# Ajay Kumar v. State of U.P

- **Citation:** (2024) 2 ILRA 1326
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-08
- **Case number:** J. Criminal Appeal No. 3 of 2019
- **Bench:** Ashwani Kumar Mishra, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-v-state-of-u-p-51348
- **Pages:** 12

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302, 404, 406, 420, 467, 468 &
471 - Code of Criminal Procedure, 1973 -
Sections 27, 173 & 313 - Indian Evidence
Act, 1872 - Section 27 - Appellant challenged
conviction under Sections 302, 404, 406, 420,
467, 468, 471 I.P.C. for murder of elderly couple
and unauthorized withdrawal from their bank
account. Court held: (1) Prosecution failed to
prove appellant's involvement in homicidal
deaths, as postmortem showed ante-mortem
injuries but no poisoning evidence contradicted
confession; viscera report negative for toxins
(Sharad Birdhichand Sarda Vs St. of Mah., AIR
1984 SC 1622). (2) Recovery of deceased's
mobile from appellant unproven, as sole witness
(PW-1) turned hostile and no Section 27
disclosure St.ment existed (Pulukuri Kottaya Vs
King-Emperor,
AIR
1947
PC
67).
(3)
Unauthorized withdrawal of Rs. 6,70,000/- using
appellant's cheque leaflets from deceased's
account
established,
but
bank
officials'
complicity and Shahnawaj's role unexplained;
appellant's loss report and address change
2 All. Ajay Kumar Vs. State of U.P.
1327
probablized non-involvement (St. of Mah. Vs
Damu, (2000) 6 SCC 269). (4) Circumstantial
evidence chain incomplete; no motive beyond
uncorroborated loan repayment, and alternate
hypothesis (cheque book theft) viable (Jabir Vs
St. of Uttarakhand, 2023 SCC OnLine SC 32).
(5) Appellant's quick shift to new residence
post-incident not proven, as bank records
showed prior address change. Conviction and
sentence reversed; appellant acquitted. (Paras
24-40)

Criminal Appeal Allowed.

Case Law Cited:

## Text

_Characters 0–39,977 of 40,014. This is a partial read: ask again with offset=39977 for what follows._

1326 INDIAN LAW REPORTS ALLAHABAD SERIES
has been embezzled and FIR has been
instituted regarding the embezzlement of
amount of Rs. 31,39,638/- only, as such,
there cannot be pick and choose in the said
matter of embezzlement and also taking
into consideration that all the withdrawal
has been made through cheques and there is
no FSL report on record to suggest that the
signatures have been forged, coupled with
the fact that the applicant has no criminal
history, without expressing any opinion on
the merits of the case, the Court is of the
view that the applicant has made out a case
for bail. The bail application is allowed.

14. Let the applicant- Anil Kumar
Mishra who is involved in aforementioned
case crime be released on bail on his
furnishing a personal bond and two sureties
each in the like amount to the satisfaction
of the court concerned subject to following
conditions. Further, before issuing the
release order, the sureties be verified.

(i) The applicant shall not tamper
with evidence.

(ii) The applicant shall remain
present, in person, before the Trial Court on
dates fixed for (1) opening of the case, (2)
framing of charge and (3) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the Trial Court absence of
the applicant is deliberate or without
sufficient cause, then it shall be open for
the Trial Court to treat such default as
abuse of liberty of bail and proceed against
him in accordance with law.

15. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail.

16. It is made clear that observations
made in granting bail to the applicant shall
not in any way affect the learned trial Judge
in forming his independent opinion based
on the testimony of the witnesses.
----------
(2024) 2 ILRA 1326
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.02.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MS. NAND PRABHA SHUKLA,
J.

Criminal Appeal No. 3 of 2019

Ajay Kumar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Radhey Shyam Yadav, Sri Indra Sen Singh,
Sri Sachin Mishra, Sri Dileep Kumar (Sr.
Advocate)

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 302, 404, 406, 420, 467, 468 &
471 - Code of Criminal Procedure, 1973 -
Sections 27, 173 & 313 - Indian Evidence
Act, 1872 - Section 27 - Appellant challenged
conviction under Sections 302, 404, 406, 420,
467, 468, 471 I.P.C. for murder of elderly couple
and unauthorized withdrawal from their bank
account. Court held: (1) Prosecution failed to
prove appellant's involvement in homicidal
deaths, as postmortem showed ante-mortem
injuries but no poisoning evidence contradicted
confession; viscera report negative for toxins
(Sharad Birdhichand Sarda Vs St. of Mah., AIR
1984 SC 1622). (2) Recovery of deceased's
mobile from appellant unproven, as sole witness
(PW-1) turned hostile and no Section 27
disclosure St.ment existed (Pulukuri Kottaya Vs
King-Emperor,
AIR
1947
PC
67).
(3)
Unauthorized withdrawal of Rs. 6,70,000/- using
appellant's cheque leaflets from deceased's
account
established,
but
bank
officials'
complicity and Shahnawaj's role unexplained;
appellant's loss report and address change
2 All. Ajay Kumar Vs. State of U.P.
1327
probablized non-involvement (St. of Mah. Vs
Damu, (2000) 6 SCC 269). (4) Circumstantial
evidence chain incomplete; no motive beyond
uncorroborated loan repayment, and alternate
hypothesis (cheque book theft) viable (Jabir Vs
St. of Uttarakhand, 2023 SCC OnLine SC 32).
(5) Appellant's quick shift to new residence
post-incident not proven, as bank records
showed prior address change. Conviction and
sentence reversed; appellant acquitted. (Paras
24-40)

Criminal Appeal Allowed.

