Judgment SHIV KUMAR SHARMA, J. ( 1 ) THE appellant was the accused in Sessions Case No. 75 of 1993 on the file of the Additional Sessions Judge, Kishangarh Bas (Alwar ). He was found guilty under S. 302, IPC, convicted thereunder and sentenced to imprisonment for life and fine of Rs. 1,000/- (in default of payment of fine to further undergo one years rigorous imprisonment ). ( 2 ) AGGRIEVED by the conviction and sentences the action for filing an appeal has been resorted to. ( 3 ) BRIEF facts are :- (I) That on 5-6-1993, one Lekh Ram s/o Bhikkan Ram of village Saidpur Bhivadi (Alwar) instituted a written report (Ex. P/1) at Police Station Kot Kasim, District Alwar, stating therein that in the morning he received information about the death of his daughter Babita, who was married in village Dugehda. He reached Dugehda and found his daughter dead under suspicious circumstances. His daughter was killed by strangulation by her husband Randhir, mother in law Sushila and sister in law (Nanad) Jagriti, who used to harass and humiliate her in connection with demand of dowry. The incident of murder was taken place at 4. 30 a. m. (II) Case under S. 304-B of the Indian Penal Code was registered and FIR No. 73 of 1993 was chalked out and investigation commenced. (III) The investigating officer submitted chargesheet against Randheer and Sushila under S. 302/34 I. P. C. to the Court of Additional Chief Judicial Magistrate Kishangarh Bas (Alwar) on 16-9-1993 from where the case was committed to the trial Court. (IV) The trial Court vide order dated 22-10-93 discharged Smt. Sushila but framed charge under S. 302, IPC against Randheer appellant. The appellant denied charges and claimed trial. (V) The prosecution examined as may as 22 witnesses and produced about 17 documents. Statement of appellant was recorded under S. 313 of the Code of Criminal Procedure in which the appellant stated that prosecution witnesses implicated him falsely. The night when the incident had taken place, he was throughout in the house of Ranjeet. (VI) The appellant produced two witnesses in support of his defence. (VII) The trial Court has however in consideration of evidence, recorded the order of conviction and passed the sentence mentioned hereinabove. ( 4 ) AT the outset it may be mentioned that entire case of the prosecution is based on circumstantial evidence. (VI) The appellant produced two witnesses in support of his defence. (VII) The trial Court has however in consideration of evidence, recorded the order of conviction and passed the sentence mentioned hereinabove. ( 4 ) AT the outset it may be mentioned that entire case of the prosecution is based on circumstantial evidence. Three sets of the evidence were available to the prosecution. The first set was the medical evidence of Dr. D. K. Gupta (PW 14) and Dr. B. D. Gurnani (PW 15 ). According to them deceased had died on account of asphyxia caused by throatling. The second set was the evidence of the witnesses from defence service namely. Anurag viz. (PW 18 ). Ashok (PW 19) and Ram Vishal Pandey (PW 20) before whom the appellant had made written confession of his guilt, and the third set was the evidence of family members of the deceased. ( 5 ) DURING the course of arguments the learned Public Prosecutor submitted two applications under the provisions of S. 391, Cr. P. C. read with S. 482 of the Code of Criminal Procedure for recording additional evidence. Mr. R. K. Mathur, learned counsel for the appellant vehemently contested the applications and filed replies in detail. ( 6 ) LET us examine the nature of "confession", said to have been made by the appellant and how it was dealt with by the investigating officer and the public prosecutor conducting trial of the case. Following facts are necessary to keep in mind for the proper appreciation of the conduct of the prosecuting agency :- (I) Randheer - the appellant handed over his written confession as well as two statements written by his uncle Babu Lal Sharma and his younger brother Srichand. In front of Subedar Vijay Prakash on 7-6-1993 and 8-6-1993. Confession made by the appellant is being reproduced :"main N0. 14404007 LTA RANDHEER SHARMA 18 MAY 93 KO CHHUTTI GAYA 20 TARIKH KO SASURAL GAYA TAB MAINE DEKHA KI USKA SAMBANDH EK ADMI SE HAI. GHAR LAKAR DIAINE PUCHHA LEKIN BATANE SE INKAR KAR DIYA. BATAYA KI AISA TO PEHLE SEHI THA. MAIN 2 JUNE TAK PUCHHTA RAHA LEKIN NAHIN AGE KUCHH NAHIN BATAYA. 