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2022 DIGILAW 1776 (ALL)

Ahsan v. State of U. P.

2022-11-11

SUNEET KUMAR, SYED WAIZ MIAN

body2022
JUDGMENT : 1. Heard Shri Mohit Behari Mathur, learned Amicus Curiae and the learned A.G.A. for the State-respondents. 2. The instant jail appeal has been filed by the appellant against the order dated 25.02.2020 passed in Sessions Trial No.44 of 2020 (State of U.P. Vs. Ahsan) arising out of Case Crime No.534 of 2019, under Sections 376-AB I.P.C. & Section 5(m)/6 POCSO Act, Police Station Pilkhuwa, District-Hapur, whereby the appellant came to be convicted under Section 376 AB for life and fine at Rs.50,000/-was imposed. That apart appellant has been convicted under Section 5m/6 POCSO Act for life and Rs.50,000/- fine was imposed. 3. The prosecution to prove the charge examined victim-P.W.1(Lavi), Amresh-P.W.2 (mother of the victim), Vinod-P.W.3 (informant), Payal-P.W.4 (sister of the victim), the other witnesses examined are formal witness, including, Dr. Anju Singh-P.W.-6. 4. According to prosecution case, in the evening of 10.10.2019, the daughter of the complainant, namely, Labi, aged about two and half years, was playing in front of his house, one Ahsan S/o Aas Mohammad, took her in the field of sugar cane and raped her. The elder daughter of the complainant, namely, Payal and one Rekha, who were coming from the field, had seen Ahsan coming out from the sugar cane field, and the victim was weeping. The victim narrated the incident to the family members and thereafter the complainant went to the Police Station and lodged the First Information Report. 5. The sole submission of the learned Amicus Curiae is that the conviction of the appellant rests on the testimony of the victim-P.W.1. Admittedly, P.W.2 & P.W.3 were not present and P.W.4, as per the prosecution case, was present, nearby, but has denied the presence of the accused/appellant on the spot and P.W.4 has categorically stated that the appellant at the relevant time was at his mama's place. Further, she deposes that victim had not disclosed the name of the appellant of having committed the offence. In this backdrop, it is further submitted that it is reflected from the record of the trial court that examination-in-chief of P.W.1 was recorded on 14.01.2020. Victim supported the prosecution version that the appellant had committed the offence. The cross-examination of P.W.1 was deffered by the trial court for 24.01.2020, thereafter, prosecution did not produce P.W.1 for further cross-examination, nor, the trial court took measures to summon the P.W.1 for her cross-examination. Victim supported the prosecution version that the appellant had committed the offence. The cross-examination of P.W.1 was deffered by the trial court for 24.01.2020, thereafter, prosecution did not produce P.W.1 for further cross-examination, nor, the trial court took measures to summon the P.W.1 for her cross-examination. In this backdrop, it is submitted that it is a case of no evidence and the trial court committed gross error in resting the conviction on the testimony of P.W.1 without giving full opportunity to the appellant to complete the cross-examination. It is further submitted that the testimony of the other witnesses of fact, namely, P.W.2, P.W.3 & P.W.4 in the circumstance would not corroborate the testimony of P.W.1 because the testimony of P.W.1 remained incomplete. P.W.2 (mother) and P.W.3 (informant), admittedly, were not present on the spot and P.W.4 (sister of the victim) though present, has denied the presence of the accused on the spot and she has categorically stated in her cross-examination that the victim did not name the appellant of having committed the offence. 6. In support of his submission, learned counsel for the appellant has placed the reliance on the decision rendered by the Supreme Court in State of Rajasthan Vs. Daulat Ram, AIR (SC) 1980 0 1314 and Division Bench decision of this Court rendered in Hori Lal Vs. State of Uttar Pradesh. 7. In Hori Lal (Supra), the Court in paragraph 23 made the following observations. Para 23 reads as thus: "23. So far as the testimony of (PW-2) Chigga Ram is concerned, though he has supported the prosecution version in his examination-in-chief, however his statement shows that on 11.07.1989, his cross-examination was deferred for 03.08.1989, but thereafter (PW-2) Chigga Ram did not appear for his further cross-examination and thus, his statement remained incomplete. Perusal of Sections 137 and 138 of Evidence Act, 1872 makes it clear that a witness first has to be examined-in-chief and then he has to be cross-examined by the adverse party. In the instant matter, it is not a case that defence has foregone or waived his right of his cross-examination or that opportunity for cross-examination was granted to adverse party to complete cross-examination, rather it appears that Court has passed order for summoning of (PW-2) Chigga Ram for his further cross-examination, but he did not appear for the same. In the instant matter, it is not a case that defence has foregone or waived his right of his cross-examination or that opportunity for cross-examination was granted to adverse party to complete cross-examination, rather it appears that Court has passed order for summoning of (PW-2) Chigga Ram for his further cross-examination, but he did not appear for the same. Though in such an eventuality, it was incumbent upon the trial court that it must have issued coercive process against this witness to secure his presence for his cross-examination in order to complete his statement, but there is nothing to indicate that learned trial court has taken any such step. In the impugned judgment, it was observed by the learned trial court that though the cross-examination of (PW-2) Chigga Ram could not be completed, but whatever cross-examination has done earlier, that was sufficient and that he has been cross-examined on all important points. Taking such a view, learned trial court has relied upon the statement of (PW-2) Chigga Ram. We are afraid, the approach adopted by the learned trial court regarding statement of (PW-2) Chigga Ram is not in accordance with law. As stated earlier, to complete the statement of a witness, the adverse party has to be given an opportunity of cross-examination, which is lacking in the present case. In view of these facts and circumstances, statement of (PW-2) Chigga Ram could not have been taken into consideration against the accused-appellants." 8. On perusal of Sections 137 and 138 of Evidence Act, 1872, makes it clear that the victim has to be examined in chief and then she has to be cross examined by the defence. 9. In the instant case, it is not the case of prosecution that defence has foregone or waived its right for cross-examination or that full opportunity of cross-examination was not granted, rather, it appears that the prosecution had not produced the victim P.W.1 for her complete cross-examination on the date fixed, nor, the trial court made an endeavour to take coercive measures against the witness to secure her presence for cross-examination in order to complete her statement. The record does not indicate that any such endeavour or steps was taken. The omission of the prosecution to get the victim cross examined would sever the root of the prosecution case. The record does not indicate that any such endeavour or steps was taken. The omission of the prosecution to get the victim cross examined would sever the root of the prosecution case. The testimony of P.W.2, P.W.3, P.W.4 and P.W.6 the doctor, being mere corroborative, would not support the prosecution case as the star witness i.e. victim was not subjected to cross. The appellant in his statement under Section 313 Cr.P.C. had denied the incident and claimed of having been falsely implicated out of enmity. 10. In the circumstances, we are of the opinion that the conviction solely based on the testimony of P.W.1, per se, is illegal and we are unable to agree and sustain the judgment and conviction of the appellant by the trial court. 11. Accordingly, the jail appeal is allowed. 12. The judgment and order of the trial court is hereby set aside. 13. The appellant shall be released from jail forthwith if not wanted in any other case. The mandate of Section 437-A of Cr.P.C. shall be complied. 14. Registry to send a copy of this order to the concerned Jail Superintendent and the learned C.J.M. for compliance. 15. Record to be returned. 16. We appreciate the assistance of Shri Mohit Behari Mathur, learned Amicus Curiae and direct that Rs. 25,000/-shall be paid to him by the State Government as his remuneration.