Case Law Cited:

1. Sharad Birdichand Sarda Vs St. of Mah., AIR
1984 SC 1622 (Para 38)

2. Hanumant Vs St. of M.P., AIR 1952 SC 343
(Para 38)

3. Shivaji Sahabrao Bobade Vs St. of Mah.,
(1973) 2 SCC 793 (Para 38)

4. Pulukuri Kottaya Vs King-Emperor, AIR 1947
PC 67 (Para 28)

5. St. of Mah. Vs Damu, (2000) 6 SCC 269 (Para
33)

6. Jabir Vs St. of Uttarakhand, 2023 SCC OnLine
SC 32 (Para 38)

(Delivered by Hon'ble Ms. Nand Prabha
Shukla, J.)

1. Heard Sri Dileep Kumar, learned
Senior Counsel assisted by Sri Sachin
Mishra, who have appeared to assist the
Court as Amicus Curiae and Ms. Archana
Singh, learned Additional Government
Advocate appearing for the State.

2. This Criminal (Capital) Appeal has
been filed by the accused/appellant Ajay
Kumar against the Judgement and Order
dated
04.04.2019
passed
by
learned
Sessions Judge, Auraiya in Sessions Trial
No. 54 of 2016 (State Vs. Ajay Kumar and
3 others) arising out of Case Crime No. 142
of 2014, under Sections 452, 302/34, 506
and 225 IPC, Police Station-Arwakatra,
District-Auraiya whereby appellant has
been convicted and sentenced to death for
offence under Section 302 IPC and to pay a
fine of Rs. 1,00,000/-, for offence under
Section 452 IPC to undergo rigorous
imprisonment for three years and a fine of
Rs. 5000/- and in Sessions Trial No. 55 of
2016 (State Vs. Ajay Kumar) arising out of
Case Crime No. 143 of 2014, under Section
25/27 of the Arms Act, Police StationArwakatra,
District-Auraiya
whereby
appellant has been convicted for offence
under Section 25 of the Arms Act and to
undergo rigorous imprisonment for three
years and a fine of Rs. 5000/-, for offence
under Section 27 of the Arms Act to
undergo rigorous imprisonment for five
years and a fine of Rs. 5000/-. The fine
shall be recoverable as an arrear of
revenue. In default of payment of fine,
there shall be no stipulation for additional
imprisonment. Eighty per cent of the fine
recovered shall be payable to the parents of
the deceased as compensation.

3. In the present matter, the Trial
Court has proceeded to send a Reference
under Section 366 Cr.P.C. for confirmation
of death sentence which is being decided
herein below:-

 4. Prosecution story, in brief, is as
follows:-

The first informant Ram Pratap
Awasthi, son of Shiv Shankar Lal, resident
of Erwatipur, Police Station-Arwakatra,
District-Auraiya moved a written Tehrir
dated 10.10.2014 at 20:10 P.M. stating that
on 10.10.2014 at around 6:30 P.M., when
the first informant was sitting in his house
talking to Prabha Kant and Ravish Kumar
1328 INDIAN LAW REPORTS ALLAHABAD SERIES
while his young daughter Km. Nisha, aged
about 14 years, was busy studying in the
courtyard, in the meantime, his neighbourer
Ajay Kumar, son of Ram Naresh alias
Naresh Chandra Kori, entered into the
house and fired at his daughter on her chest
with a country-made pistol. Hearing the
noise, people gathered and tried to nab the
accused but the accused escaped leaving
the country-made pistol on the spot. While
nabbing, the parts of his torn clothes were
left in his hands. The mother of the accused
Radha Devi, brother Vijay and his wife
intervened and helped him in escaping.
Accused Ajay Kumar often stalked his
daughter while she was on her way to
school and extended threats. He did not
complain to anyone due to family prestige.
His daughter died on the spot due to firearm injury. Hence the FIR.

5. Thus, on the basis of the written
report (Tehrir), a Chik FIR No. 142/2014,
under Sections 452, 302, 506/34 IPC,
Police Station Arwakatra, District-Auraiya
was registered against four persons on
10.10.2014.
The
investigation
was
entrusted to Station House Officer-Vinod
Kumar.

6. On 11.10.2014, on the pointing of
accused/appellant Ajay Kumar, a countrymade pistol of 315 bore, an empty cartridge
and five live cartridges were recovered in a
plastic bag kept inside his house. On the
basis of which another FIR arising out of
Case Crime No. 143 of 2014, under Section
25/27 of the Arms Act, Police Station
Arwakatra, District-Auraiya was registered
against Ajay Kumar.

7. During the course of investigation,
plain earth and blood stained earth were
recovered on 10.10.2014. The inquest
report was prepared on 10.10.2014 at 9.00
P.M. On 11.10.2014, post-mortem report
was prepared. During the post-mortem
examination,
following
ante-mortem
injuries were found on the body of the
deceased (Km. Nisha):-

"(i) Entry Firearm wound size
(1x1 cm) right side of chest in upper inner
quadrant of breast 9 cm away from nipple.
Blackening present. Margin inverted.

(ii) Exit wound of Firearm 11 cm,
below left scapula and 12 cm. from spinal
cord Size (1.5 x 1.5) cm.

(iii) Injury No. 1st through and
through injury No. 2nd."