14404007 LTA RANDHEER SHARMA 18 MAY 93 KO CHHUTTI GAYA 20 TARIKH KO SASURAL GAYA TAB MAINE DEKHA KI USKA SAMBANDH EK ADMI SE HAI. GHAR LAKAR DIAINE PUCHHA LEKIN BATANE SE INKAR KAR DIYA. BATAYA KI AISA TO PEHLE SEHI THA. MAIN 2 JUNE TAK PUCHHTA RAHA LEKIN NAHIN AGE KUCHH NAHIN BATAYA. 4 JUNE KO RAT 2 AND 3 BAJE KE SAMAY MAINE HATH PER BANDH KAR CHARPAI PAR GALA DABA DIYA AUR PHIR KAMRE SE BAHER LAYA AUR BATAYA KI CHHAT SE GIR KAR MAR GAI AUR 10 BAJE MAIN 5 JUNE KO GHAR SE BHAG KAR AA gaya 7 JUNE KO RAT KO UNIT MAIN AA GAYA. RANDHEER SHARMA 1440447l (I No. 14404007 LTA Randheer Sharma had gone on leave on 18th May 1983. When I went to my "in laws" house on 20th, I suspected her relations with another man. I took her to my house and questioned her about the person, she refused to reveal initially but confessed afterwards that the said relationship was from the very beginning. I questioned her continuously till 2nd June but she did not reveal anything. On 4th June between 2 and 3 a. m. I tied her on the cot and throatled her then I took her outside and told that she died on account of fall from the roof. On 5th June at 10 a. m. I left the house and in the night of 7th June I joined the unit. Randheer Sharma 14404007l" (II) Anurag Vij Lieut Adjutant wrote a letter dated 9-6-93 after termination of casual leave granted from 20-5-93 to 8-6-93 and he reported to this unit that he had murdered his wife Smt. Babita Devi during said leave. This letter was exhibited as Ex. P. 16 in the trial Court. (III) Anurag Vij vide letter dated 19-6-93 forwarded statements written by the appellant, Babu Lal and Srichand in the presence of J. C.-186467 sub Vijay Prakash on 7-6-93, to ASI Lallo Ram P. S. Kot Kasim (Alwar ). This letter was exhibited as Ex. P. 17 in the trial Court. (IV) Seizure Memo of all the three letters mentioned hereinabove, was prepared by ASI Lallu Ram on 19-6-93 in the presence of two motbirs Ashok Kumar and Ram Vishal. The seizure Memo was exhibited as Ex. P. 15 in the trial Court. This letter was exhibited as Ex. P. 17 in the trial Court. (IV) Seizure Memo of all the three letters mentioned hereinabove, was prepared by ASI Lallu Ram on 19-6-93 in the presence of two motbirs Ashok Kumar and Ram Vishal. The seizure Memo was exhibited as Ex. P. 15 in the trial Court. (V) The investigating officer during investigation took specimen of the hand writing of the appellant in fast speed, medium speed and slow speed in the presence of Sub-Divisional Magistrate, Kishangarh Bas (Alwar ). Specimen of hand writings of Babu Lal Sharma and Srichand were also taken in the same manner before the Magistrate. (VI) The original letters written by the appellant. Babu Lal Sharma and Srichand as well as the specimens of their writings were sent to State Forensic Science Laboratory, Rajasthan, Jaipur by the investigating officer which were received at the laboratory on 13-9-93. (VII) The investigating officer submitted charge-sheet on 16-9-93 before the ACJM Kishangarh Bas. The original letters and the specimen of the handwritings could not be formed part of the charge-sheet as they were sent for the hand writing examination. (VIII) A. P. P. submitted an application with F. S. L. report on 16-6-94 in the trial Court and requested the court to place the said report on record. On 8-8-94 a copy of the F. S. L. report was supplied to the counsel of the appellant and the trial Court allowed the application of the A. P. P. submitted on 16-6-94. (IX) Informant Lekh Raj on 16-9-94 submitted an application to examine Dr. T. S. Kapoor, Assistant Director (Documents) F. S. L, Jaipur, A. P. P. however did not press the said application and it was dismissed as not pressed vide order of the trial Court dated 21-12-94. (X) Witnesses Lallu Ram (PW 17), Anurag Vij (PW 18), Ashok Kumar (PW 19), Ram Vishal Pandey (PW 20) and Nihal Singh (PW 21) were examined in the trial court on 8-8-94, 19-9-94, 19-9-94, 19-9-94 and 11-10-94 respectively. (XI) A. P. P. Sube Singh Yadav on 21-12-94 submitted an application with a packet consisting of original letters of the appellant, Babulal Sharma and Srichand and their specimens of hand writing with a request to keep the said documents on record. Copies of the said documents were handed over to the counsel for the appellant. (XI) A. P. P. Sube Singh Yadav on 21-12-94 submitted an application with a packet consisting of original letters of the appellant, Babulal Sharma and Srichand and their specimens of hand writing with a request to keep the said