# Ahsan v. State of U.P. Opp. Party

- **Citation:** (2022) 11 ILRA 1145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-11
- **Case number:** Jail Appeal No. 119 of 2021
- **Bench:** Suneet Kumar, Syed Waiz Mian
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ahsan-v-state-of-u-p-opp-party-47972
- **Pages:** 4

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Sections 137 & 138- 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- It is
not the case of prosecution that defence
has foregone or waived its right for crossexamination 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
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
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
conviction solely based on the testimony
of P.W.1, per se, is illegal.

Settled law that in order to complete the
statement of a witness, the accused has to be
given an opportunity of cross-examination and
where the same is not provided for no fault of
the defence, then the testimony of the victim
could not have been taken into consideration
against the appellant. (Para 9, 10,11)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

11 All. Ahsan Vs. State of U.P.
1145
an unnatural death by consuming poison in
the fateful night. The accused are already
acquitted of the charge under Section 306
IPC by the learned trial Court and said
verdict of acquittal has not been challenged
either by the State or by the complainant.
Enmity between accused and witnesses has
been suggested by the defence, however,
same has been denied by the witnesses
Kajoli and Digamber, in their sworn
testimony.

27. In view of above, reasoning of
above cited judgements of Apex Court is
applicable where it is held that mere fact
that the deceased allegedly died an
unnatural death, could not be sufficient to
bring home charge punishable under
Section 201 IPC unless the prosecution was
able to establish that the accused persons
knew or had reason to believe that an
offence has been committed and have done
something
causing
the
offence
of
commission of evidence to disappear, he
cannot be convicted.

28. Thus, as aforesaid, this Court is of
the view that the learned Sessions Court is
not justified in convicting the appellants
under Section 201 IPC and the same cannot
be sustained.

29. Accordingly, this appeal succeeds
and is allowed. The impugned judgment
and order of conviction and sentence dated
8.12.1989 in S.T. No.145 of 1989, passed
by Additional Session Judge- IInd, Mathura
is hereby set aside and the appellants
namely, Revati, Babu Lal, Girraj, Bheema
and Madan are acquitted of the charge u/s
201 I.P.C.

30. It is directed that the accusedappellants shall file bail bonds to the tune
of Rs.40,000/- and two sureties each, in the
likeamount to the satisfaction of the learned
trial Court, within a period of one month
from today in compliance of Section 437
(a) of Cr.P.C.

31. Let a copy of this judgment along
with lower court's record be sent back to
the
court
concerned
for
immediate
compliance.
----------
(2022) 11 ILRA 1145
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.11.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Jail Appeal No. 119 of 2021

Ahsan ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
From Jail, Sri Mohit Behari Mathur

Counsel for the Respondents:
A.G.A.

Criminal Law- Indian Evidence Act, 1872-
Sections 137 & 138- 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- It is
not the case of prosecution that defence
has foregone or waived its right for crossexamination 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
1146 INDIAN LAW REPORTS ALLAHABAD SERIES
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
conviction solely based on the testimony
of P.W.1, per se, is illegal.

Settled law that in order to complete the
statement of a witness, the accused has to be
given an opportunity of cross-examination and
where the same is not provided for no fault of
the defence, then the testimony of the victim
could not have been taken into consideration
against the appellant. (Para 9, 10,11)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

1. St. of Raj. Vs Daulat Ram, AIR (SC) 1980 0
1314

2. Hori Lal Vs St. of U.P, Crl. Appeal No. 1576 of
1990.

(Delivered by Hon'ble Suneet Kumar, J. &
Hon'ble Syed Waiz Mian, J.)

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),
AmreshP.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 SinghP.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
11 All. Ahsan Vs. State of U.P.
1147
had committed the offence. The crossexamination 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.

8. 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 crossexamination
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. 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
crossexamination of (PW-2) Chigga Ram could
not be completed, but whatever crossexamination has done earlier, that was
sufficient and that he has been crossexamined 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 crossexamination, which is lacking in the present
case.
In
view
of
these
facts
and
circumstances, statement of (PW-2) Chigga
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
Ram could not have been taken into
consideration
against
the
accusedappellants."

9. 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.

10. In the instant case, it is not the
case of prosecution that defence has
foregone or waived its right for crossexamination 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 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.

11. 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.

12. Accordingly, the jail appeal is
allowed.

13. The judgment and order of the
trial court is hereby set aside.

14. 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.

15. Registry to send a copy of this
order to the concerned Jail Superintendent
and the learned C.J.M. for compliance.

16. Record to be returned.

17. 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.
----------
(2022) 11 ILRA 1148
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.11.2022

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Crl. Appeal No. 691 of 2006

Ramesh ...Appellant
Versus
State of U.P. ...Opp. Party

Counsel for the Appellant:
Sri Devendra Saini, Sri Anupam Dubey, Dr.
Hridyawati Misra

Counsel for the Respondents:
Govt. Advocate

Criminal Law- Indian Evidence Act, 1872-
Section 3- Section 134- The identity of the
accused-appellant cannot be doubted by
any stretch of imagination as he is the
step father of victim ''X'. The case right
from the inception is of the accusedappellant taking away victim ''X' from the