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2013 DIGILAW 141 (GAU)

Dilip Guha v. State of Tripura

2013-03-04

U.B.SAHA

body2013
JUDGMENT U.B. Saha, J. 1. The instant application is filed by the appellant applicant under Section 391 read with Section 311 of the Code of Criminal Procedure for adducing additional evidence relating to a letter dated 19-7-2012, issued by the Medical Officer in-charge, Kalyanpur CHC, Khowai, Tripura, wherein it is mentioned that no such record was found in the name of Smt. Biraja Das, W/o. Amulya Das of Kalyanpur, P. S. Kalyanpur, in the labour register of Kalyanpur C. H. C. during the period 24-10-1995 to 30-11-1995 as well as for issuing summons upon the Medical Officer of Kalyanpur Rural Hospital for production of the Labour Register of Kalyanpur CHC of the aforesaid period in connection with ST No. 37 (WT/K) of 2010 at this appellate stage. Heard Mr. S. Lodh learned counsel appearing for the appellant-applicant as well as Mr. D. C. Kabir, learned counsel, led by Mr. D. Sarkar, learned P. P., appearing for the State-respondent. 2. Mr. Lodh, while urging for adducing additional evidence at this appellate stage, would contend that the case of the prosecution before the trial Court was that the victim prosecutrix was minor at the time of alleged offence of rape and in support of the age of the prosecutrix, the prosecution only produced the School Certificate and not any other document, like birth certificate from the hospital. He further submits that though the prosecution filed an application with a prayer to call the ROR of the family of the prosecutrix, but when it was found that there was some manipulation in the date of birth of the prosecutrix, the prosecution did not rely upon the said ROR and withheld the same. He again urges that the appellant-applicant at the time of trial through one of his family friend filed an application under Right to Information Act, 2005 before the Medical Officer of Kalyanpur Rural Hospital to know as to whether Smt. Biraja Das (PW-4) did give birth to any child during the period from 24-10-1995 to 30-11-1995 at Kalyanpur Rural Hospital and in response to the said application, the Medical Officer of Kalyanpur Rural Hospital informed vide letter dated 19-7-2012 that the said Smt. Biraja Das (PW-4) did not give birth to any child during the aforesaid period. The said fact was brought to the notice of the trial Court before completion of the argument by way of filing an application for marking the said letter dated 19-7-2012 as one of the exhibits, but the said prayer of the appellant-applicant, i.e. the accused, was rejected on 6-8-2012 and ultimately passed the impugned judgment convicting the appellant-applicant under Sections 120B and 376(2)(a)(i) of the IPC and sentencing him to suffer two years R. I. and to pay a fine of Rs. 5,000/-, in default of payment of fine to suffer further R. I. for six months for the offence under Section 120B of the IPC and also to suffer 10 years R. I. and to pay a fine of Rs. 10,000/-, in default of payment of fine to suffer further R. I. for one year for committing the offence under Section 376(2) (a)(i) of the IPC without considering the said document. Hence, it would be proper for this Court to allow the appellant-applicant to adduce the aforesaid letter dated 19-7-2012 as additional evidence and also to issue summons upon the Medical Officer of Kalyanpur Rural Hospital for producing the Labour Register of Kalyanpur CHC for the period from 24-10-1995 to 30-11-1995 in the interest of justice. 3. To convince this Court that even the appellate Court has the power to take additional evidence, Mr. Lodh has placed reliance on a decision of the Apex Court in Rajeswar Prasad Misra v. The State of West Bengal and another, AIR 1965 SC 1887 , wherein the Apex Court considered the provision of Section 428 of Cr PC, which is equal to Section 391 of Cr PC. as on date, and particularly in paragraph 9 of the said judgment, the Apex Court discussed regarding the power of the appellate Court so far additional evidence is concerned, and ultimately held that "additional evidence may be necessary for a variety of reasons which it is hardly necessary (even if it was possible) to list here. We do not propose to do what the Legislature has refrained from doing, namely, to control discretion of the appellate Court to certain stated circumstances. It may, however, be said that 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 must be exercised sparingly and only in suitable cases. It may, however, be said that 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 must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him." 4. Mr. Kabir, while countering the submission of Mr. Lodh, would contend that the case laws relied upon by Mr. Lodh are not applicable at all in those cases the prosecution did not raise any objection to the prayer for additional evidence. But in the instant case, admittedly, the application of the appellant-applicant dated 31-7-2012 for accepting the letter dated 19-7-2012 (Annexure-P/1 to the instant application) has been objected by the prosecution on 4-8-2012 and the trial Court after considering the objection of the prosecution rejected the prayer of the appellant-applicant on 6-8-2012 and the said order of rejection has not been admittedly challenged by the