8. The cause of death was shown as
'shock and haemorrhage' due to firearm
injury.

9. On 12.10.2014, the site plan was
prepared and, subsequently, statement of
witnesses were recorded under Section 161
Cr.P.C. After completion of investigation,
the charge-sheet was submitted in Case
Crime No. 142 of 2014 against Ajay Kumar
and 3 others under Sections 302, 452, 506
IPC and the co-accused Vijay, Radha Devi
and Geeta Devi were charge-sheeted
additionally under Section 225 IPC and in
Case Crime No. 143 of 2014 only appellant
Ajay Kumar was charge-sheeted under
Section 25/27 of the Arms Act.

10. After taking cognizance, the
charges were framed in Sessions Trial No.
54 of 2016 against Ajay Kumar, Smt.
Radha Devi, Vijay and Geeta Devi, under
Sections 452, 302, 34, 506 IPC and against
Radha Devi, Vijay and Geeta Devi under
Section 225 IPC as well. In Sessions Trial
No. 55 of 2016, the charges were framed
against Ajay Kumar under Section 25/27 of
the Arms Act. The accused denied their
guilt and claimed to be tried.
2 All. Ajay Kumar Vs. State of U.P.
1329

11. During the trial proceedings, six
prosecution witnesses were examined.

(i) P.W.-1 Ram Pratap Awasthi
(father of the deceased/eye witness)

(ii) P.W.-2 Smt. Shashi Prabha
(mother of the deceased/eye witness)

(iii) P.W.-3 Ram Chandra Shukla,
(Panch Witness)

(iv) P.W.-4 Dr. Shailendra Kumar
Singh, (conducted the post mortem)

(v) P.W.-5 S.I. Vinod Yadav
(Investigating Officer)

(vi) P.W.-6 Awaneesh Dwivedi (I.O. of
Case Crime No. 143 of 2014).

12. After the closure of prosecution
evidence, statement of all the accused were
recorded under Section 313 Cr.P.C. The
accused/appellant denied the commission of crime
and stated that due to village party bandi, he was
falsely implicated in the present case. The other
co-accused also denied the commission of crime.

13. The accused-appellant Ajay was
convicted by the Trial Court under Sections 302,
452 IPC and Section 25/27 of the Arms Act and
was acquitted from rest all other charges. The coaccused Radha Devi, Geeta and Vijay were
acquitted from all the charges by the Trial Court.

14. The accused/appellant Ajay Kumar after
having been convicted under Sections 302, 452,
IPC and Section 25/27 of Arms Act preferred the
present Criminal (Capital) Appeal challenging the
Judgement and Order dated 04.04.2019. A Death
Reference No. 02 of 2019 has also been filed
under Section 366 Cr.P.C. for the confirmation of
death sentence.

15. At the outset, learned counsel for the
accused-appellant argued that during the trial
proceedings, reasonable opportunity was denied to
the defence to cross-examine the prosecution
witnesses. Though application (63Kha) was
moved to recall P.W.-1 and P.W.-2 for cross
examination, but it was rejected by the learned
Trial Court. It was also argued that the compliance
of section 309 Cr.P.C. was not done.

16. Referring to the order-sheet recorded by
the Trial Court, it transpires that only two
witnesses of fact were examined i.e. P.W.-1, Ram
Pratap Awasthi (informant/Father/Eye Witness)
and P.W.2, Smt. Shashi Prabha, (Mother/Eye
Witness).

17. The examination-in-chief of PW-1 Ram
Pratap Awasthi (father of the deceased/first
informant) was recorded on 1.10.2016. The ordersheet shows that PW-1 was examined as a witness
by the prosecution and his examination-in-chief
was recorded on 1.10.2016. PW-1 in his statement
has stated that the incident is of 10.10.2014 at
about 6.30 in the evening when he was at home
and talking to Prabhakant Dubey, Ravish Kumar
Tiwari and his fourteen year old young daughter
was studying in the courtyard. It was at this stage
that the accused Ajay Kumar Kori entered the
house and fired on the deceased by a countrymade pistol on her chest. Hearing the voice,
near-by residents also came to the house.
Although the witness tried to apprehend him
but on account of country-made pistol as well
as threat rendered to him by his wife,
mother Radha Devi and brother Vijay, the
accused could flee from the place of
occurrence. PW-1 further stated that the
accused/appellant
used to
harass his
daughter and often stalked her. This fact
was disclosed by the deceased on which he
had scolded the accused but the accused
extended threats and said that he would
take away his daughter and would kill him.
With an intent to save the prestige of the
family, he had not reported the incident to
the police. The deceased, consequently,
stopped going to school and the witness
1330 INDIAN LAW REPORTS ALLAHABAD SERIES
was looking after her. It is for this reason
that the accused committed the murder of
the deceased. He had got the written report
scribed by Awadesh Kumar, and has proved
it, which got marked as Ex.Ka.1. He has
further disclosed that the police came on
the spot and inquest was conducted
whereafter
the
body
was
sent
for
postmortem. His statement was recorded
under Section 161 Cr.P.C. PW-1 also
showed the spot where the incident
occurred. The cross examination of the
PW-1 was deferred on an application for
adjournment moved on behalf of the
defence. The order-sheet clearly shows that
the accused was present in the court on
1.10.2016. The case was adjourned to
6.10.2016.

