot, hair of
deceased found on dead body and bed
sheet, piece of bed sheet for comparison,
swab and hair from the private part of the
accused, Hair recovered from the clothes of
victim found in hedges and from spot, hair
of the accused for comparison. FSL report
is on record and sent items have been
produced and proved by the witness.

29. The submission of learned counsel
for the appellant is that the whole case is
based on circumstantial evidence and there
is no evidence of rape being committed by
the appellant. The first information report
was lodged by the appellant himself and he
was falsely implicated and made accused in
the case. The further submission is that the
age of the victim at the time of incident was
6-7 years and the medical evidence shows
that she died out of asphyxia and definite
opinion with regards to commission of rape
has not been given by the doctor
conducting postmortem. It has been further
submitted that none of the fact witnesses
has seen the incident and they have not
been able to say that the accused caused the
death of deceased or he committed rape.
PW-12 Sonu and PW-13 Jeete who are
sons of the accused are child witnesses but
their intellectual capacity has not been
tested by the learned trial court and their
testimony cannot be relied upon nor
conviction can be based on their testimony.
The learned trial court has committed error
in concluding that the case of the accused is
covered under the rarest of rare cases and,
therefore, the death sentence awarded is not
legally justified.

30. Learned AGA has submitted that
there was sufficient evidence to prove the
charge against the accused-appellant and
the learned trial court finding the evidence
given by the prosecution reliable and
trustworthy
passed
the
finding
of
conviction and considering the fact that the
accused was found to be guilty of
committing rape and murder of his own 7
years old daughter, the death sentence
awarded by the learned trial court is
absolutely justified.

31. From perusal of the first information
report, it appears that the accused appellant
orally informed the police of Police Station
Etmadpur regarding his 7 years old daughter
got missing in the mid night of 24.11.2017
when he, his son and the victim were sleeping
on a cot in his hut. He got awakened at 02:30
AM in the mid night and found the victim
missing. He searched her in the surrounding
but could not get her. The information has
been given at 03:05 AM in the mid night and
the case was registered for the offence under
Section 363 IPC against unknown person. On
his oral report, the police went with him to his
residence and made a search and in
Government Model School building, in the
courtyard, the victim was found in naked
condition with her inner-wear close to her
body. She was taken to the hospital and she
was found to have died. Thereafter, the
accused himself gave a written application to
the SO stating this version and making
allegations that some unknown person has
committed rape and murder. Theefore,
Sections 302, 201, 376 IPC and 5(n) read with
Section 5(m)/6 of the POCSO Act were
added. On the basis of statements recorded by
the investigating officer, under Section 161
CrPC of witnesses, the name of the accused
appellant came in light and he was charge
sheeted for the aforesaid offences.

32. The case of the accused-appellant
as disclosed from his statement under
Section 313 CrPC and in the manner the
3-5 All. Mouni Vs. State of U.P. & Anr.
9
defence has conducted cross-examination
of the prosecution witnesses is of complete
denial and he has alleged that he has been
wrongly and falsely framed in the case and
the whole case is based on false incident.
The accused, however, did not give any
evidence in his defence.

33. PW-1 Kartal lives near the hut of
accused and close to the Government
Model School. He has stated that in the
fateful night, the victim was found in the
government Model School building. She
was unconscious and subsequently found
dead by the doctor. This witness has stated
during cross-examination that he does not
know who committed rape and murder of
the victim. He was sleeping when he was
awakened. He did not see the victim nor he
entered in the exercise of her search. He
has also stated that he cannot say when she
was found in the late mid night. Similar is
the statement of the PW-2 Sarvesh with the
difference that with police the accused also
searched the victim and he saw that victim
was lying in the courtyard of Government
Model School in the naked condition. He
was told by the accused himself that the
victim is lying in the courtyard, then he saw
her. The accused did not call the police and
said that the victim has been traced. In the
cross-examination, he has stated that he
cannot say who committed rape and killed
the victim. PW-3 Johny is only scriber of
the written report and he did not see the
incident nor he has any knowledge about it.
PW-5 has stated that he cannot say how the
victim died and whether the rape was
committed on her or not. He has stated that
a year before, he had seen the accused
committing sexual assault on the victim
who was 6-7 years old. Similar is the
statement of PW-6 Shailendra Yadav and
both these witnesses have stated that
because of this incident, the crowd
collected in front of the house of the
accused and all scolded him. PW-7
Shammi Kapoor has also stated in similar
manner but he has stated that he did not see
the accused doing sexual assault on his
daughter and he was told by others. PW-8
Rahul has stated that the accused was edict
of wine and drugs and under that affect, he
used to commit sexual assault with the
victim. Thus, all these witnesses have
either stated about the recovery of dead
body or about the fact that the accused was
in the habit of committing sexual assault on
victim and when seen and scolded by
people of the locality, he apologized before
them. This fact got further affirmed by the
statement of PW-12 Sonu who is son of the
accused and has also stated that his sister
was killed by the accused who used to
sexually assault her. He was edict of wine
and drugs and he can do anything with
anyone. We find that all the fact witnesses
except PW-13 Jeete have stated about
earlier conduct of the accused who was in
the habit of taking wine and also in the
habit of committing sexual assault with the
victim and he was seen by the persons of
that locality. Thus, all these witnesses have
stated the background leading to the
commission of offence and the sexual
perversion of the accused which is one
circumstance indicating towards guilt.