appellant applicant. Not only that, admittedly, the appellant applicant was asked at the time of examination under Section 313 of the Cr PC. as to whether he would adduce any evidence, which would be evident from question No. 44 of the examination of the appellant-applicant under Section 313 of Cr PC, and in response to the said question the appellant-applicant declined to adduce any evidence and besides that, the trial Court also discussed regarding the said letter dated 19-7-2012 in his judgment, particularly, in paragraphs 52 to 57. Thus, it cannot be said that the trial Court did not consider the said letter dated 19-7-2012 (Annexure-P/1 to the instant application). He further submits that there is no doubt that the appellate Court has wide power to take additional evidence in the interest of justice but not for the purpose of filing up the lacuna of the prosecution as well as the defence. 5. He further submits that there is no doubt that the appellate Court has wide power to take additional evidence in the interest of justice but not for the purpose of filing up the lacuna of the prosecution as well as the defence. 5. In the instant case, the appellant applicant though did get opportunity for adducing evidence in favour of him by way of either summoning the Medical Officer from Kalyanpur CHC or producing the certified copy of the entry of the said Labour Register of Kalyanpur CHC, but the same was not done. 6. Mr. Kabir has placed reliance on the decision of the Apex Court in the case of Zahira Habibulla H. Sheikh and another v. State of Gujarat and others (2004) 4 SCC 158 : ( AIR 2004 SC 3114 ) wherein the Apex Court discussed about the object and ambit of Section 391 of Cr PC. and reiterated its earlier views that the object of Section 391 is not to fill in lacuna but to sub-serve the ends of justice. The court has to keep these salutary principles in view. Though wide discretion is conferred on the Court, the same has to be exercised judicially and the legislature had put the safety valve by requiring recording of reasons. 7. He finally contended that to prove the age of any child or juvenile in conflict with law, the documents which can be relied upon are:- (a)(i) The matriculation or equivalent certificates, if available; and in the absence whereof; (ii) The date of birth certificate from the school (other than a play school) first attended; and in the absence whereof; (iii) The birth certificate given by a corporation or a municipal authority or a panchayat; (b) And only in absence of the aforesaid documents, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. 8. In the instant case, the prosecution has proved the school certificate issued by the concerned school authority and did not rely upon the ROR, which was produced by the prosecution itself, but at the same time the appellant-applicant also did not rely upon the said ROR and that the learned Trial Judge did not consider the same. 8. In the instant case, the prosecution has proved the school certificate issued by the concerned school authority and did not rely upon the ROR, which was produced by the prosecution itself, but at the same time the appellant-applicant also did not rely upon the said ROR and that the learned Trial Judge did not consider the same. Thus, it would not be proper on the part of this Court to consider the said ROR at this appellate stage and there is also no prayer for considering the said ROR as an additional evidence. 9. In Rajeswar Prasad Misra ( AIR 1965 SC 1887 ) (supra) the Apex Court while dealing with the power of the appellate Court under Section 428 of Cr PC. (old) noted that "the Code gives power to the appellate Court to take 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 discretion to it to deal appropriately with different cases". In the said decision the Apex Court also noted that "since a wide discretion is conferred on appellate Courts, the limits of that Courts' jurisdiction must obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides. There is, no doubt, some analogy between the power to order a retrial and the power to take additional evidence. The former is an extreme step appropriately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There the resemblance ends and it is hardly proper to construe one section with the aid of observations made by this Court in the interpretation of the other section". In the said judgment it is again noted that "it may, however, be said that 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 must be exercised sparingly and only in suitable cases. (Emphasis supplied) Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. The power must be exercised sparingly and only in suitable cases. (Emphasis supplied) Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise. 10. Upon going through the aforesaid decision of the Apex Court, it appears that the High Court while considering the case of the complainant therein found that there was overwhelming evidence to prove the receipt of the three sums by the appellant and that the additional evidence demonstrated clearly that the money received by the appellant was not deposited with the cashier of the Company and then only exercised its jurisdiction under Section 428 of the Code and the said exercise of the High Court was upheld by the Apex Court. 