18. On 6.10.2016, the accused was
produced from the jail who refused to put
his signatures. Co-accused Geeta Devi was
present. The witness i.e. PW-1, however,
was not present. Summons were thus issued
to the witness fixing 21.10.2016 as the
date.

19. On 21.10.2016 also the accused
was produced from the jail but he did not
incorporate his signatures. PW-1 was
present. The matter, however, was deferred
to
7.11.2016.
The
order-sheet
dated
21.10.2016 is reproduced hereinafter:-

21.10.16

"पुकार पर अप्रियुक्त अजय प्रजला कारागार से जेरे
प्रहरासत हाप्रजर आया। प्रक्तु आदेश तक हस्ताक्षर िही प्रकये। साक्षी
रामिताप अवस्थी हाप्रजर आये। शेर् अप्रियुक्ता गीता देवी, रार्ा देवी
जेरे जमाित हाप्रजर आये।

पत्रावली वास्ते शेर् साक्ष्य प्रदिांक 7.11.16 को पेश हो।"

20. From the perusal of the ordersheet of 21.10.2016, it appears that no
proceedings were conducted and it is even
doubtful whether the witness was put to
cross examination. For further evidence the
matter was deferred to 7.11.2016.

21. On 7.11.2016 again the accused
was produced from the jail but he denied
making signatures on the order-sheet. The
witness i.e. PW-1 was again not present and
the court passed an order for summoning of
the witness. This is clearly reflected from
the order-sheet of 7.11.2016. The ordersheet
dated
7.11.2016
is
reproduced
hereinafter:-

07.11.16

"पुकार पर अप्रियुक्त अजय प्रजला कारागार से
उपप्रस्थत आया लेप्रकि हस्ताक्षर करिे से मिा प्रकया अप्रियुक्त प्रवजय
की हा० मा० जररये अप्रर्० माि। अप्रियुक्ता गीता देवी व रार्ा देवी
जमाित पर उपप्रस्थत है। साक्षी अिु० साक्षी तलव हो।

पत्रावली वास्ते साक्ष्य प्रदिांक 21.11.16 को पेश हो।"

22. On 21.11.2016 the accused was
again produced from the jail. Application
for adjournment was allowed by imposing
a cost of Rs.1,000/-. From the perusal of
order-sheet dated 21.11.2016 it is not clear
as to whether the witness was even present
on that day or not? There is no mentioning
in the order-sheet about the presence of
PW-1. The order-sheet dated 21.11.2016 is
thus reproduced hereinafter:-

21.11.16

"पुकार पर अजय प्रजला कारागार से जेरे प्रहरासत
हाप्रजर आया। अप्रियुक्त प्रवजय की ओर से 26ख प्रदया गया सुिा
स्वीकृत। शेर् अप्रियुक्त गण गीता, रार्ा देवी हाप्रजर आयी। अप्रियुक्त
की ओर से स्थगि िा० पत्र 27ख वास्ते प्रजरह हेतु अ्य प्रतप्रथ
प्रदलाये जािे के प्रलए प्रदया था।

आदेश हुआ Heard. Approved.

Allowed Rs. One thousand according
Cost be deposited to the Gov. Account.

Put up on 5.12.16
2 All. Ajay Kumar Vs. State of U.P.
1331

ह० अपठिीय

ASJ/FTC I"

23. On 5.12.2016 the accused was
produced from the jail. PW-1 was present.
Defence, however, did not examine the
witness. Trial court noticed that the
examination-in-chief was conducted on
1.10.2016 and the defence was deliberately
not cross-examining the witness. The
witness also informed that he had been
extended threats. It is at this stage that the
right to cross-examine PW-1 was forfeited
and the proceedings were adjourned to
21.12.2016.
The
order-sheet
dated
5.12.2016 is reproduced hereinafter:-

05.12.16

"सत्र परीक्षण पेश हुआ पुकार कराई गई अप्रियुक्त
अजय जेर प्रहरासत जेल से हाप्रजर आया। अप्रियुक्ता रार्ा देवी की
हाप्रजरी मािी िाथषिा पत्र केवल आज के प्रलए स्वीकृत।
अप्रियुक्तगण गीता व प्रवजय जेर जमाित हाप्रजर आए, गवाह राम
िताप अवस्थी (PW-1) हाप्रजर आया। ििाव पक्ष द्वारा प्रजरह
िहीं की गई। गवाह राम िताप अवस्थी की मुख्य परीक्षा
प्रद०01/10/16 को अंप्रकत की गई है और ििाव पक्ष द्वारा
जाििूझ कर प्रजरह िहीं की जा रही है। समय 03 िजकर 22 प्रमिट
हो रहा है। कोई स्थगि िाथषिा पत्र िी िही प्रदया गया। गवाह राम
िताप अवस्थी द्वारा कहा गया प्रक उसे जाि से मारिे की र्मकी
मुप्रल्जमाि की ओर से दी जा रही है। गवाह PW-1 श्री राम िताप
अवस्थी से ििाव पक्ष का प्रजरह का अवसर समाि प्रकया जाता है।
पत्रावली प्रद०21/12/16 वास्ते शेर् साक्ष्य पेश हो।"

24. From the proceedings of the trial,
it is clearly reflected that the examinationin-chief of PW-1 was held on 1.10.2016.
The cross-examination on that day was
deferred on the prayer of the defence. On
6.10.2016 and 7.11.2016, PW-1 was not
present and, therefore, the question of his
cross-examination on these two dates
would not arise. In the order-sheet of
21.10.2016 there is no mention that the
witness
was
produced
for
crossexamination or that the defence failed to
cross-examine him. On 21.11.2016 also it is
not clear as to whether the witness was
present in court or not. On 5.12.2016 the
right
to
cross-examine
PW-1
was
nevertheless forfeited. On the date when
the witness was present, the defence did not
cross-examine him on the plea that their
lawyer Saurabh Pathak was engaged in
some other matter.

