# Prem Naresh v. State of U.P

- **Citation:** (2024) 7 ILRA 747
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-23
- **Case number:** Capital Cases No. 7 of 2023
- **Bench:** Arvind Singh Sangwan, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-naresh-v-state-of-u-p-52282
- **Pages:** 32

## Headnote

(A) Criminal Law - Criminal Procedure
Code,1973 - Sections 161, 164 & 313 -
Indian Penal Code, 1860 - Section 376-B
-
Prevention
of
Child
from
Sexual
Offences Act, 2012 - Sections 5 & 6: -
Conviction and Sentenced - Capital sentence -
reference and appeal - offence of rape with a
three years old girl child -- arrest - recovery -
forensic
examination
-
charge-sheet
-
Appreciation of evidence - Court finds that,
trial court has rightly recorded the finding
holding the accused guilty of offence - Hence,
the conviction under section 376-AB of IPC
r/w 5/6 POCSO Act, are upheld - However, it
is not a 'rarest of rare' case where death
penalty could be awarded and Trial court has
not recorded any mitigating circumstances in
which only death penalty should be awarded
to the accused - held, sentence of capital
punishment be commuted to life imprisonment
as the trial court while awarding death
sentence has not recorded any mitigating
circumstances,
though
the
accused
has
committed the gravest offence - therefore,
capital punishment awarded to the appellant
should be commuted to life imprisonment for
a fixed term of 25 years without any
remission
-
Appeal
qua
conviction
is
dismissed, however, Appeal qua sentence is
partly allowed - sentence is modified -
directions issued accordingly. (Para -33, 34,
36, 37, 38)

Appeal against conviction Dismissed but,
against punishment partly allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,852 of 107,402. This is a partial read: ask again with offset=39852 for what follows._

7 All. Prem Naresh Vs. State of U.P.
747
of 2012 (Union of India through
C.B.I. v. Sanjaya Dikshit and ors.) is
hereby
quashed
and
the
discharge
application filed by the revisionist is
allowed only on the ground that there was
no valid sanction for prosecuting the
revisionist.

33. I have not remanded the matter
in view of the fact that I had called for the
entire trial Court record by means of an
order dated 16.05.2024 and 21.05.2024 and
there is no material to be re-appreciated
apart from the findings recorded above for
which the matter should be remanded.

34. The original record be
transmitted back to the Court concerned at
the earliest.

35. This Court records its
appreciation for the assistance provided by
Ms.
Rajshree
Lakshmi,
Research
Associate/Law Clerk in deciding the case.
----------
(2024) 7 ILRA 747
CRIMINAL JURISDICTION
ORIGINAL SIDE
DATED: ALLAHABAD 23.07.2024

BEFORE

THE HON'BLE ARVIND SINGH SANGWAN, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Capital Cases No. 7 of 2023

Prem Naresh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Rajiv Lochan Shukla

Counsel for the Respondent:
A.G.A.
(A) Criminal Law - Criminal Procedure
Code,1973 - Sections 161, 164 & 313 -
Indian Penal Code, 1860 - Section 376-B
-
Prevention
of
Child
from
Sexual
Offences Act, 2012 - Sections 5 & 6: -
Conviction and Sentenced - Capital sentence -
reference and appeal - offence of rape with a
three years old girl child -- arrest - recovery -
forensic
examination
-
charge-sheet
-
Appreciation of evidence - Court finds that,
trial court has rightly recorded the finding
holding the accused guilty of offence - Hence,
the conviction under section 376-AB of IPC
r/w 5/6 POCSO Act, are upheld - However, it
is not a 'rarest of rare' case where death
penalty could be awarded and Trial court has
not recorded any mitigating circumstances in
which only death penalty should be awarded
to the accused - held, sentence of capital
punishment be commuted to life imprisonment
as the trial court while awarding death
sentence has not recorded any mitigating
circumstances,
though
the
accused
has
committed the gravest offence - therefore,
capital punishment awarded to the appellant
should be commuted to life imprisonment for
a fixed term of 25 years without any
remission
-
Appeal
qua
conviction
is
dismissed, however, Appeal qua sentence is
partly allowed - sentence is modified -
directions issued accordingly. (Para -33, 34,
36, 37, 38)

Appeal against conviction Dismissed but,
against punishment partly allowed. (E-11)

List of Cases cited:

1. Dharma Deo Yadav Vs St. of U.P. (2014 vol. 3
Apex Court Judgments (SC) 125),

2. Mukesh & anr. Vs St. of NCT of Delhi (2017
AIR (SC) 2161),

3. Ravi S/o Ashok Ghumare Vs St. of Mah.
(2019 AIR SC 5170),

4. Manoj & ors. Vs St. of M.P. (2022 SCC Online
SC 677),

5. Navas @ Mulanavas Vs St. of Kerala (2024
SCC Online SC 315),
748 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Bachchan Singh Vs St. of Pun. (AIR 1980 SC
898),

7. Ravinder Singh Vs St. Govt. of NCT of Delhi
(2024 2 SCC 323),

8. Sunder Vs St. by Inspector of Police (2023
SCC Online SC 310),

9. Madan Vs St. of U.P. (2023 SCC Online SC
1473),

10. Shiva Kumar Vs St. of Karn. (2023 9 SCC
817),

11. Irappa Siddappa Murgannavar Vs St. of
Karn. (2022 2 SCC 801),

12. X Vs St. of Mah. (2019 7 SCC 1),

13. Raju Jagdish Paswan Vs St. of Mah. (2019
16 SCC 380),

14. Swapan Kumar Jha Vs St. of Jharkhand &
anr. (2019 13 SCC 579),

15. Haru Ghosh Vs St. of W. B. (2009 15 SCC
551),

16. Mulla & Another Vs St. of U.P. (2010 3 SCC
508),

17. Ramraj Vs St. of Chhatisgarh (2010 1 SCC
573),

18. Swamy Shraddananda Vs St. of Karn. (2008
13 SCC 767).

(Delivered by Hon'ble Arvind Singh
Sangwan, J.)