34. The statement of PW-13 Jeete has
to be seen in the backdrop of the statement
given by other witnesses. PW-13 has stated
that he was with his father and victim in the
fateful night. The victim was sleeping with
him and his father. He got awakened in the
night as the victim was weeping and she
told that she is in pain. Whereupon his
father took her out of the hut saying that he
is going to take medicine for her and
thereafter, she was not seen alive and her
dead body was recovered. This also goes to
10 INDIAN LAW REPORTS ALLAHABAD SERIES
show that the son of the accused himself
has proved the fact that he saw his father
taking away the victim from the house and
prior to that she was weeping and
complaining that she is feeling pain. Thus,
it is clear that the accused was the person
who was last seen with the deceased taking
her away out from the house.

35. Learned counsel for appellant has
submitted that PW-12 Sonu has also stated
that his father never took wine and the
drugs before him. This is not relevant. The
submission of the learned counsel is that all
these witnesses have not stated with
conformity regarding the involvement of
the accused in the crime. As regards the
statement PW-13 Jeete, it has been
submitted that he is 8-9 years old and he
did not possess that intellectual capacity to
give answer to the questions put to him. His
intellectual capacity was not tested by the
learned trial court and it was not legal on
the part of the court to place reliance on his
evidence.

36. It is true that there is no evidence
of any witness who might have seen the
accused committing rape and causing death
of the victim and the prosecution case is
based on circumstantial evidence of "last
seen together" and only PW-13 has been
examined to prove this fact. The statement
of PW-13 Jeete is significant as an
evidence of the circumstance of last seen.
The last seen evidence is very important
circumstantial evidence and if proved and
found trustworthy, it can singularly lead to
the inference of guilt. In State of
Rajasthan v Kheraj Ram, (2003) 8 SCC
224, Vilas Pandurang Patil v State of
Maharashtra, (2004) 6 SCC 158, Arun
Bhanudas
Pawar
v
State
of
Maharashtra, 2008 (61) ACC 32 (SC)
Vithal Eknath Adlinge v State of
Maharashtra, AIR 2009 SC 2067 and
Vijay Kumar v State of Rajasthan,
(2014) 3 SCC 412, the Supreme Court has
laid down that circumstantial evidence, in
order to be relied on, must satisfy the
following tests :

1. Circumstances from which an
inference of guilt is sought to be drawn
must be cogently and firmly established.

2. Those circumstances must be
of a definite tendency unerringly pointing
towards guilt of the accused.

3.
The
circumstances,
taken
cumulatively, should form a chain so
complete that there is no escape from
conclusion
that
within
all
human
probability the crime was committed by the
accused and none else.

4. The circumstantial evidence in
order to sustain conviction must be
complete and incapable of explanation of
any other hypothesis than that of the guilt
of the accused but should be inconsistent
with his innocence- in other words, the
circumstances
should
exclude
every
possible hypothesis except the one to be
proved.

37. In Bhimsingh v State of
Uttarakhand, (2015) 4 SCC 281, it was
laid down that when the conviction is to be
based on circumstantial evidence solely,
then there should not be any snap in the
chain of circumstances. If there is a snap in
the chain, the accused in entitled to benefit
of doubt. If some of the circumstances in
the chain can be explained by any other
reasonable
hypothesis,
then
also
the
accused is entitled to the benefit of doubt.
But in assessing the evidence, imaginary
3-5 All. Mouni Vs. State of U.P. & Anr.
11
possibilities have no place. The court
considers ordinary human probabilities.

38. In Rohtas Kumar v State of
Haryana, 2013 (82) ACC 401 (SC),
Prithipal Singh v State of Punjab, (2012)
1 SCC 10, it has been further laid down
that The doctrine of "last seen together"
shifts the burden of proof on the accused
requiring him to explain how the incident
had occurred. Failure on the part of the
accused to furnish any explanation in this
regard would give rise to a very strong
presumption against him.