25. There is nothing on record to
show that the accused was warned by the
court that if his lawyer fails to crossexamine the witness then his testimony
would be read against him. The trial court
also made no endeavours to offer the
services of an Amicus Curiae, who could
have
conducted
cross-examination
on
behalf of the accused. The accused was also
not informed that he could himself crossexamine PW-1 if he so wishes. The ordersheet reveals that though the right of crossexamination was forfeited by the trial court
on 5.12.2016 but the proceedings were
routinely adjourned and the next witness
i.e. Shashi Prabha (PW-2), who happens to
be the mother of the deceased was
produced in evidence on 7.5.2018.

26. The testimony of PW-2 has been
produced before us as per which the
incident occurred at about 6.30 PM when
the witness was cooking food and her
husband (PW-1) was sitting with villagers
Prabhakant
and
Ravish
Kumar.
Her
daughter aged fourteen years was studying
in the courtyard. It is at this stage that the
accused entered the house and shot at the
chest of his young daughter with a countrymade
pistol.
Hearing
the
gunshot,
neighbours from the locality rushed to the
spot. Effort was made to apprehend the
accused but he fled. PW-2 also stated that
her daughter was harassed by the accused
on account of which she had stopped going
1332 INDIAN LAW REPORTS ALLAHABAD SERIES
to the school. The accused felt annoyed and
maintained enmity for such reasons. On
7.5.2018 both the counsels of accused did
not turned up to cross-examine PW-2. The
right of cross-examination on that day itself
was forfeited. For the remaining evidence,
the matter was deferred to 12.6.2018. The
accused undisputedly was present in court.
The part of the order-sheet dated 7.5.2018
is reproduced hereinafter:-

"x x x x x x x x x x x

अप्रियुक्तगण के दोिो प्रवद्वाि अप्रर्वक्ताओं को सूििा दी
गयी पर्तु प्रवद्वाि अप्रर्वक्ता गण िप्रतपरीक्षा हेतु िहीं आये। अतः
अवसर समाि प्रकया जाता है।

कोटष सप्रटषप्रिकेट सुिकर तस्दीक प्रकया।

ह०
अपठिीय
ह० अपठिीय

ए०डी०जे०-1
औरैया
ए०डी०जे०-1 औरैया
 07.5.18
07.5.18

ह० शप्रशििा"

07.05.2018:-

"पुकार पर अप्रियुक्तगण जेल से हाप्रजर आये। साक्षी श्रीमती
शप्रश ििा उपप्रस्थत आयी PW-2 अंप्रकत प्रकया गया। पत्रावली
वास्ते शेर् साक्ष्य प्रदिांक 12/6/18 को पेश हो। शेर् साक्षी तलि हो।

ह० अपठिीय

ADJ I Au."

27. From the order-sheet, it is clear that
PW-2 was not examined since the two lawyers
of accused failed to turn up. There is nothing in
the order-sheet to show that any legal aid was
offered to the accused or he was told about his
right to cross-examine the witness.

28. During the course of arguments,
learned counsel for the accused/appellant
carried our attention to the application 63 (Kha)
dated 15.03.2019 which was moved by the
defence seeking permission for the crossexamination of P.W.-1/first informant, on the
ground, that their opportunity of crossexamining the prosecution witnesses was
closed. The order-sheet of the Trial Court is as
follows:-

Order dated 15.03.2019:-

"पुकार पर अप्रियुक्तगण हाप्रजर आये। अप्रियुक्तगण के अप्रर्वक्ता
िे 63ख िा०पत्र वादी से प्रजरह करिे की अिुमप्रत हेतु प्रदया।

P.O. महोदय के्रीय िजारत के वाप्रर्षक मुआइिे में व्यस्त है।

सत्र परीक्षण वास्ते सुिवाई 63 ख िा०पत्र व साक्ष्य 313
CrPC प्रदिााँक 25-3-19 को पेश हो।

ह० अपठिीय

S.J. Auraiya"

29. On 25.3.2019, the application for
recall of witness was considered and rejected by
the court below vide following orders:-

25.03.2019:-

"पत्रावली पेॆ श। अप्रियुक्तगण उपप्रस्थत है।

आवेदि ६३ ख का प्रिस्तारणः-

यह आवेदि अजय कुमार आप्रद की ओर से इस आशय
का िस्तुत प्रकया गया है प्रक वादी मुकदमा से प्रजरह समाि कर दी गयी है,
इसप्रलए, वादी मुकदमा से प्रजरह का अवसर िदाि प्रकया जािा िाप्रहए।