documents on record. Copies of the said documents were handed over to the counsel for the appellant. The trial court however did not pass any order on the application. The case was posted for recording the statements of the appellant under S. 313, Cr. P. C. and ultimately the conviction of the appellant was recorded. (XII) A perusal of complete order sheets on the file of the trial court reveals that application dated 21-12-94 was left undecided. ( 7 ) WE have given our anxious consideration to the arguments advanced by Mr. Mathur, the learned counsel for the appellant and Mr. Agrawal, learned Public Prosecutor for the State and examined the record minutely. ( 8 ) MR. R. S. Agrawal, the learned P. P. for the State has contended that the documents consisting the confession of the appellant and statements of Babu Lal Sharma and Srichand could not have been exhibited inadvertently as they were sent to the F. S. L. with the hand writing specimens of the appellant and the witnesses. These documents could only be produced in the court on 21-12-94, i. e. , after the examination of all the prosecution witnesses. The documents are the important piece of evidence upon which the entire case of prosecution is based. Exhibiting of these documents is necessary for the just decision of the case and for this purpose recalling of Nath Singh (PW 16) Lallu Ram (PW 17) Anurag Vij (PW 18) Ashok Kumar (PW 19) Ram Vishal Pandey (PW 20) and Nihal Singh (PW 21) is necessary in the interest of justice. Mr. Agrawal also submitted that Subedar Vijay Prakash of the Army Unit, could have been the important witness as to him only the appellant had handed over his written confession and the written statements of Babulal and Srichand, but the Investigation Officer did not cite him as witness in the charge-sheet. Recording of statement of this witness is also necessary in the interest of justice. ( 9 ) MR. R. K. Mathur, the learned counsel for the appellant has strongly opposed the contention raised by the learned Public Prosecutor. Recording of statement of this witness is also necessary in the interest of justice. ( 9 ) MR. R. K. Mathur, the learned counsel for the appellant has strongly opposed the contention raised by the learned Public Prosecutor. According to him the prosecution had ample opportunity to prove the documents and now such lacunae cannot be filled up by the prosecution as the same is prejudicial to the accused appellant. In support of his contention Mr. Mathur has placed reliance on Bir Singh v. State of U. P. , AIR 1978 SC 59 : (1978 Cri LJ 177); State of Rajasthan v. Mohan Lal, 1980 Raj LW 79 : (1980 Cri LJ NOC 107); Jasoda Nandan Mukarji v. The State, 1971 Cri LJ 1332 (Cal) and Shiva Balak v. State of Bihar, 1986 Cri LJ 1727 (Patna ). ( 10 ) AT the very outset while considering the arguments advanced. It will be necessary to examine the scope of S. 391 of the Code of Criminal Procedure, which reads as under :" (1) In dealing with any appeal under this chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct to be taken by a Magistrate, of when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this Section shall be subject to the provisions of Chapter XXIII, as "if it were an inquiry". ( 11 ) A look at S. 391, Cr. P. C. , reveals that in dealing with an appeal under Chapter XXIX of the Code, additional evidence may be recorded by the Appellate Court. ( 12 ) IN dealing with the provisions of S. 391 this Court in State of Rajasthan v. Mohan Lal, 1980 Raj LW 79 : (1980 Cri LJ NOC 107), has observed as under :"moreover, this is an appeal against the order of acquittal. ( 12 ) IN dealing with the provisions of S. 391 this Court in State of Rajasthan v. Mohan Lal, 1980 Raj LW 79 : (1980 Cri LJ NOC 107), has observed as under :"moreover, this is an appeal against the order of acquittal. The offence was committed as early as 1963 and the matter has been hanging for the last 17 years. Under these circumstances, we do not feel inclined to interfere on the appellate side against an order of acquittal. Before parting with this appeal we would definitely like to observe that the prosecuting agency should be toned up, and such lacunae should be avoided to reccur in future in criminal cases where the persons who have definitely committed offence get scot-free only because of technical lacunae. " ( 13 ) CALCUTTA High Court, in Jasoda Nandan Mukarji v. The State of West Bengal, 1971 Cri LJ 1332, held that in recording additional