"No Worthwhile Evidence To Prove Charges": Allahabad HC Acquits Minor's Rape-Murder Accused, Sets Aside Death Sentence

The Allahabad High Court recently rejected the reference made to it to confirm the death penalty awarded to a man accused of burning a 14-year-old girl alive after committing rape upon her.

Acquitting the accused of Rape and Murder charges, the Bench of Justice Manoj Misra and Justice Sameer Jain noted that that there was no worth-while evidence on record to prove the charges against the accused-appellant.

The facts in brief 

As per the FIR in the case, lodged at the instance of the father (PW1) of the 14-year-old rape-murder victim, on April 15, 2019, at about 10 pm, when PW-1 and his wife (not examined) were away, their daughter (the victim), who was with her maternal grandmother (Nani) (PW-2), was raped by the 25-year-old accused-appellant and when she resisted his actions, she was set ablaze.

On the next day, the victim was medically examined and the injury report reflected thermal burns to the extent of 85% on the head, neck, part of the face, anterior and posterior trunk, upper limb and lower limb, genitalia. Thermal burns were from kerosene oil and were 3 found grievous in nature. On May 1, the victim died.

The trial court, after holding a trial in the case, found the victim to be a minor and also held that that the lodging of the FIR and submission of charge sheet against the accused-appellant was proved; that the place of incidence was proved by the prosecution witnesses; and that the medical report proved that hymen of the victim was torn.

Further, by placing reliance on the provisions of Section 29 of the Pocso Act, the trial court said that the burden was cast on the accused to prove his innocence, which he couldn't prove and thus, by relying on the dying declaration held that the prosecution was successful in proving the charge against the appellant.

Consequently, the trial court recorded the conviction 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 and had awarded him a death sentence. 

Court's observations

The Court, at the outset, noted that it was not disputed that the victim had died due to the burn injuries, however, with regard to the participation of the accused in causing thermal burn injuries to the victim or making a penetrative sexual assault on the victim, the Court found that the prosecution witnesses of fact in their deposition have not supported the story taken in the first information report.

The Court observed that the prosecution witnesses had claimed that the victim got accidentally burnt while cooking food as a kerosene oil bottle slipped and fell on the gas burner.

Further, noting that the prosecution witnesses also did not depose about the presence of the accused-appellant in the house at the time of the incident, the Court concluded that the prosecution had not been able to prove that the accused-appellant entered the house of the victim, misbehaved with her, or sexually assaulted her in any manner, and, thereafter, set her on fire.

Regarding the applicability of Sectio 29 of the POCSO Act, the Court noted that to take the benefit of the presumptive provisions of section 29 of the Pocso Act, the prosecution, by leading legally admissible evidence, would have to prove the foundational or basic facts in respect of commission of the offence(s) specified therein by the accused.

It may be noted that Section 29 of the POCSO Act raises a presumption of commission of offences under Section 3, 5, 7 and 9 of the Act against a person who is prosecuted against the same, unless the contrary is proved.

However, the Court found that in the instant case the prosecution had not been able to prove the foundational allegations against the accused, and therefore, it held that the benefit of the presumption wasn't available to the prosecution.

Regarding the dying declaration, the Court noted that it had not been exhibited and it was not put to the accused while recording his statement under Section 313 CrPC, a fortiori, and thus, the same cannot be read and form basis of conviction.

The Court also observed that neither the recording Magistrate nor the doctor, who certified the mental and physical condition of the victim, had been examined. The Court also noted that the prosecution chose not to prove the dying declaration, and thus, it can not be said that the prosecution was prevented from leading evidence in that regard

In view of this, the appeal was allowed. The judgment and order of the trial court was set aside. The reference to confirm the death penalty was rejected and the appellant is acquitted of the charges for which he has been tried.

Case title - Monu Thakur v. State of U.P.
Case Citation: 2022 LiveLaw (AB) 97

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