JUDGMENT 1. - This appeal owes its origin in the judgment dated February 08, 2001 rendered by Additional Sessions Judge Kishangarhbas District Alwar in Sessions Case No. 42/1998 whereby the appellant was convicted and sentenced on the allegations of snatching a bag of golden and silver ornaments and committing murder of Krishna Kumar, as under: U/s. 302 IPC To suffer Imprisonment for life and fine of Rs. 25,000/- in default to further suffer one year Rigorous Imprisonment. U/s. 394/397 IPC To suffer Seven Years Rigorous Imprisonment and fine of Rs. 20,000/- in default to further suffer One Year Rigorous Imprisonment. U/s. 120B IPC To suffer Seven Years Rigorous Imprisonment and fine of Rs. 10,000/- in default to further suffer One Year Rigorous Imprisonment. U/s. 3/25 Arms Act: To suffer One Year Rigorous Imprisonment and fine of Rs. 1,000/- in default to further suffer Three Months Rigorous Imprisonment. All sentences were ordered to run concurrently. 2. The prosecution case is woven like this on the basis of written report (Ex.P-1) submitted by Hari Om (Pw. 1) on February 18, 1998 at Police Station Bhiwari, registered a case under Section 394 and 302 IPC and investigation commenced. In the report it was interalia stated by the informant that around 7.30 PM on the said day he had gone to the shop "Laxmi Jewellers" belonging to his brother Krishna Kumar (now deceased). Around 9.00 PM when Krishna Kumar and his wife Anita Devi came out of the said shop after closing it and put the bag of ornaments on their scooter, two persons, one of which was having hockey, came from Maruti Van of white colour bearing No. DNH 8781, and made attempt to snatch the bag of ornaments and in that process the person having hockey gave blows on Krishna Kumar whereas another person opened fire with Katta (country made gun) and caused injury on the abdomen of Krishna Kumar who fell down and the miscreants took with them the bag of ornaments and fled in the Maruti Van towards Tawru. Injured Krishna Kumar was taken to the hospital at Bhiwari, from where he was referred to Gurgaon, but on the way Krishna Kumar died. 3. The Investigating Officer arrested appellant Dharam Pal and at his instance got recovered Silver and golden ornaments vide memo (Ex.P-9) and 12-bore Deshi Katta (country made gun) vide memo (Ex.P-13). Witnesses Hari Om (Pw. Injured Krishna Kumar was taken to the hospital at Bhiwari, from where he was referred to Gurgaon, but on the way Krishna Kumar died. 3. The Investigating Officer arrested appellant Dharam Pal and at his instance got recovered Silver and golden ornaments vide memo (Ex.P-9) and 12-bore Deshi Katta (country made gun) vide memo (Ex.P-13). Witnesses Hari Om (Pw. 1) and Anita Devi (Pw. 7) identified Dharampal in the Identification Parade held before the Magistrate. The ornaments recovered at the instance of Dharam Pal also got identified by these witnesses. 4. On completion of the investigation charge sheet was filed against the appellant Dharam Pal and other co-accused persons Chochu @ Afsar, Hukma @ Hukam Chand, Yusuf and Kanwar Singh. Thereafter Chochu @ Afsar, YuSuf and Kanwar Singh absconded and the case came up for trial only against Dharam Pal and Hukma @ Hukam Chand. Charges under Sections 394, 120B, 397 and 302 IPC and 3/25 Arms Act were framed against the appellant and under Sections 394, 120B, 397/34 and 302/34 IPC against Hukma @ Hukam Chand. The appellant and Hukma @ Hukam Chand denied the charges and claimed to be tried. The prosecution in support of its case examined as many as 20 witnesses. In the explanation under Section 313 Cr.PC., the appellant and Hukma claimed innocence. In defence Hukam @ Hukam Chand examined himself. Learned Trial Judge on hearing final submissions convicted and sentenced the appellant as indicated herein above, but acquitted the co-accused Hukma @ Hukam Chand. 5. Mr. A.K. Gupta, learned counsel for the appellant, criticised the impugned judgment from many angles. The main contention of learned counsel for the appellant was that for the purpose of establishing that the appellant was kept baparda (with covered face) before conducting the identification Parade and the ornaments got recovered at the instance of appellant, the Investigating Officer Raghuvir Singh Shekhawat would have been the best witness but the prosecution did not choose to examine him. Learned counsel made various other submissions and cited judicial decisions. 6. Having scanned the record we find that learned trial Judge vide order dated October 18, 2000 granted last opportunity to the prosecution to produce all the witnesses and November 1, 2000 was fixed as next date. On November 1, 2000 when prosecution did not produce any witness the evidence was ordered to be closed. 6. Having scanned the record we find that learned trial Judge vide order dated October 18, 2000 granted last opportunity to the prosecution to produce all the witnesses and November 1, 2000 was fixed as next date. On November 1, 2000 when prosecution did not produce any witness the evidence was ordered to be closed. A look at the record goes to show that service of bailable warrants was affected on Raghuvir Singh Shekhawat, the Investigating Officer of the case and he was to appear before the learned trial court on September 30, 2000. The SHO, Police Station Bhiwari also wrote letter to Raghuvir Singh Shekhawat to appear before the court on September 30, 2000. On the said day Raghuvir Singh Shekhawat was posted as SHO, Gangapur City. But despite the service of bailable warrants Raghuvir Singh Shekhawat did not appear. The learned trial court ought to have issued non-bailabie warrants in such circumstances and proceeded to initiate appropriate proceedings against the defaulting officer but instead of taking action against him, the prosecution evidence was ordered to be closed. 