1. Reference No. 06 of 2023 has been
made by the Court of Special Judge
(POCSO Act), Auraiya for confirmation of
capital punishment awarded to appellant
Prem Naresh in Special Sessions Trial No.
1276 of 2021. The Jail Appeal being
Capital Case No.7 of 2023 has been filed
by the appellant challenging the judgment
of conviction dated 09.02.2023 holding the
appellant guilty of offence under Section
376 AB of IPC and Section 5/6 of POCSO
Act and the order of sentence dated
14.02.2023, vide which the appellant was
awarded death sentence to be hanged till
death with fine of Rs.5,00,000/- (five lacs).
In the even of non payment of fine,
additional rigorous imprisonment for one
year. It is directed that 50% of the payment
of fine will be payable to the victim.

2. The Reference and Appeal were
admitted. The Trial Court's record is
received and paper books are ready.

3. Heard Sri Rajiv Lochan Shukla,
learned Amicus Curiae assisted by Sri
Sarvesh Kumar Dubey, Advocate for the
appellant, Sri Saurabh Pathak, learned
counsel for victim/informant and Sri
Patanjali Mishra, learned A.G.A. for the
State.

4. With the assistance of learned
counsel for the parties, the entire evidence
is re-scrutinized and re-appreciated.

5. Facts of the case as per the
informant/PW-1 who is the maternal
grandfather of the victim (name not
disclosed and referred as 'Victim S') are as
under :

"सेवा में, श्रीमान प्रभारी ननरीक्षक महोदय

कोतवाली नवधूना जनपद औरैया।

महोदय ननवेदन है नक प्रार्थी नमर्थलेख पुत्र
कठोरीलाल शंखवार (कोरी) ननवासी ग्राम रतनपुर बन्यरा र्थाना
नवधूना जनपद औरेया का ननवासी है आज नदनांक 20.10.2021
को समय करीब 2.30 बजे नदन मेरी नानतन S...... उम्र करीब
03 वर्ष अपने दरवाजे पर खेल रही र्थी मेरे गांव के ननवासी नशवप्रेम
का साला प्रेमनरेश पुत्र भजनलाल शंखवार (कोरी) ननवासी ग्राम
धनवाली र्थाना नवघूना जनपद औरैया में मेरी नानतन S......
उपरोक्त को नबस्कुट नखलाए जाने का लालच देकर ले गया कुछ देर
बाद मेरी नानतन S...... की रोने की आवाज सुनकर मैं व मेरा पुत्र
7 All. Prem Naresh Vs. State of U.P.
749
करन नसंह भागकर गये तो मेरी नानतन नशवप्रेम के कमरे के अन्दर
ननगन अवस्र्था में पडी र्थी हम लोगो के देखकर प्रेमनरेश मौके से
भाग गया मेरी नानतन के सार्थ प्रेमनरेश उपरोक्त ने बलात्कार नकया है
मैं अपनी नानतन को लेकर र्थाने पर आया ह ं मेरी नानतन के पेशाब के
रास्ते से खून भी ननकला है।

श्रीमान जी से ननवेदन है ररपोटष नलखकर कानूनी
कायषवाही करने की कृपा करें।
 ह० नमर्थलेश कुमार

 प्रार्थी

लेखक

नमर्थलेश पुत्र कठोरीलाल

करन नसंह

ननवासी रतनपुर वन्र्थरा

पुत्र नमर्थलेश ननवासी र्थाना नवधूना नजला औरैया

रतनपुर वन्र्थरा

789784343

र्थाना नवधूना, नजला औरैया

नदनांक 20.10.2021"

8126547379 "

6. On the basis of the written
complaint given by Mithalesh (PW-1),
Chick F.I.R. was registered as Case Crime
No. 516 of 2021 on 20.10.2021 at 17.53 hrs
under Section 376 AB of IPC and Section
5/6 of Prevention of Child from Sexual
Offences Act, 2012 (hereinafter referred to
as 'POCSO Act')

7. The F.I.R. was registered against
the appellant-Prem Naresh aged about 29
years.

8. The victim was sent for medical
examination and as per the Medico Legal
Examination conducted by Dr. Seema
Gupta (PW-2), the injuries found on the
body of the victim as reported in the
Medico Legal Report are as under :

"Vaginal tear of size 3 x 3 cm at
6 O clock position involvement of anal
sphincter and anal canal at upper side
fresh bleeding present. Clotted blood and
fresh blood present over perineal region.

Hymen torn.

Perineum tear.

Blood clot present IV degree
perineal tear 3 x 3 cm.

Vagina, valva anal sphinceter
and anus tear fresh bleeding present"

During medical examination of the
victim, Dr. Seema Gupta (PW-2) reported
as under :

"Injury present at vagina valva
anus vaginal tear present with anal
sphinter tear bleeding present from anus
and vagina. This may be due to sexual
assault."

On
completing
the
medical
examination, PW-2 gave her final opinion
which is as under :

"A case of sexual assault vaginal
and anus tear, bleeding present. This may
be due to sexual assault."