evidence it will be seen that lacunae in prosecution case cannot be filled up. Where due to negligence of the prosecution the medical officer who had examined the victim was not cited as a prosecution witness but instead a wrong medical officer had been summoned and the prosecution even after detecting the mistake on the last day closed its case without requesting the Magistrate to summon the medical officer concerned, the Sessions Judge in appeal against the conviction has no jurisdiction to direct the Magistrate under S. 428 to take additional evidence by examining such witness. ( 14 ) IN Shiv Balak v. The State of Bihar, 1986 Cri LJ 1727 (Patna), the court observed as under :"the language of S. 391 does not put any restriction on the power of the Court. But it is for the Appellate Court to decide whether in the interest of justice it is "necessary" to allow any party to give additional evidence. The word "necessary" has not been used in the Section to mean that this power should be exercised when it is impossible to pronounce judgment. The reception of additional evidence may be allowed when there is likelihood of failure of justice without it. The word "necessary" has not been used in the Section to mean that this power should be exercised when it is impossible to pronounce judgment. The reception of additional evidence may be allowed when there is likelihood of failure of justice without it. It is an exception to the general rule and the power conferred by this provision must be exercised with great care, so that the reception of the additional evidence for the prosecution may not operate in any manner prejudicial to the defence of the accused. Under the garb of the provision of this Section, the prosecution cannot be allowed to fill up the lacunae in the prosecution evidence. Where only formal proof of a document is necessary, the Appellate Court would be perfectly justified in admitting the additional evidence". (Emphasis supplied) ( 15 ) IN Bir Singh v. The State of U. P. , AIR 1978 SC 59 : (1978 Cri LJ 177), the Supreme Court had occasion to examine the provisions of S. 391, Cr. P. C. The Apex Court observed :-"though an Appellate Court has power to take additional evidence in a suitable case yet the discretion should not be exercised to fill up gaps or lacunae in the prosecution evidence. " ( 16 ) IN dealing with the main thrust of the contentions of Mr. R. K. Mathur, the learned counsel for the appellant that prosecution cannot be allowed to fill up lacunae in a criminal case, we have to again look at the facts and circumstances mentioned hereinabove. ( 17 ) AS we have already discussed hereinabove that the appellant handed over his written confession as well as two statements written by Babulal Sharma and Shri Chand to Subedar Vijay Prakash on 7-6-1993 and 8-6-1993 and Anurag Vij forwarded these documents to ASI Lalu Ram who prepared a seizure memo of all the three documents and the said memo was filed with the charge sheet which was exhibited as Ex. P/15 during the trial. The Investigating Officer during investigation took specimens of the hand writings of the appellant as well as Babulal and Srichand and sent original letters as well as specimens of the hand writing to FSL Jaipur. The said documents were received at FSL Jaipur on 13-9-93 and the charge sheet was submitted by the Investigating Officer on 16-9-1993 without these documents. The Investigating Officer during investigation took specimens of the hand writings of the appellant as well as Babulal and Srichand and sent original letters as well as specimens of the hand writing to FSL Jaipur. The said documents were received at FSL Jaipur on 13-9-93 and the charge sheet was submitted by the Investigating Officer on 16-9-1993 without these documents. The Additional Public Prosecutor, who conducted the prosecution case in the trial court did not care to summon and file these documents before the testimony of Lalu Ram (PW 17), Anurag Vij (PW 18), Ashok Kumar (PW 19), Rambilas Pandey (PW 20) and Nihal Singh (PW 21) was recorded. At the time of examination of these witnesses neither the trial court nor the Additional Public Prosecutor took notice of the original documents examined by the F. S. L. and lacunae was left. We do not think it proper to recall all the five witnesses already examined, to fill up the lacunae in the prosecution evidence and we reject the prayer of the Public Prosecutor for recalling witnesses Lallu Ram (PW 17), Anurag Vij (PW 18) Ashok Kumar (PW 19) Ram Bilas Pandey (PW 20) and Nihal Singh (PW 21 ). ( 18 ) NOW we deal with the order dated 21-12-1994 of the trial Court which came to our notice while we perused the record. ( 19 ) AS we have mentioned above that the informant Lekhram, father of the deceased Babita submitted an application on 16-9-1994 in the trial court to examine Dr. T. S. Kapur, Assistant Director (Document) F. S. L. Jaipur. The Additional Public Prosecutor however did not press the said application for the reasons best known to him and the trial court vide order dated 21-12-1994 dismissed the said application as not pressed. The trial court in our view, before dismissing the said application, ought to have perused the provisions of Section 294, Cr. P. C. Be that as it may, the voice of the informant Lekhram was unheard by the prosecuting agency as well as by the trial Court. It will not be out of place to mention here that the learned Additional Public Prosecutor Sube Singh Yadav submitted first application with FSL report on 16-6-1994 in the trial Court and the said report was taken on record vide order dated 8-8-1994. It will not be out of place to mention here that the learned Additional Public Prosecutor Sube Singh Yadav submitted first application with FSL report on 16-6-1994 in the trial Court and the said report was taken on record vide order dated 8-8-1994. Another application was submitted on 21-12-1994 with a packet consisting of original letters of the appellant. Babulal and Srichand and their specimens hand writing with a request to take the said document on record. Copies of the said documents were handed over to the counsel for the appellant but trial Court did not pass any order on the said application. A perusal of the complete order sheets on the file of the trial court reveals that the said application dated 21-12-1994 was left undecided. ( 20 ) WE also cannot turn a deaf ear towards the voice of a person represented by the State as did by the trial court. There would be a failure of justice in case we over look this important aspect of the case. Examination of Dr. T. S. Kapur is necessary under sub-Section (2) of Section 293 and under the proviso of sub-Section (3) of Section 294 of the Code of Criminal Procedure. The trial court did not care to invoke the provision of Section 294. On 16-6-1994 when F. S. L. report was filed by the prosecution the appellant was not called upon to admit or deny the genuineness of the said report so that it could be read in evidence. ( 21 ) IN Rajeshwar Prasad Misra v. State of West Bengal reported in AIR 1965 SC 1887 : (1965 (2) Cri LJ 817) the Apex Court observed as under :-THE Code gives power to the appellate court to take the additional evidence, which for reasons to be recorded it considers necessary. Thus, the Code gives power to the appellate court to order one or the other as the circumstances may require, leaving a wide descretion to it to deal appropriately in different cases. Additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power has to be exercised sparingly and only in suitable cases. " ( 22 ) DEALING with the technical lacuna and scope of the Section 391, Cr. Additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power has to be exercised sparingly and only in suitable cases. " ( 22 ) DEALING with the technical lacuna and scope of the Section 391, Cr. P. C. the Apex Court in State of Gujarat v. Mohan Lal Jitamalji Porwal, (1987) 2 Crimes 1 : (1987 Cri LJ 1061) has held :"the next question which arises is as regards the request made by the learned Assistant Public Prosecutor for adducing additional evidence in order to prove letter Ex. 26 received from the Mint Master certifying that the article in question was made of gold of the purity of 99. 60. The request was made in order to invoke the powers of the court under Section 391, Cr. P. C. 1973, which inter alia provides that in dedaling with any appeal under Chapter XXIX the appeal court if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself or ask it to be taken by a Magistrate. The High Court rejected the prayer on the ground that it did not consider it" expedient in the interest of justice to open a new vista of evidence" in view of the fact that the offence had taken place six years back. The mere fact that six years had elapsed for which time lag the prosecution was in no way responsible was no good ground for refusing to act in order to promote the interest of justice