सुिा तथा पत्रावली का अवलोकि प्रकया।

पत्रावली के अवलोकि से ज्ञात होता है प्रक यह पत्रावली
आज र्ारा 313 दं०प०सं० के ियािों में प्रियत है। वादी पी०डब्लू०-१
का ियाि प्रदिांक ०१.१०.२०१६ को दजष प्रकया गया। इस प्रतप्रथ को
इस साक्षी से प्रजरह करिे के प्रलए कोई अप्रर्वक्ता उपप्रस्थत िहीं हुए,
इसप्रलए प्रजरह का अवसर समाि प्रकया गया। इस िकार दो वर्ष से
अप्रर्क अवप्रर् व्यतीत हो जािे के िाद यह आवेदि िस्तुत प्रकया
गया है, जो जाप्रहर करता है प्रक अप्रियुक्तों का उद्देश्य प्रविारण में देरी
काररत करिे का है। अ्यथा र्ारा 313 दं०प०सं० के अ्तगषत
प्रियत हो जािे के पूवष िी इस िकृप्रत का आवेदि िस्तुत प्रकया जा
सकता था। आवेदि में यह तथ्य अंप्रकत िहीं है प्रक प्रियत प्रतप्रथ को
साक्षी से प्रजरह क्यों िहीं की जा सकी। अतः आवेदि में प्रजरह ि कर
सकिे का कारण िहीं दशाषया गया है, ्यायालय द्वारा साक्षी से प्रजरह
का पयाषि अवसर िदाि प्रकया गया है। आवेदि में कोई कारण दप्रशषत
ि करिे के कारण यह प्रिष्कर्ष प्रदया जािा समिव िहीं है प्रक क्या
यथाथष में ऐसा कारण मौजूद था, प्रजसकी वजह से अप्रियुक्तों द्वारा
2 All. Ajay Kumar Vs. State of U.P.
1333
पी०डब्लू०-१ से प्रजरह िहीं की जा सकी। अतः इस प्रस्थप्रत में
आवेदि ६३ख स्वीकार िहीं प्रकया जा सकता है। तदिुसार आवेदि
खाररज प्रकया जाता है। र्ारा ३१३ दं०प०सं० के अ्तगषत ियाि दजष
प्रकये जाये।

ह० अपठिीय

सत्र ्यायार्ीश,

औरैया"

30. PW-1 and PW-2 were the only
two witnesses of fact produced by the
prosecution. Their testimony forms the
basis of conviction and sentence awarded
to the accused. Denial of cross-examination
of these two witnesses had serious adverse
consequences for the accused. Crossexamination otherwise confers a valuable
right upon the accused to challenge the
credibility of witness and also test the
veracity of their statement. Right of crossexamination cannot be taken away unless a
fair opportunity is given to the accused to
defend himself. Whether or not such fair
opportunity has been given to the accused
appellant in this case is the core question to
be answered by us.

31. In order to consider the issue
raised we may gainfully refer to the
provisions contained in Section 309 and
231 Cr.P.C. which throw light on the
manner in which a fair trial is to be
conducted. Section 309 Cr.P.C. empowers
the court to postpone or adjourn the
proceedings. Sub-section 2 of Section 309
Cr.P.C. allows the court jurisdiction to
postpone
the
commencement
of,
or
adjourn, any inquiry or trial, from time to
time for reasons to be recorded. The
proviso to it stipulates that the remand of
accused shall not exceed fifteen days at a
time; provided further that witness are in
attendance,
no
adjournment
or
postponement shall be granted without
examining them, except for special reasons
to be recorded in writing. The statute,
however, provides that no adjournment
would be granted at the request of a party
unless the circumstances are beyond the
control of that party. The fact that pleader
of a party is engaged in another court is
expressly excluded as a ground for
adjournment. Power is also vested in the
court to record the statement of witness if
the party or his pleader is either not present
or even though present is not ready to
examine or cross-examine the witness. In
such an event the court also has the power
to dispense with the examination-in-chief
or cross-examination of a witness, as the
case may be. Section 231 Cr.P.C. of the
Code, moreover, states that on the date
fixed for the evidence of prosecution the
Judge shall proceed to take all such
evidence as may be produced in support of
the prosecution. Sub-section 2 of Section
231 Cr.P.C. vests discretion in the Judge to
defer cross-examination until other witness
or witnesses have been examined or recall
the witness for further cross-examination.

32. Upon a perusal of the order-sheet
we have already noticed that on the date of
examination-in-chief of PW-1 and PW-2,
the defence lawyer did not cross-examine
them. Right of cross-examination was
forfeited in respect of PW-2 on the very
day when her examination-in-chief was
recorded.
In
respect
of
PW-1,
the
proceedings were adjourned to 6.10.2016
but on that day the witness himself was not
present. On 21.10.2016 though PW-1 was
present but the order-sheet nowhere records
that the witness was produced for crossexamination and there was a failure on part
of the defence to cross-examine him. On
7.11.2016 though PW-1was again not
present and, therefore, it cannot be assumed
that there is a failure on part of the defence
to examine PW-1. On 21.11.2016 the
1334 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings were adjourned on the request
of defence by imposing a cost of Rs.1,000/-
. It is not clear as to whether the witness
was not available for cross-examination in
court. On 5.12.2016 the right of crossexamination of PW-1 was forfeited after
noticing his statement that threats are being
extended to him.

33. The order-sheet clearly reveals
that PW-1 and PW-2 both were present for
cross-examination but they were not crossexamined by the defence. The adjournment
applications on record merely state that
counsel for the defence was engaged
elsewhere. Section 309 Cr.P.C. stipulates
that engagement of pleader in another court
cannot be a ground for adjournment.