9. Thereafter, the police got recorded
the statement of mother of the victim under
Section 164 of Cr.P.C. (Ex.Ka-4) which
reads as under :

 "ब्यान मेरा नाम सुमन देवी है। मेरी उम्र 27 साल है।
मैं पढी-नलखी नहीं ह ं। Dt 20.10.2021 को सुबह 11 बजे
मेरी बेटी S...... खेलने के नलए ननकल गयी र्थी। जब 2-3 घण्टे
हो गये तो उसके भाई-बहन आ गये तो उन्होने पूछा नक मम्मी नबट्टी
कहां है। निर सब लोग ढूढंने लगे। हमारे घर के बराबर में जो घर है
वहां देखा तो एक अंदर कमरे में कुण्डी लगी र्थी। बेटी के बाबा और
चाचा गये और धक्का मारा तो दरवाजा खुला उसमें मेरी बेटी नमली
और वहां प्रेमनरेश नमला। जब बेटी नमली तो उसके ऊपर की
बननयान नहीं र्थी,गले में चांदी का हाय पहने र्थी वह भी नहीं नमली,
नीचे के कपडे खून में सने र्थे और उसकी पेशाब वाली जगह से खून
ननकल रहा र्था। प्रेम नरेश जब नमला तब वह अपना कपडा बदल
रहा र्था। मुझे और कुछ नहीं कहना है।"

10. The statement of victim-S under
Section 164 Cr.P.C. was also recorded on
750 INDIAN LAW REPORTS ALLAHABAD SERIES
the same date i.e. on 20.11.2021 which
reads as under :

"ब्यान-प्र० (1) तुम्हारा नाम क्या है?

उ० S......

प्र० (2) सच बोलना चानहये या झूठ?

उ०- सच्ची

प्र० (3) क्या हुआ र्था तुम्हारे सार्थ?

उ० बोरी में डाल नलया र्था। पकड नलया र्था। वहां पर
ले गये र्थे। कुण्डी लगा ली र्थी। आंखे बंद कर दी र्थी। गाल नोच रहे
र्थे। गला बांध नलया र्था। बाबा को बुलाय मैंने। मुंह नोच रहे र्थे। मुंह
में हार्थ रख कर दबाया ( पीनडता ने इशारा करके बताया)। पीनडता
ने नपशाब की जगह पे इशारा करके बताया नक यहां पर मारा र्था।
उलटा नलटाया र्था। बोरी पे नलटाया।"

11. The police arrested the accused
and on his pointing out effected the
recovery of blue coloured underwear and
army coloured lower concealed in a plastic
bag. Thereafter, the Investigating Officer
sent the vaginal swab which was handed to
him by PW-2 along with other articles to
Forensic Science Laboratory for DNA
examination.

12. During the investigation,
statements of other prosecution witness
under Section 161 Cr.P.C. were also
recorded.
On
completion
of
the
investigation, charge-sheet against accusedappellant, Prem Naresh, was submitted
under Section 376 AB of IPC read with
Section 5/6 of the POCSO Act. A copy of
the charge-sheet was supplied to the
accused. Later on, the Trial Court framed
the charges under the aforesaid sections
which were read over to the accused. The
accused did not plead guilty and claimed
trial. The accused, as per the request, was
provided assistance with a Assistant Legal
Defence Counsel by the Trial Court.

13. In the prosecution evidence,
Mithalesh
Kumar
(PW-1)/Informant
appeared and stated on the line of
information given in the complaint forming
basis of the F.I.R. This witness stated that
at about 2.00 PM, he was present in his
house and his maternal grandson and
granddaughter, Yash and Sakshi, returned
from the school and enquired about the
victim. Finding that she is missing, they
started searching for her, for about one and
a half hours. In the mean time, they heard
cries of the victim from the abutting house.
When they entered the house by breaking
the door, the saw that the victim was lying
on a plastic bag in a room where fodder
was stored. Accused-Prem Naresh was also
sitting there and on seeing him ran away
from the spot. The victim was in a very bad
condition and was not in her senses. She
was bleeding from her vagina. The abutting
house was of Shiv Prem who is brother-inlaw of the accused, and accused used to
visit. The victim knew the accused as
maternal uncle of Himanshu (Mama of
Himanshu). On the pretext of giving her
biscuits, the accused took her in the fodder
room and caused injuries on her sexual
organs.
Thereafter,
PW-1
gave
the
complaint, which was scribed by his sonKaran Singh, to the police which is Ex.Ka1. Thereafter, the police took the victim to
Government Hospital, Auraiya for medical
examination.
Considering
the
poor
condition of the victim, she was referred to
Saifai
Hospital
where
she
remained
admitted for one night and from there she
was referred to S.G.P.G.I., Lucknow where
she remained admitted for 10-12 days.

14. This witness proved the birth
certificate of the victim, according to
which, her date of birth is 3.10.2018. PW-1
stated
that
the
victim
has
already
undergone one operation and is still under
treatment and the Doctor has advised for
one more operation. In cross examination,
7 All. Prem Naresh Vs. State of U.P.
751
this witness stated that at the time of
incident, the victim was wearing underwear
and banyan. He stated that in the complaint,
he has not mentioned about breaking open
the door and has not shown broken latch to
the Investigating Officer. He further stated
that he has normal relationship with his
neighbour-Shiv Prem and both families
frequently visit each other.

15. In further cross examination, he
stated that when the accused was running
away from the spot, he was caught hold by
the villagers. He was wearing a green
coloured shirt and white coloured pant. The
shirt of the accused was blood-stained. The
villagers gave beatings to the accused. A
suggestion was given to this witness that
due to enmity with his neighbour-Shiv
Prem, a false case of rape was planted on
the accused. It was also suggested that
when his daughter-in-law, Suman (mother
of the victim) had taken the victim for
answering the call of the nature, she slipped
and suffered injury on her sexual organs
from a peg installed for tying the cattle.