7. At the very outset while considering the arguments advanced it appears necessary to us to examine the scope of Section 391 Cr.RC., which gives power to the High Court to permit the bringing in of additional evidence at the stage of appeal. The Apex Court in Rajeshwar Prasad Miora v. State of West Bengal ( AIR 1965 SC 1887 ) while dealing with the scope of Section 391 Cr.RC., 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 circumstance may require, leaving a wide discretion 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." We find that the language of Section 391 Cr.RC. does not put any restriction on the power of the appellate court but it is for the appellate court to decide whether in the interest of justice it is "necessary" to allow the bringing in of additional evidence. The power has to be exercised sparingly and only in suitable cases." We find that the language of Section 391 Cr.RC. does not put any restriction on the power of the appellate court but it is for the appellate court to decide whether in the interest of justice it is "necessary" to allow the bringing in of additional evidence. When there is likelihood of failure of justice without it the reception of additional evidence may be allowed. But the power conferred by Section 391 Cr.RC. must be exercised with great care, so that reception of additional evidence may not operate in any manner prejudicial to the defence or to fill up the lacuna in the prosecution case. It is in the light of these principles that we proceed to consider as to whether recording of statement of the Investigating Officer is necessary to prevent the failure of justice. 8. In the cases where identity of the accused is involved the evidence of Investigating Officer assumes importance. Their Lordships of the Supreme Court in State of Maharasthra v. Suresh (2000) 1 SCC 471 indicated thus : "We remind ourselves that test identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is two fold. First is to enable the witness to satisfy themselves that the prisoner when they suspe. is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. So the officer conducting the test identification parade should ensure that the object of the parade is achieved." 9. Turning on to the facts of the instant case as already seen by us that the accused persons were not named in the FIR and because the number of white Maruti Van was noticed by the informant, the Investigating utter countable to reach to the accused. Out of the six accused involved in the crime only appellant and Hukam Chand faced trial and others misused the liberty and absconded. Out of the six accused involved in the crime only appellant and Hukam Chand faced trial and others misused the liberty and absconded. Their Lordships of the Supreme Court in Vithal Tukaram More v. State of Maharashtra (2002) 7 SCC 20 , propounded that the courts must see that the penal provisions intended to curb the crime by bringing the offenders to book, do not cause injustice to innocent people. In Krishna Mochi v. State of Bihar (2002) 6 SCC 81 , the Apex Court observed as under: "These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and 1 responsibilities of the courts have become much more. Now the maxim "let hundred guilty persons be acquitted but not a single innocent be convicted" is, in practice, changing the world over and courts have been compelled to accept that "Society suffers by wrong convictions and it equality suffers by wrong acquittals." 10. The peripheral approach of the learned trial court in closing the very material evidence of the Investigating Officer in our opinion, amounts to failure of justice and we find it necessary that additional evidence of the Investigating Officer Raghuveer Singh Shekhawat should be brought into the case. 11. Invoking the provisions contained in Section 391 Cr.RC., we therefore direct the learned Additional Sessions Judge Kishangarhbas (Alwar) to record the statement of the Investigating Officer Raghuveer Singh Shekhawat and certify the said evidence to this court so that this court may proceed to dispose of the appeal. The appellant Dharam Pal shall be produced before the Additional Sessions Judge Kishangarhbas (Alwar) on August 11, 2003 for seeking further instructions in the matter. The recording of the evidence shall be subject to the provisions of Chapter XXIII of Cr.RC., as if it were an inquiry and the appellant Dharam Pal shall have right to cross examine the witness. The learned Additional Sessions, Judge Kishangarhbas shall be at liberty to take all possible steps to ensure the presence of Investigating Officer Raghuveer Singh Shekhawat Deputy Registrar (Judicial) is directed to send the record of the case forthwith to the trial court by a special messenger. This appeal shall now he posted for hearing after two months. *******