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2003 DIGILAW 266 (AP)

SADE GNANESWARI v. State

2003-02-18

L.NARASIMHA REDDY

body2003
L. NARASIMHA REDDY, J. ( 1 ) ON the complaint submitted by the petitioner herein, the respondents 2 to 5 (hereinafter referred to as respondents) were tried for the offence under Section 498-A of the Indian Penal Code by the judicial Magistrate of First Class, Alamur in c. C. No. 191 of 1996. The Trial Court found them guilty of the said offence and accordingly convicted respondent No. 2 to undergo rigorous imprisonment for a period of two years and respondents 3 and 4 to undergo rigorous imprisonment for six months each. Aggrieved by the said conviction and sentences, the respondents have preferred Criminal Appeal No. 28 of 2000 in the Court of the V Additional sessions Judge, (Fast Track Court), East godavari, at Rajahmundry. ( 2 ) DURING the pendency of the appeal, the respondents filed Crl. M. P. No. 206 of 2002 under Section 391 Cr. P. C. requesting the Court to receive two documents viz. , the certified copy of the petition in M. C. No. 40 of 1995 filed by the petitioner herein and her deposition therein as additional evidence. The same was opposed by the prosecution on various grounds. The lower Appellate court through its order dated 6. 1. 2003 allowed the said application. Hence this revision by the de facto complainant. ( 3 ) SRI K. Venkatesh, learned Counsel for the petitioner submits that the application of the respondents was only to receive certain documents, but the lower Appellate Court had gone beyond the same and permitted the documents to be taken on record as well as to put the same to the petitioner herein on her being recalled. It is also his case that the respondents have not explained the reasons on account of which they were prevented from marking those documents during the course of trial in the Trial Court. ( 4 ) SRI C. S. Venkatesh, learned Counsel for the respondents on the other hand, submits that the documents in question could not be filed by his clients for the reasons beyond their control. As far as the recalling of PW. 1 is concerned, he submits that the lower Appellate Court itself has decided to recall PW. 1 to satisfy itself as to the genuinity of her signature on Ex. As far as the recalling of PW. 1 is concerned, he submits that the lower Appellate Court itself has decided to recall PW. 1 to satisfy itself as to the genuinity of her signature on Ex. P1 and that the Court only had permitted the respondents to avail the opportunity to cross-examine her on a very limited aspect, and therefore, the same cannot be found fault with. ( 5 ) THE main contention of the learned Counsel for the petitioner is that though the application before the lower Appellate Court was only to receive the additional documents, the lower appellate Court had not only permitted the documents to be taken on record, but had also ordered recall of PW. 1 if the said order came to be passed only on the basis of the application filed by the respondents, the contention of the learned counsel for the petitioner appears to be correct. However, the recall of PW. 1 was directed by the lower Appellate Court on its own accord, with a view to satisfy itself as to the genuinity of signature of PW. l on ex. P-1. The same is evident from the following observation:"since this Court could not understand as to which of the two signatures is marked as ex. P-2 by the lower Court, to render substantial justice to the parties, it feels necessary to recall PW 1. " ( 6 ) THE fact that the lower Appellate Court dealt with that aspect while dealing with the Criminal Miscellaneous Petition filed under Section 391 Cr. P. C. does not render it illegal in any manner. Having decided to recall PW. 1 on its own accord, the lower appellate Court had permitted the respondents herein to cross-examine PW. 1 to the limited extent of putting the additional documents, now sought to be marked to through the witness. Even this, the learned Judge ordered duly taking into account the settled principles of law that the deposition of a living person is not permissible in evidence. Hence no objection can be taken to the course of action adopted by the lower appellate Court. The second objection raised by the learned Counsel for the petitioner is that the respondents did not make out a case for receiving of the additional documents. Hence no objection can be taken to the course of action adopted by the lower appellate Court. The second objection raised by the learned Counsel for the petitioner is that the respondents did not make out a case for receiving of the additional documents. He relied upon a judgment of this Court in Parachuri radhakrishna Murthy v. State, S. H. O. Bandar taluk Police Station, 1986 (1) ALT 493. ( 7 ) BY its very nature, the question as to whether a party was prevented from placing any document during the course of trial, and whether there existed any justification for coming forward with the same at a belated stage, depends on the facts and circumstances of each case. Further in criminal cases, the burden is exclusively upon the prosecution to establish its case. The role of the accused cannot be compared to that of a defendant in a civil suit in the matter of adducing evidence on his side. At any rate what is sought to be marked is nothing but the petition and deposition of the petitioner herein in a maintenance case. No prejudice would be caused to the petitioner if the same are brought on record. Thus, I do not find any ground to interfere with the order under revision. ( 8 ) THE Criminal Revision Case is, accordingly, dismissed.