39. Further, in Ashok v State of
Maharashtra, (2015) 4 SCC 393, it was
explained by the Supreme Court that initial
burden of proof is on prosecution to adduce
sufficient evidence pointing towards guilt of
accused. However, in case it is established
that accused was last seen together with the
deceased, prosecution is exempted to prove
exact happening of incident as accused
himself would have special knowledge of
incident and thus would have burden of proof
as per Section 106, Evidence Act. But last
seen together itself is not conclusive proof but
along with other circumstances surrounding
the incident like relations between accused
and deceased, enmity between them, previous
history of hostility, recovery of weapon from
accused, etc. non-explanation of death of
deceased, etc. may lead to a presumption of
guilt of accused.

40. In State of Goa v Pandurang
Mohite, AIR 2009 SC 1066, State of UP v
Satish, 2005 (3) SCC 114 and Sardar
Khan v State of Karnataka, (2004) 2
SCC 442, it has been remarked that
circumstances of "last seen together" do not
by themselves and necessarily lead to the
inference
that
it
was
accused
who
committed the crime. There must be
something more establishing connectivity
between the accused and the crime. The
time gap between last seen alive and the
recovery of dead body must be so small
that the possibility of any person other than
the accused being the author of the crime
becomes impossible.

41. In Niranjan Panja v State of
WB, (2010) 6 SCC 525 and State of UP v
Satish, (2005) 3 SCC 114, it has been
further affirmed by the Supreme Court that
the last seen theory comes into play where
the time-gap between the point of time
when the accused and the deceased were
seen last alive and when the deceased is
found dead is so small that possibility of
any person other than the accused being the
author of the crime becomes impossible. It
would be difficult in some cases to
positively establish that the deceased was
last seen with the accused when there is a
long gap and possibility of other persons
coming in between exists.

42. Recently, in Ravi v State of
Karnataka, AIR 2018 SC 2744, reversing
the conviction based on "last seen together"
where there was a time gap of four days
between last seen and recovery of dead
body and as per postmortem report the
death must have occurred 30 hours ago, the
Supreme Court held that the time gap was
considerably large and no corroboration
was forthcoming, and therefore, in absence
of any other circumstance which could
connect the accused with crime, reasonable
doubt as to involvement of accused is
created and in such situation, the burden
would not shift under section 106 of the
Evidence Act. Following the judgment in
Mohibur Rahman vs State of Assam,
(2002) 6 SCC 715 and Malleshappa vs
State of Karnataka, (2007) 13 SCC 399,
the court held:
12 INDIAN LAW REPORTS ALLAHABAD SERIES

"'Last seen together' is certainly a
strong piece of circumstantial evidence
against an accused. However, as it has
been held in numerous pronouncements of
this Court, the time lag between the
occurrence of the death and when the
accused was last seen in the company of
the deceased has to be reasonably close to
permit an inference of guilt to be drawn.
When
the
time
lag
is
considerably
large,....., it would be safer for the court to
look for corroboration."

43. In this instant case, PW-13 Jeete
is the son of the accused and the FIR
version is that he was sleeping on the same
cot with the victim and accused. The
incident took place in the post midnight. He
was only 8-9 years in age and therefore, the
presence of the witness is very natural at
the time of last seen. The victim was
weeping and she said that she is feeling
pain and the accused took her out saying
that he is taking her to get medicine. In the
same night, her dead body was recovered
from the courtyard of the school which
situates close to the hut. Seemingly, there is
no delay or time-gap between last seen and
the discovery of the dead body. The
witness is of very tender age and is own
son of the accused-appellant and there is no
reason to even think that he would give
false or even tutored evidence. Therefore,
he has been rightly relied by the learned
trial court.

44. So far as not testing the
intellectual capacity of the PW-13 is
concerned,
this
procedure
has
been
provided to determine whether oath can be
administered or not. It appears from his
statement that learned trial court has
administered oath to him and therefore, it
can be inferred that the learned trial court
must have found him capable of giving
intellectual answers to the questions put to
him. Merely because the learned trial court
has not entered into preliminary inquiry to
test the competence of witness, it cannot be
said that the witness was incapable of
understanding the nature of questions put to
him and was not capable to give rational
reply to them. Section 118 of the Evidence
Act provides the need for a witness to be
competent and the courts may enter into an
inquiry to determine competency of a
witness if it is required so that oath can be
administered. In Rameshwar v State of
Rajasthan,
AIR
1952
SC
54,
on
preliminary inquiry, the trial court did not
find the child to be competent to be
testified, even then the court proceeded to
examine the child without administering
oath. The Supreme Court held that even
then the evidence of the child can be relied
upon.

45. In State of Rajasthan v
Vijayram, 1968 Cr.LJ 270, it has been
held that the child witness despite being not
subjected to preliminary examination and
despite no finding recorded about his
competency by the trial court, if he is found
to have given rational answers, his
evidence is admissible.