34. The exercise of jurisdiction vested
in the trial court to dispense with the crossexamination of an important witness, on
account of failure on part of the lawyer to
cross-examine the witness has to be
examined in the context of valuable right of
accused to cross-examine such witness. We
cannot loose sight of the fact that accused
often are not familiar with the procedures
to be followed in a court of law or the
consequences which may result on account
of failure on part of his lawyer to crossexamine an important witness. The socioeconomic conditions of the accused is also
required to be kept in mind. Incalculable
harm can be caused to an accused on
account of incompetence on part of the
lawyer. In this case the accused is to be sent
to the gallows relying upon the testimony
of the two witnesses who were never crossexamined on account of abdication of
duties by the lawyer. We have also gone
through the original records and find that
various questions were available to the
defence counsel for cross-examining the
two witnesses of fact but those questions
were never put. Since we are not inclined to
make any observations regarding the merits
of the case as such we refrain from
elaborating any further on this aspect.

35. Hon'ble Supreme Court in Munna
Pandey vs. State of Bihar 2023 SCC
OnLine SC 1103 has quoted with approval
Harry Browne to state that "A fair trial is
one in which the rules of evidence are
honored, the accused has competent
counsel, and the judge enforces the proper
court room procedures - a trial in which
every assumption can be challenged."

(emphasis supplied by us)

36. Availability of a competent
counsel is thus of critical importance in a
fair trial. The rights of an accused cannot
be protected if the lawyer is either not
available or fails to act with due diligence.
It is in this context that the courts have
recognized the right in an accused to be
defended by a competent lawyer. In a case
where services of a lawyer are not available
to the accused the court can appoint an
Amicus Curiae to protect his right. In the
context of hearing of a criminal appeal, the
Supreme Court in Kabira vs. State of U.P.
1981 (Supp) SCC 76 held that dismissal of
criminal appeal in default would not be a
proper disposal. The court held that if the
appellant was not present, the learned
Judge should have appointed a lawyer as
Amicus Curiae and then proceed to dispose
of the appeal on merits. The following
passages of the judgment of Kabira (supra)
is extracted hereinafter:-

"We are, therefore, of the view that
there has not been a proper disposal of the
appeal preferred by the appellant. The
appeal could not be dismissed by the
learned Judge for default of appearance. If
the appellant was not present, the learned
2 All. Ajay Kumar Vs. State of U.P.
1335
Judge
should
have
appointed
some
advocate as amicus curiae and then
proceeded to dispose of the appeal on
merit."

37. Recently in K. Muruganandam &
Ors. vs. State of Rep. By the Deputy
Superintendent of Police & Anr. 2021 SCC
OnLine SC 690 the Court reiterated the
observations made in Kabira (supra) in para
8 of their Lordships judgment which is
reproduced hereinafter:-

"8. ........if the accused does not
appear through counsel appointed by
him/her, the Court is obliged to proceed
with the hearing of the case only after
appointing an amicus curiae, but cannot
dismiss the appeal merely because of nonrepresentation or default of the advocate
for the accused."

38. In Shaik Mukthar and Another vs.
State of Andhra Pradesh (Now State of
Telangana), (2020) 19 SCC 178 wherein it
has been held that:

"It is by now well settled by a
catena of judgments such as the decision of
this Court in Rakesh & Anr. V. State of
Madhya Pradesh, 2011 (12) SCC 513, that
it is in the interest of justice to appoint an
amicus curiae to assist the court where the
accused is unrepresented. The Court may
also refer the matter to the Legal Services
Committee, which may appoint an advocate
to represent the accused."

39. Learned Single Judge of this
Court in Maneesh Pathak vs. State of U.P.
2023 SCC OnLine All 64 has emphasized
the importance of personal liberty to
observe that protection of liberty is the
crown of the court processes. In the event
of non-appearance of a prisoner's counsel
the court may appoint an Amicus Curiae to
proceed with the hearing of the matter. In
Munna Pandey (supra) the Court has
reiterated that free and fair trial is sine-quanon of Article 21 of the Constitution of
India. The importance of a free and fair
trial has been emphasized in following
words:-

"Free and fair trial is sine-quanon of Article 21 of the Constitution of
India. If the criminal trial is not free and
fair, then the confidence of the public in the
judicial fairness of a judge and the justice
delivery system would be shaken. Denial to
fair trial is as much injustice to the accused
as to the victim and the society. No trial
can be treated as a fair trial unless there is
an impartial judge conducting the trial, an
honest, able and fair defence counsel and
equally honest, able and fair public
prosecutor. A fair trial necessarily includes
fair
and
proper
opportunity
to
the
prosecutor to prove the guilt of the accused
and opportunity to the accused to prove his
innocence."

(emphasis supplied by us)

40. In Rahul vs. State of Delhi
Ministry of Home Affairs & Anr. (2022)
Supreme
(SC)
1136
the
Court
has
emphasized the importance of the role to be
played by a Judge in a criminal appeal.
Referring to Section 165 of the Indian
Evidence Act, 1872 the Court made
following observations:-

"The Court is constrained to
make these observations as the Court has
noticed
many
glaring
lapses
having
occurred during the course of the trial. It
has been noticed from the record that out of
the
49
witnesses
examined
by
the
prosecution, 10 material witnesses were not
cross-examined and many other important
1336 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses were not adequately crossexamined by the defence counsel. It may be
reminded that Section 165 of the Indian
Evidence Act confers unbridled powers
upon the trial courts to put any question at
any stage to the witnesses to elicit the truth.
As observed in several decisions, the Judge
is not expected to be a passive umpire but is
supposed to actively participate in the trial,
and to question the witnesses to reach to a
correct conclusion. This Court while not
accepting the submission that it was
improper for the Court to have interjected
during the course of cross-examination of
the witness, had observed in the case of
State of Rajasthan vs. Ani alias Hanif and
Others, (1997) 6 SCC 162 thus:

We are unable to appreciate the
above criticism. Section 165 of the
Evidence Act confers vast and unrestricted
powers on the trial court to put "any
question he pleases, in any form, at any
time, of any witness, or of the parties, about
any fact relevant or irrelevant" in order to
discover relevant facts. The said section
was framed by lavishly studding it with the
word "any" which could only have been
inspired by the legislative intent to confer
unbridled power on the trial court to use
the power whenever he deems it necessary
to elicit truth. Even if any such question
crosses into irrelevancy the same would not
transgress beyond the contours of powers
of the court. This is clear from the words
"relevant or irrelevant" in Section 165.
Neither of the parties has any right to raise
objection to any such question."

41. Applying the principles relating to
conduct of a fair trial in the facts of the
present case we find that the Court of
Sessions has not adequately protected the
right of the accused who has been denied a
fair trial in the matter. In the event the court
intended to forfeit the right of crossexamination of the accused it ought to have
alarmed the accused of the consequences
which were to follow if the witnesses were
not being cross-examined. The Court was
also enjoined to offer an opportunity to the
accused either to cross-examine the witness
himself or to offer him the services of an
Amicus Curiae so that the witness could be
cross-examined.
Unless
adequate
opportunity is offered to the accused to
defend himself in a fair trial his conviction
and sentence cannot be approved of in a
country governed by rule of law. There is
nothing on record to show that the trial
Judge ever informed the accused of the
consequences which were to befall on him
on account of failure to cross-examine PW1 and PW-2 nor the accused was extended
the opportunity of legal aid by providing
him an Amicus Curiae. The accused was
also not informed of his right to crossexamine his witness if his lawyer was not
available, before the testimony of PW-1
and PW-2 could be relied upon against the
accused.

42. For the above reasons, we cannot
confirm the death sentence awarded to the
accused in the matter.

43. For all the afore-stated reasons, in
the interest of justice and fair trial as well
as taking all the circumstances collectively,
we are of the considered view that the
matter be remitted back to the Trial Court
with a direction to afford the accusedappellant a fresh opportunity to crossexamine
the
prosecution
witnesses
(witnesses of fact) i.e. P.W.-1 and P.W.-2
within a period of three months in
accordance
with
law.
The
reference
submitted by the Trial Court is hereby
rejected. The impugned Judgment and
Order dated 04.04.2019 passed by learned
Sessions Judge, Auraiya convicting and
2 All. Manvir Singh & Ors. Vs. State of U.P.
1337
sentencing the accused/appellant is hereby
set aside.

44. The matter is remitted back to the
Trial Court for necessary compliance as
discussed herein above.

45. The Trial Court shall provide an
appropriate Advocate to the accusedappellant, in case the appellant does not
make
any
arrangement
for
their
representation.

46. We also direct the Trial Court to
make all sincere effort to conclude the trial
in accordance with law, expeditiously
within a period of six months from the date
of receipt of the certified copy of this
judgment.

47. It is made clear that we have not
expressed any opinion on the merits of the
case.

48. We record our appreciation for the
able assistance rendered to us by the
Amicus Curiae, who would be entitled to
his fee as per the rules of the High Court
Legal Services Committee.

49. Copy of this Judgment along with
the Trial Court record be sent back.
----------
(2024) 2 ILRA 1337
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 379 of 1983

Manvir Singh & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri S.P.S. Raghav, Sri A. Misra, Sri Alok Ranjan
Mishra, Sri Apul Misra,Sri P.N. Misra, Sri
Rajendra Prasad Dubey,Sri Gopal Swaroop
Chaturvedi (Sr. Advocate)

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections
302/34,
307/34
&
323
-
Appellants challenged conviction under Sections
302/34 and 307/34 I.P.C. for murder of Yashpal
and attempt to murder Naresh, arising from
boundary dispute. Court held: (1) Incident
stemmed
from
sudden
altercation
over
boundary
marks;
appellants
used
spades
(agricultural tool) without premeditation or
intent to kill (Virsa Singh Vs St. of Punj., AIR
1958 SC 465). (2) Injuries on deceased
(incised/lacerated wounds on head, fractured
skull) caused death by shock and haemorrhage,
but no vital organ targeted; intent was to
assault, not murder (Pulicherla Nagaraju Vs St.
of A.P., (2006) 11 SCC 444). (3) Knowledge that
assault with sharp-edged spade could cause
death present, but no intention for such injury;
offence under Section 304 Part I I.P.C., not
Section 302 (Kesar Singh Vs St. of Har., (2009) 3
SCC (Cri) 1193). (4) Appellant No. 4 (Brijesh)
caused simple injury to Risalo (mother of
deceased)
by
pulling
hair
and
pushing;
conviction under Section 323 I.P.C. upheld. (5)
Sentence reduced to 10 years' R.I. for
appellants Nos. 1-3; fine of Rs. 500/- for
appellant No. 4 affirmed. Judgment modified;
appellants Nos. 1-3 to surrender within one
month. (Paras 30-58)

Appeal Partly Allowed.

Case Law Cited:

1. Virsa Singh Vs St. of Punj., AIR 1958 SC 465
(Para 45)

2. Pulicherla Nagaraju Vs St.