16. Dr. Seema Gupta, Medical
Officer, Government Hospital, Auraiya
(PW-2) stated that on 20.10.2021, the
victim was brought for her medical
examination
along
with
her
family
members who had given the following
information which is as under :

"नदनांक 20.10.2021 समय दोपहर 1.30
गली में खेल रही र्थी S.........। लगभग 2 बजे दोपहर में अनार
कली ने बहोसी हालत में खून से लस्तपत S......... को आशा
को नदया उसने बताया नक यह वरोसी में डली र्थी। मुझे S.........
मुझे ताऊ भूस में उठाकर ले गया र्था। नपसाब के रास्ते से खून आ
रहा है। और ददष हो रहा है। पीनडता ने जो बताया वही नलखा

करन नसंह (चाचा)
आशादेवी(दादी)
नमर्थलेश कुमार (बाबा)"

This witness further stated as under
:

"पीनडता की योनी का रास्ता लैनिन के रास्ते तक
िटा हुआ र्था। चोट से ताजा खून आ रहा र्था। पीनडता गुप्तागों पर
तर्था चारों तरि ताजा जमा हुआ खून र्था। पीनडता की योनन का
स्त्राव का स्लाइड बनाकर शुक्राणु परीक्षण हेतु पैर्थालाजी भेजा र्था।
पीनडता की योनन का मुख और लैनिन के रास्ते और छाती का स्वाब
बनाकर डी०एन०ए० परीक्षण हेतु नवनध नवज्ञान प्रयोगशाला
नभजवाया र्था। पीनडता के रक्त का नमूना लेकर नवनध नवज्ञान
प्रयोगशाला नभजवाया र्था। पीनडता के योनन तर्था लैनिन के रास्ते की
चोटे पीनडता के सार्थ लैनगंक हमले के कारण आयी र्थी। पीनडता के
पररवारीजनों के अनुसार पीनडता की उम्र तीन वर्ष र्थी। नदनांक
27.11.2021 को मेरे द्वारा पीनडता की पूरक नचनकत्सीय आख्या
तैयार की गयी र्थी नजसके अनुसार पीनडता के गुप्तांगों पर जो चोटे
आयी र्थी वह लैनगंक हमले के कारण आयी र्थी। पीनडता की हालत
ज्यादा खराब होने की वजह से पीनडता को प्रार्थनमक उपचार देकर
108 ऐम्बूलेन्स द्वारा सैिई भेजा गया र्था। पूरब नचनकत्सीय आख्या
पत्रावली में कागज संख्या 11क/1 व 11क/2के रूप में संलग्र है।
जो मेरे द्वारा तैयार की गयी है। मेरे द्वारा हस्ताक्षररत है। नजसकी मैं
पहचान व पुनि करती ह ं। नजस पर प्रदशष क 2 डाला गया।पत्रावली
में शानमल कागज संख्या 9क/1 लगायत 9क/8 पीनडता की
नचनकत्सीय आख्या है। जो मेरे द्वारा तैयार की गयी है मेरे द्वारा
हस्ताक्षररत है नजसकी मैं पहचान पुनि करती ह ं। नजस पर प्रदशष क 3
डाला गया। "

This witness proved the MLC Report
as Ex.Ka-2 & 3. She has also made a sketch
regarding injuries sustained by victim as
Ex.Ka-3. In cross examination, this witness
stated about clothes worn by the victim at
the time of the examination. On a specific
question, the following reply was given :

"प्रश्न- पीनडता की उम्र पीनडता के माता-नपता के
बताने पर आपने नलखी र्थी

उत्तर- जी,मैंने पीनडता की उम्र माता-नपता के बताने
पर नाम पता के सार्थ कालम नं०-4 में नलखी र्थी। पीनडता की उम्र
जन्म प्रमाण पत्र के आधार पर नहीं नलखी र्थी, क्योंनक वो जन्म
प्रमाण पत्र लेकर नहीं आये र्थे। पीनडता के गुप्तांग पर ताजा खून आ
भी रहा र्था, और कुछ जमा हुआ र्था। पीनडता के नुकीले चीज पर
752 INDIAN LAW REPORTS ALLAHABAD SERIES
नगरने की बात नहीं बताई र्थी। इसनलये मैं नहीं बता सकती,नक नगरने
से चोट आ सकती है या नहीं। यनद कोई नुकीली चीज पर नगरे तो
उसके गुप्तांगो में चोट आयेगी लेनकन गुप्तांग और लेनिन का रास्ता
एक सार्थ नहीं िटेगा।"

17. Suman (PW-3), the mother of
the victim, also deposed on the line of
PW-1 and stated that the victim knew the
accused as uncle of Himanshu (Mama of
Himanshu) and when they broke open the
door, she saw that her daughter, VictimS, is lying naked on a plastic bag in
fodder room and accused Prem Naresh
was also in the room and, thereafter, he
ran away.

This witness also stated that when she
asked from the victim, she stated that
accused took her on the pretext of giving
biscuits and by taking her in fodder room,
he caused injuries on her sexual organs by
tying her hands. This witness also stated
that her statement as well as the statement
of the victim was recorded by the
Magistrate under Section 164 of Cr.P.C.
which she proved as Ex.Ka-4.

In cross examination, she stated that
many people gathered at the place of
occurrence and with regard to catching
hold of the accused she stated as under :

"नजस समय घटना स्र्थल वाले कमरे के नकबाड
तोडे जा रहे र्थे उस समय भीड में करीब दो सौ लोग वही खडे र्थे।
जैसे ही दरवाजा टूटा मुनजजम भागा वैसे ही दरवाजे पर पकड
नलया। उस समय वह लोअर व बननयान पहने हुए र्था। उस कमरें
में दो दरवाजे र्थे। ये दोनो दरवाजे मैंने देखे र्थे। कमरा के आगे
बरामदा बना है। उसमें आगे भैस बंधी र्थी, अलमारी में कपडे रखे
र्थे, बरोसी बनी हुई र्थी। इसके अलावा मैंने और कुछ नहीं देखा।
"

She denied a suggestion that on
account of some enmity with the sister of
the accused, a false case was registered.

