The importance of complete cross-examination in criminal cases and the reliance on the provisions of the Evidence Act, 1872 in evaluating the sufficiency of evidence.

Headnote:
Cross-Examination - Criminal Law - Evidence Act, 1872 - Sections 137, 138 - The court set aside the conviction of the appellant under Section 376 AB and Section 5(m)/6 POCSO Act, as the prosecution failed to produce the victim for complete cross-examination, which severed the root of the prosecution case. The court relied on the provisions of the Evidence Act, 1872 and emphasized the importance of complete cross-examination in reaching its decision.
Fact of the Case:
The appellant was convicted under Section 376 AB and Section 5(m)/6 POCSO Act for raping a two and a half-year-old girl. The prosecution's case rested on the testimony of the victim, but the appellant's counsel argued that the victim's cross-examination was incomplete, and the other witnesses did not corroborate her testimony.
Finding of the Court:
The court found that the conviction solely based on the testimony of the victim was illegal, as the prosecution failed to produce the victim for complete cross-examination, severing the root of the prosecution case.
Issues: The issues revolved around the sufficiency of evidence and the importance of complete cross-examination in criminal cases.
Ratio Decidendi: The court emphasized the importance of complete cross-examination in criminal cases and relied on the provisions of the Evidence Act, 1872 to set aside the conviction.
Final Decision: The jail appeal was allowed, and the judgment and order of the trial court were set aside. The appellant was ordered to be released from jail forthwith if not wanted in any other case.

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. 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 rem

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