Point of Law: Retrial can be directed in exceptional circumstances but not merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons.

JUDGMENT :

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 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 butt