Victim S appeared as PW-4 and her
statement read as under :

"ब्यान धारा 164 सी०आर०पी०सी० न्यायालय
की अनुमनत से खोला गया और उसमें रखा ब्यान पीनडता पीनडता
की मां को नदखाया और पढकर सुनाया गया तो पीनडता की मां ने
कहा नक यह वही ब्यान है जो पीनडता के बताने पर मनजस्िेट साहब
ने मेरे समक्ष नलखा र्था, नजस पर पीनडता की िोटो चस्पा है। नजसकी
मैं पहचान व पुनि करती ह ं। ब्यान को पत्रावली में कागज संख्या
29क/1के रूप में संलग्न नकया गया नजस पर प्रदशष क 4 डाला
गया। ब्यान U/S 164 CRPC प्रदशष क-4 को मुख्य परीक्षा के
रूप में पढा जाय बचाव पक्ष के अनधवक्ता को नजरह की अनुमनत दी
गयी।

X
X
Cross
by
Defence.

मुझे खाने में टॉिी अच्छी लगती है। नहमांशू के मामा
ने मुझे टॉिी दी र्थी।

To Court

हिम ांशू के म म ने मुझे पकड हिय थ और आांख
पर पट्टी ब ाँध दी और नोंच हिय थ और पीहडत ने ि थ के इश रे
से बत य हक पेश ब की जगि चोट पि ाँच ई थी।"

18. Parveen Kumar (PW-5) stated that
on receiving complaint, he recorded G.D.
No.44 as Ex.Ka-5 and Chick F.I.R. as
Ex.Ka-6. In cross examination, this witness
was put a question whether he had seen the
watch at the time when G.D. and F.I.R. was
registered. This witness stated that since the
time was visible on the computer screen, it
was recorded from there.

19. Rajesh Kumar Singh (PW-6), the
first Investigating Officer, stated that on
20.10.2021, he received the information on
which F.I.R. was registered, statements of
victim, her mother and one Renu Devi were
recorded in CD. He prepared the naksha
nazri which is Ex.Ka-7. He further stated
that the forensic team reached at the spot
and recovered one packet, one red coloured
doll made of cloth, one pair of hawai
slippers, one torn piece of masala and 1012 hairs and by sealing these articles, the
7 All. Prem Naresh Vs. State of U.P.
753
same were handed over to him. Thereafter,
vide CD No. 2 dated 20.10.2021, the
accused was arrested by S.H.O. Shashi
Bhushan
Mishra
and
the
confession
statement of accused was recorded in CD
(Ex.Ka-8).
Vide
CD
No.3
dated
27.10.2021, medical report of the victim
and, for DNA test, blood samples of victim
and accused were taken and sent to
Forensic Science Laboratory, Agra.

In his cross examination, the witness
stated that on receiving the chik FIR on
20.10.2021, he had gone to village
Ratanpur but accused was not arrested in
his presence and was arrested on next day
from near a canal by S.H.O. and other
police officials. This witness stated that at
the spot, inside the fodder room no rapper
of toffee or biscuit was found. There was a
wooden door in the room and there was
only one door which was not broken. He
had not seen the broken latch. This witness
also stated about the recovery effected by
the Forensic Team and stated that during
his examination, he has not mentioned
about the bloodstaines on the plastic bag.
This witness further stated about the
recovery of an army coloured lower and
blue coloured underwear from the house of
the accused which was 15 km away from
the place of occurrence. A suggestion was
given to this witness that he has prepared a
wrong site plan and has conducted the
investigation while sitting in the police
station, which he denied.

20. Mohd. Shakir ( PW-7), the second
Investigating Officer, stated that after the
transfer of previous investigating officer,
he collected the date of birth certificate of
the victim showing her date of birth as
3.10.2018. Thereafter, application was
given before the Court for extending the
remand of the accused. Vide C.D. dated
20.11.2021, the statement of the victim and
her mother-Suman was recorded by the
Court under Section 164 of Cr.P.C. and he
also recorded the statement of Panchayat
Officer who issued the date of birth
certificate. Thereafter, on 27.11.2021, on
receiving the medical report from King
George's Medical University, Lucknow, a
supplementary report was recorded in C.D14 dated 28.11.2021 and statement of Dr.
Seema
Gupta
was
also
recorded.
Thereafter, the charge sheet under Section
376 AB of IPC and Section 5/6 POCSO
Act was submitted against accused-Prem
Naresh which is exhibited Ka-9.

In cross examination, this witness
stated that the informant did not tell him
about breaking open the door and he has
not seen plastic bag from where the victim
was found in naked condition. This witness
also denied a suggestion that he has
prepared the document while sitting in the
police station and has recorded false
statement under Section 161 Cr.P.C.

21. Thereafter, the statement of
accused under Section 313 Cr.P.C. was
recorded and all incriminating evidence
was put to him. Question No.3 and its reply
read as under : -

**iz'u & vkius vfHk;kstu lk{kh
la[;k&2 Mk0 lhek xqIrk] ftyk fpfdRlky;
vkSjS;k ds c;ku lqusA ;g lk{kh ihfM+rk dk
fpfdRlh; ijh{k.k djus okyh MkDVj gS rFkk bl
lk{kh us i=koyh esa 'kkfey dkxt la0& 11d@1
Rk 11d@2 ihfM+rk dh iwjd fpfdRlh; vk[;k
izn'kZ d&2 ,oa i=koyh esa 'kkfey dkxt la0
9d@1 yxk;r 9d@8 ihfM+rk dh fpfdRlh;
vk[;k izn'kZ d&3 dks vius ys[k o gLrk{kj esa
gksuk lkfcr fd;k gSA bl lEcU/k esa vkidks D;k
dguk gS \

mRrj%& xyr gSA ihfM+rk ds pksV fxj
tkus dh ctg ls vkbZ FkhA**
754 INDIAN LAW REPORTS ALLAHABAD SERIES

In reply to the question no.11
regarding the explanation by the accused,
the accused replied that he is innocent and
how the victim has suffered the injuries
only she knew about it. No defence
evidence was led by the accused.

