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Madhya Pradesh High Court · body

2012 DIGILAW 78 (MP)

Virendra Singh v. State of M. P.

2012-01-17

G.D.SAXENA, S.K.GANGELE

body2012
JUDGMENT : G.D. Saxena , J. - Shornof unnecessary details, the facts material for the adjudication of the presentcase as per prosecution case are that on 2nd August 1993, at about 2 in thenoon, the deceased Mansukh Lal with his Mouser gun accompanied with Devi Singh(PW-3), Sewaram ((PW-4) and Shri Ram (PW-5) was going on foot to village Khujriyai bythe side nearby railway track. When they reached near Arru Railway Crossing, the accused appellant along with other absconded accused camefrom their front side and surrounded him. It is alleged that the appellant withan intention to kill him fired from his 12 bore country-made pistol which hithim on the left shoulder. Thereafter, the accused with the help of otherssnatched the Mauser gun from deceased and fled awayfrom the spot. Having heard the noise of firings, the Gate Man Agnu Prasad informed the incident of firings to the StationMaster of Dabra Railway Station, who in turn,informed the same to the Police Station Dabra . ThePolice Party rushed to the spot and conducted the search of the suspectedaccused. One culprit was caught red handed by the persons reached on the spotafter incident and another was caught by the police party. The looted gun wasalso recovered from the another culprit on the spot. Hence,on detailed consideration of the prosecution evidence, it appears that two setsof facts emerge from the prosecution evidence. First version is reflected fromthe court statements of eye-witnesses of the incident, namely, Agnu Prasad (PW-1) Gate Man of Arru Railway Crossing, Trilok Prasad (PW-2), the witnessof spot map, Devi Singh (PW-3), Sewa Ram (PW-41 and Shri Ram (PW-5). The aforesaideye-witnesses, as per prosecution case, were going with the deceased Mansukh Lal and the incident tookplace in their presence. According to their version, the incident was committedby two unknown miscreants and out of them one named, Rakesh snatched the gun belonging to witness Shri Ram whichwas kept by the injured/deceased Mansukh and another Awadesh Singh was having the country-made pistol which wasused in incident by him. Accused Rakesh was caughthold by the villagers while another accused Awadesh was caught hold after encounter by the police force. The articles were seizedon the spot. Theses witnesses do not indicate in their evidence about thepresence of the accused Virendra on the spot. Anotherversion appears from the dying declaration written by Dr. Accused Rakesh was caughthold by the villagers while another accused Awadesh was caught hold after encounter by the police force. The articles were seizedon the spot. Theses witnesses do not indicate in their evidence about thepresence of the accused Virendra on the spot. Anotherversion appears from the dying declaration written by Dr. Swantra Saksena (PW-7) in the presence of witness Shri Ram, in which the injured himself involved the accused Virendia for causing injuries on his neck by thefirearm, i.e., the country-made pistol. The prosecution utterly failed to proveand examine the writer of the F.I.R. lodged by the injured/deceased and furtherfailed to get the same exhibited. When the dying declaration and the statement of the deceased are presumed to be vitalrecords, the prosecution should have taken possible steps to examine the 1.0. Underthe circumstances, this court finds that there is no convincing explanation onthe part of the prosecution for not examining the Investigating Officer beforethe trial Court. Learnedcounsel for the appellant vehemently argued that the trial Court has rendered afinding on the strength of the oral and documentary evidence available onrecord and even if some evidence is found to be missing in the prosecutioncase, the trial court cannot be asked for receiving additional evidence to fillup the lacuna in the prosecution case. Beforeentering into the discussions with regard to the import of Section 391 Cr.P.C ., it is desirable to depict the scope of the saidprovision. The substance of the section does not put any restriction on thepower of the Court. The reception of additional evidence may be allowed whenthere is likelihood of failure of justice without it. Additional evidencecannot be refused, when such evidence is necessary to promote justice. However,while exercising such powers under Section 391 Cr.P.C .,the Court of appeals cannot allow permission to produce new documents for beingused as evidence. Inthis respect a reference may be made to a decision rendered by the Apex Court in Zahira Habibulla H. Sheikh Vs . State of Gujrat AIR 2004 SC 3114 , wherein it is held that it is opento the appellate Court to call for further evidence before the appeal isdisposed of. Inthe case of State Vs. Shanti 2006 Cri.LJ .3082, the above said case of Hon. Supreme Court was referred and followed andheld that in the circumstances of the case, taking additional evidence wasessential. Inthe case of State Vs. Shanti 2006 Cri.LJ .3082, the above said case of Hon. Supreme Court was referred and followed andheld that in the circumstances of the case, taking additional evidence wasessential. Advertingto the facts of the present case, in the background of the settled legalpropositions and judicial pronouncements, it ought to be observed thatrecording of additional evidence is absolutely necessary for this case, thereason being, the documents, which are sought to be marked as additionalevidence, are not new ones, but were already prepared by the InvestigatingOfficer during investigation. It is stated that the Investigating Officercompleted his investigation and laid charge sheet along with them. It cannot bestated that the direction for recording of additional evidence is for fillingup the lacuna in this case, because, no new material is proposed to beentertained in this case, but the authenticity of the documents prepared by the1.0. alone is sought to be examined before the trialCourt. Hence, ends of justice will be met by ordering to take additionalevidence on these documents. Consideringthe materials with reference to the dying declaration and the case-diarystatement of the deceased himself recorded under Section 161 of Cr.P.C . as well as the contradictions and omissionscontained in the statements of the eye-witnesses mentioned above, we feel, itis just and necessary to remand the matter back to the trial court for takingadditional evidence in this case. The First Additional Sessions Judge, Dabra , district Gwalior is herebydirected to take additional evidence with regard to the aforesaid documents, byexamining the material witness, i.e., the Investigating Officer O.P. Sagoria , who has done the investigation in the case. Thetrial Court shall complete this process and submit the additional evidencetaken by it to this Court, within a period of two months from the date ofreceipt of a copy of this order. Both the parties shall co-operate with thetrial Court to comply with the direction of this Court. It is needless tomention that both sides would be afforded ample opportunity of hearing. Recordof the case shall be dispatched to the trial Court forthwith, along with a copyof this remand order.