in an age when delays in the court have become a part of life and the order of the day. Apart from the fact that the alleged lacuna was a technical lacuna in the sense that while the opinion of Mint Master had admittedly been placed on record it had not been formally proved the report completely supported the case of the prosecution that the gold was of the specified purity. To deny the opportunity to remove the formal defect was to abort a case against the alleged economic offender. (Emphasis supplied) ( 23 ) IN the case before us only formal proof of a document is necessary. To deny the opportunity to remove the formal defect was to abort a case against the alleged economic offender. (Emphasis supplied) ( 23 ) IN the case before us only formal proof of a document is necessary. As we have already pointed out that the seizure memo through which the original letters said to have been written by the accused appellant Babulal and Srichand was admitted in evidence as Ex. P. 15. Letters written by Anurag Vij SHO Police Station Kot Kasim and ASI Lalu Ram respectively have also been admitted in evidence before the trial court as Ex. P/16 and Ex. P/17. The documents referred hereinabove though were placed on record but due to negligence of the Additional Public Prosecutor they could not have been exhibited. Similarly the application of informant Lekhram in connection with summoning of Dr. T. S. Kapur, Assistant Director (Documents) FSL Jaipur was not pressed and the trial Court dismissed the said application without properly appreciating the facts of the case as well as the provisions of Section 294, Cr. P. C. The person represented through the State is also entitled to justice. The cause of the community deserved equal treatment at the hands of the court in the discharge of its judicial functions. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collars crimes with a permissive eye unmindful of the damage done to the National interest. ( 24 ) IN the case before us the entire prosecution story hinges on the written confession said to have been made by the accused appellant before his superiors. There are two written statements on the file to corroborate the confession. These documents could not be taken on record. Subedar Vijai Prakash to whom the original letters were handed over, was not included in the list of witnesses by the Investigating Officer. The trial Court also did not invoke the powers under Section 311 of the Code of Criminal Procedure to examine Subedar Vijai Prakash and Dr. T. S. Kapoor. Examination of both these persons was necessary to prevent the failure of justice. The trial Court also did not invoke the powers under Section 311 of the Code of Criminal Procedure to examine Subedar Vijai Prakash and Dr. T. S. Kapoor. Examination of both these persons was necessary to prevent the failure of justice. As such we are of the considered view that this is a fit case in which we should exercise our wide discretion of invoking provisions of Section 391, Cr. P. C. as there would be failure of justice without it. The examination of Dr. T. S. Kapur is necessary in order to ascertain as to whether he examined the original letters and the specimens of handwritting sent to him and what was the result. The examination of Vijay Prakash is necessary to ascertain as to whether the original letters said to have been written by accused appellant Babulal and Srichand were handed over to him on 7-6-1993 and 8-6-1993. The documents had been placed on record. They are to be formally proved only. ( 25 ) IN the result we allow the application of the Public Prosecution in part to the extent of recording the evidence of Subedar Vijay Prakash. We also feel necessary under the facts and circumstances to record the evidence of Dr. T. S. Kapur Assistant Director (Documents) FSL, Jaipur and A. S. I. Lallu Ram who prepared seizure memo of the documents mentioned herein above. ( 26 ) THE Public Prosecutor is directed to get the summons of these witnesses served within 15 days and produce these witnesses in this court on 24-7-1996. The counsel for the appellant will have an opportunity to cross examine these witnesses and thereafter the statements of the accused appellants under Section 313, Cr. P. C. shall be recorded. The appellant will also have the opportunity to produce defence witnesses. ( 27 ) WE however make it clear that observation if any, made in this order will not affect the merits of the case. Order accordingly.