22. The Trial Court, thereafter, vide
impugned judgment of conviction, held the
appellant guilty of offences and vide order
of sentence, awarded him death sentence
with fine.

23. Learned counsel for the appellant
has argued that the case of the prosecution
is based on circumstantial evidence as it is
not a case of eye witness account.

24. Learned counsel for appellant has
raised the following arguments : -

(A) It is submitted that there is
delay of four hours in lodging an FIR.
Mithalesh-PW-1 has stated that the incident
is of around 2:30 p.m. on 20.10.2021
however, the FIR has been registered at
17:53 hrs on the same date and the distance
between the place of occurrence and the
police station is around four km., therefore,
the prosecution has failed to give any
plausible explanation for the delay in
giving the information to the police station.

(B) It is next argued that as per
deposition of Mithalesh-PW-1 (informant),
the maternal grandfather of the victim, on
hearing the cries of victim, he alongwith
his son Karan Singh broke open the door of
the fodder room, however, the same was
not corroborated by the Investigating
Officer.

(C)
Learned
counsel
further
argued that even it has come in the
statement of Suman-PW-3, mother of the
victim that his son Karan Singh has broken
the door and, therefore, both PW-1 & PW-3
are consistent that by breaking the door,
they entered the fodder room. However, in
the
cross
examination,
PW-6,
the
Investigating Officer has stated that he had
not seen any mark on the door of making
any forced entry and the lock of the door
was attached.

(D) Learned counsel submits that
even in the FIR/ complaint, the informant
has not stated regarding breaking open the
door and son of the informant Karan Singh
is examined as a witness.

(E) Learned counsel submits that
place of incident is not proved by the
prosecution and the survival (victim) was
found from some other place and place of
occurrence is shown in house of the
neighbour just to rope in the accused being
his brother-in-law.

(F) Learned counsel has next
argued that PW-1 & PW-3 has stated that
many people had gathered at the place of
incident but statement of no independent
witness
was
recorded,
only
family
members of the victim have recorded their
statement under Section 161 Cr.P.C. as
well as Section 164 Cr.P.C..

(G) Learned counsel submits that
statement of PW-3 (Suman) that about 200
people have gathered at the spot when they
recovered
the
minor
victim,
is
not
supported by the Investigating Officer and,
therefore, the version given by PW-1 &
PW-3 are contradictory.

(H) Learned counsel next argued
that there are contradiction in the statement
of PW-1 & PW-3 regarding hearing of cries
of the victim and efforts made to locate her.

(I) Learned counsel submits that
in the FIR, it is stated that only after
hearing the cries of the victim from a room,
of abutting house of the informant, they
could locate the victim whereas PW-1 in
his statement has stated that he heard the
cries of the victim, when he entered the
7 All. Prem Naresh Vs. State of U.P.
755
house and when he entered in the room, the
victim was unconscious whereas PW-3 has
stated that first she heard the cries of the
victim and then they could locate her.

(J)
It
is
next
argued
that
contradiction in the statement of both PW-1
&
PW-3
shake
the
foundation
of
prosecution version regarding recovery of
the child and the presence of the accused at
the spot.

(K) It is further argued that as per
PW-6,
the
Investigating
Officer,
he
recovered the clothes of the accused at the
pointing out of the accused on 22.10.2021,
from the house of the accused vide a
recovery memo. However, PW-1 stated that
after the incident, he has handed over the
accused to the police officials on the date
of incident and at that time the accused was
wearing green coloured shirt which was
bloodstained and a trouser whereas, the
recovery of a blue coloured underwear and
army coloured lower was effected as per
the recovery memo. It is also submitted that
PW-6 stated that the accused Prem Naresh
was arrested one day after the incident from
near a canal by the S.H.O. whereas PW-1
& PW-3 have stated that they have handed
over the accused to the police officials
when they reached at spot and, therefore,
the arrest of accused and the clothes worn
by him creates doubt about the alleged
recovery of clothes and the Investigating
Officer has in fact planted the recovery by
showing it from the house of the accused.

(L) It is next argued that PW-3
has stated that there were two doors in the
room but PW-6, Investigating Officer has
stated that there was only one wooden door
of the fodder room and there was no other
door. It is submitted that PW-3 being an
eye witness has clearly stated that there
were two doors in the fodder room where
the incident has occurred and, therefore, the
place of occurrence is not proved as the
place where the victim was allegedly
sexually assaulted.

(M) Learned counsel submits that
PW-6, the Investigating Officer, stated that
when he visited the place of occurrence,
there was only one door which was not
broken and thus PW-3 is not an eye witness
and if she is an eye witness then the place
of recovery of victim is not one as stated by
the Investigating Officer. It is next argued
that the discrepancies in the statements of
eye witnesses regarding the clothes of the
accused makes the case doubtful.

(N) Learned counsel has argued
that PW-1-Mithalesh and PW-3- Suman
deposed themselves to be an eye witness of
the incident but there are discrepancies
about the clothes worn by the accusedappellant.

(O) It is next argued that in the
statement given under Section 164 Cr.P.C.
by PW-3, the mother of the victim stated
that she has seen the accused changing his
clothes inside the room where the incident
took place. PW-1 has stated that he has
seen the accused hiding himself behind the
bricks when he entered the room and
thereafter the accused on seeing him, ran
away. PW-1 has also stated that accused
was wearing a green coloured shirt having
blood stains. However, PW-3 has stated
that when she noticed the accused running
away from the room, he was wearing lower
and vest and there is no mentioning of any
blood on the same. The counsel argued that
both PW-1 and PW-3 are at variance
regarding the clothes worn by the accused
at the time of the incident which makes the
prosecution case doubtful. It is next argued
that there is no eye-witness who had seen
the victim being taken away by the accused
or accused committing the alleged sexual
assault on her.
 (P) The counsel has referred to
the statement of both PW-1 and PW-3 who
756 INDIAN LAW REPORTS ALLAHABAD SERIES
have not stated that they had seen the
victim being taken away by the accused
and they are not the witnesses to the sexual
assault by the accused. It is next argued that
in the statement of the victim recorded
under Section 164 Cr.P.C, she has not
named the accused. The counsel submits
that in this statement, the victim stated that
she was put on a sack in the room, the door
was closed. She deposed that her eyes were
closed, her cheeks were scratched and
hands and legs were tied. Baba assaulted
her at sexual organs and used his hand to
press her mouth. The counsel submits that
the victim has not named the accused and
therefore, his identity is not established. It
is next argued that PW-1 has stated that the
accused has taken away the victim by
luring her to give biscuit whereas the
victim stated that she was lured on the
pretext of giving a toffee. The counsel
submits that no wrapper either of biscuit or
toffee was found by the I.O. at the spot. It
is next argued that in the medico-legalexamination of Prem Naresh- accused, no
injuries were found on his body. The
counsel submits that both PW-1 and PW-3
have deposed that after the accused was
apprehended at the spot, lot of people
gathered and they gave beatings to the
accused, however, in his medico legal
examination, no injuries was found which
belies the version of prosecution.

(Q) Learned counsel, contrary to
the argument raised at point (A) that there
is delay of four hours in lodging the F.I.R.
further argued that the FIR is ante-time. As
PW-1 has stated that after the incident, he
had handed over the accused to the police
on the very date of incident which occurred
around 2:30 PM and FIR was registered at
5:53 PM. PW-6, the first I.O. has stated
that accused Prem Naresh was arrested on
the next day i.e. 21.10.2021 by the SHO
from the distant place i.e. a canal.
Therefore, it is argued that FIR is ante-time
and the investigation was conducted in a
manner to indict the appellant as an
accused. It is argued that the contradiction
in the statement of the witnesses as well as
I.O. again raises a suspicion about the
credibility of the prosecution witnesses and
the appellant was kept in illegal detention
by the police.

(R) The counsel has next argued
that it has come in the statement of PW-2
Dr. Seema Gupta who conducted the
medico-legal-examination of the victim and
as she has stated that she is not sure
whether the injury can only be caused due
to sexual assault. It is submitted that this
witness has stated that she has kept the
clothes which were worn by the survivor in
the bag and do not remember if there were
blood staines. It is next argued that the
memo which was prepared by the F.S.L.
team at the time of visiting the place of
occurrence is not placed on record of the
trial court. It is also argued that as per the
PW-1
and
PW-3
the
offence
was
committed on a plastic sack which was
found at the place of incident and the
victim was found lying on the sack in semi
unconscious condition. However, PW-6-
the I.O. has stated that when he reached the
spot he had found a sack amongst other
articles and had seen blood spots on the
plastic sack but it was not recovered by the
forensic team from the place of incident.
The counsel has referred to the F.S.L.
report, in which there is no mention of a
plastic sack recovered from the place of
incident. The counsel has thus argued that
appellant has been convicted in the aid of
Section 5/6 of POCSO Act though the
prosecution has failed to dispel the proof of
the prosecution evidence beyond doubt.

(S) Learned counsel has argued
that even the F.S.L. report does not prove
the commission of crime by the appellant.
7 All. Prem Naresh Vs. State of U.P.
757
For a reference, F.S.L. report is reproduced
as under:

"हिहध हिज्ञ न प्रयोगश ि , उ०प्र०, आगर

सांयुक्त हनदेशक,

हिहध हिज्ञ न प्रयोगश ि , उ०प्र०,

15 त ज रोड, आगर -282001

सेि में,

पुहिस अधीक्षक औरैय

औरैय ।

पत् ांकः 5507-DNA-312/21

अप०सां०ःः516/21

र ज्य बन म- प्रेम नरेश

ध र ः 376AB IPC ि 5/6 POCSO
Act थ न - हबधून

उपयुुक्त म मिे से सम्बहधधत प्रदशु प्रयोगश ि में
हदन ाँक 26/10/2021 को हिशेष ि िक द्व र प्र प्त ि ये।
सीि क हििरण

कुि ग्य र ि (नौ समुहित हिफ फ ि एक िस्त्र ित
समुहित बण्डि तथ एक समुहित थम ुकॉि बॉक्स हजन पर
(DCH AURAIYA) मुि हिफ फ (1) से (9) ि मुि
थम ुकॉि बॉक्स (11) पर (Signature UPP) मुि बण्डि
(10) पर नमून नुस र की छ प अक्षत थी।

प्रदशों क हििरण

01- िज इनि स्िैबहस्टक ।
पीह़ित S..
से एक समुहित हिफ फ में

02- िििि स्िैबहस्टक ।
पीह़ित S..
से एक समुहित हिफ फ में

03- एनि स्िैबहस्टक ।

पीह़ित S.. से एक समुहित हिफ फ में

04- ब्रेस्ट स्िैबहस्टक ।

पीह़ित S.. से एक समुहित हिफ फ में

05- रक्त नमून ।

पीह़ित S.. से एक
समुहित हिफ फ में

06- स्कटु ।
पीह़ित S.. से एक समुहित
हिफ फ में

07- टॉप ।
पीह़ित S.. से एक समुहित
हिफ फ में

08- प्युहबक िेयर ।

अहियुक्त प्रेम नरेश से एक समुहित हिफ फ में

09- टुक़िे न खुन I

अहियुक्त प्रेम नरेश से एक समुहित हिफ फ में

10- अण्डरहियर I

अहियुक्त प्रेम नरेश से एक समुहित बण्डि में

11- िोअर I

अहियुक्त प्रेम नरेश से एक समुहित हिफ फ में

12- रक्तनमून I

अहियुक्त प्रेम नरेश से एक समुहित थम ुकॉि बॉक्स में
परीक्षण परीण म

प्र प्त प्रदशों (1) से (12) क डी०एन०ए० परीक्षण
हकय गय ।

स्त्रोत प्रदशु (11) (प्रेम नरेश से) पर उपहस्थत
ब योि हजकि िव्य क स्त्रोत प्रदशु (5) ( S...) के सम न प य
गय ।

(HID-STR KITS)

स्त्रोत प्रदशु (1) से (3)ि (6) ( S..... से) में
पुरुष हिहशष्ट एिीि की उपहस्थहत प यी गयी परधतु आांहशक
डी०एन०ए० प्रोफ इि जनरेट िोने के क रण स्त्रोत प्रदशु (12) (प्रेम
नरेश से) से हमि न के सम्बधध में अहिमत हदय ज न सम्िि न िो
सक । (HID & Y-STR KITS)

स्त्रोत प्रदशु (4) ि (7), क डी०एन०ए० प्रोफ इि
स्त्रोत प्रदशु (5) (S..... से) के सम न ि स्त्री मूि क प य गय ।
(HID- STR KIT)

स्त्रोत प्रदशु (8) से (10) क डी०एन०ए० प्रोफ इि
स्त्रोत प्रदशु (12) ( प्रेम नरेश से) के सम न ि पुरूष मूि क प य
गय ।। (HID&Y-STR KIT)

डी०एन०ए० परीक्षण मे जैनेहटक एन ि इजर ि जीन
मैपर स फ्टिेयर क प्रयोग हकय गय ।

उक्त परीक्षण में म नक हिहधय ाँ प्रयोग में ि यी गयी।

नोटः- समस्त प्रदशों को परीक्षण उपर धत एक
समुहित बण्डि में ि पस िौट य ज रि िै।

आिश्यक क युि िी िेतु अग्रस ररत

ि० अप०

ि० अप०

03/01/23

 03/01/23

सांयुक्त हनदेशक

उप हनदेशक

डी० एन० ए० अनुि ग

हिहध हिज्ञ न प्रयोगश ि

आगर , उ० प्र०"
758 INDIAN LAW REPORTS ALLAHABAD SERIES
 (T) The counsel has argued that
the articles from S.Nos.1 to 7 belong to the
victim and were handed over by PW-2 to
the I.O. whereas articles at S.Nos.8 to 12
belong to the accused-Prem Naresh.

(U) The counsel submits that as
per the final conclusion drawn in the report,
it is stated that Ex.1 to 12 were subjected to
DNA examination. From the source Ex.11,
which was lower worn by Prem Naresh, the
source of biological fluid matched with the
source at Ex.5 of the victim i.e. blood
sample. The counsel submits that this is not
sufficient to hold the appellant guilty of
offence as from the source (Ex. 1 to 3 and
6) of the victim which are vaginal swab
stick, vulval swab stick, anal swab stick
and skirt, the presence of male allele was
found but because of partial generation of
DNA profile, it was found that it is not
possible to match the same with Ex.12 i.e.
blood sample of accused- Prem Naresh.
The counsel submits that in view of this
FSL report, it cannot be held that the
appellant has committed the offence.

(V) Lastly, learned counsel has
argued that the legal-aid-counsel appointed
by the trial court to defend the accused has
not properly conducted the trial as neither
the material questions were put to the
prosecution witnesses nor proper reply was
given to the questions put while recording
the statement under Section 313 Cr.P.C.
and in order to prove innocence, the
defence counsel failed to examine defence
witness about his plea of alibi.

25. In reply, the learned AGA
assisted by the Amicus Curiae/ Legal-AidCounsel appointed by the court on behalf of
the victim has argued that the victim was
subjected to aggravated penetrative sexual
assault.

(B) The counsel has referred to
MLC Report of the victim which is proved
by Dr. Seema Gupta wherein, she has
stated that on the sexual organs of the
victim, fresh blood was seen and there was
long tear from the vagina upto anus of the
victim, as reflected in the sketch attached
on the MLC Report.

(C) It is argued that doctor has
clearly opined that the victim who is aged
about three years at the time of incident
was sexually assaulted and therefore, the
medical evidence proved the charge against
the appellant.

(D) It is next argued that during
the cross-examination, PW-2 has clearly
stated that if the victim had fallen on sharp
end article, she may suffer injury on her
sexual organs but the injury on the vagina
and
the
anus
cannot
be
caused
simultaneously.

(E) The counsel submits that it is
a case where PW-1 and PW-3 have
witnessed the occurrence and they have
recovered the child from the accused, who
was also found present at the spot where
the occurrence has taken place.
 (F) The counsel submits that both
the
witnesses
PW-1
and
PW-3
are
consistent in making statement that when
they entered fodder room the victim was
lying on plastic bag in nude condition and
told that the accused on pretext of giving
biscuit took her inside the fodder room and
committed the offence.

(G) It is next argued that
immediately
after
the
incident,
the
statement of the victim as well as PW-3,
the mother of the victim, was recorded by
the police and the Magistrate. The
statement was duly proved by PW-3.
Learned AGA has submitted that in both
the statements, the involvement of the
appellant is duly proved.
7 All. Prem Naresh Vs. State of U.P.
759

(H) It is argued that the statement
under Section 164 Cr.P.C. was recorded in
accordance with law and even the victim
has stated that the manner in which, the
offence was committed and she called her
Baba (grandfather). It is next argued that
after the arrest of the accused, he himself
pointed out the place from where, the blue
colour underwear and army coloured lower
were kept concealed in a plastic bag and
were recovered.