11. But the case in hand, it is the admitted position that the appellant-applicant has already approached the trial Court for taking note of the document, i.e. letter dated 19-7-2012, received by him through RTI and also to act on it and the trial Court upon hearing rejected the said prayer of the appellant-applicant on 6-8-2012. But the appellant-applicant did not approach this Court challenging the said order dated 6-8-2012. Thus, it cannot be said that the said document is a document which can be considered as additional evidence, rather a document which was considered and rejected earlier by the trial Court. 12. In Gave Dei v. Sabasini Dei and another, 1998 Cri LJ 3071, the Orissa High Court while considering an order of the learned Additional Sessions Judge allowing the appellant-opposite parties therein to adduce additional evidence in appeal discussed about the provisions of Section 391 of the Code and ultimately set aside the order of the learned Additional Sessions Judge noting inter alia that "From the record it appears that after the examination of the opposite parties under Section 313 was over, they were called upon to adduce defence evidence. But since they declined to adduce any such evidence, the learned Magistrate heard arguments and adjourned the case to a future date for judgment. It is not the case of the opposite parties that in order to examine Bisuni Behara as defence witness they had prayed for an adjournment but their prayer was disallowed and hearing was closed. If this would have been the situation, no serious objection could have been taken to the impugned order of the learned Additional Sessions Judge permitting the opposite parties to examine the said witness. Besides, the learned Additional Sessions Judge while permitting the opposite parties to adduce additional evidence did not assign reasons as required under law that such evidence as sought to be adduced was necessary in the interest of justice." 13. While discussing the aforesaid case, the Apex Court also took note of its earlier decision in Bir Singh v. State of Uttar Pradesh, AIR 1978 SC 59 , wherein it has been pointed out that power to take additional evidence should not be exercised for the purpose of filling up the gap in the prosecution case when necessary evidence was available to the prosecution at the hearing and ought to have been produced then. 14. In the instant case also, the appellant-applicant, an officer of the police station at the time of committing the alleged offence of rape, was asked by the trial Court at the time of his examination under Section 313 of Cr. R C. as to whether he would adduce any evidence in his defence, but he declined to adduce any evidence. It appears from the record of the learned trial Court that the learned trial Court after receipt of the application dated 31-7-2012, and also after hearing the parties, passed the order on 6-8-2012 and the said order has not been challenged by the appellant-applicant and thus, the said order dated 6-8-2012 reached to the finality. For better appreciation, the relevant portion of the said order dated 6-8-2012 is reproduced hereunder:- Today an objection petition is submitted against the documents submitted on 31-7-2012 the accd. with a prayer to exhibit the documents taking judicial notice of it. Keep the petition with the record. No sides prays for any time giving opportunity to exhibit the documents submitted on 31-7-2012 or to hear the petition of objection. Already argument of the sides is over. with a prayer to exhibit the documents taking judicial notice of it. Keep the petition with the record. No sides prays for any time giving opportunity to exhibit the documents submitted on 31-7-2012 or to hear the petition of objection. Already argument of the sides is over. Hence next date shall be fixed for judgment. The accused persons are thus remanded to J/C till 31-8-2012. To 31-8-2012 for judgment. 15. In Zahira Habibulla H. Sheikh ( AIR 2004 SC 3114 ) (supra) the Apex Court while discussing about the power of the Court under Section 311 as well as Section 391 of the Code held as follows:- 44. The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e. (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Courts to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In Mohan Lal v. Union of India, ( AIR 1991 SC 1346 ) this Court has observed, while considering the scope and ambit of Section 311, that the very usage of the word such as, "any Court" "at any stage", or "any enquiry or trial or other proceedings" "any person" and "any such person" clearly spells out that the Section has expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case- 'essential', to an active and alert mind and not to one which is bent to abandon or abdicate. The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case- 'essential', to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of Section 311 but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth. 45. It is not that in every case where the witness who had given evidence before Court wants to change his mind and is prepared to speak differently, that the Court concerned should readily accede to such request by lending its assistance. If the witness who deposed one way earlier comes before the appellate Court with a prayer that he is prepared to give evidence which is materially different from what he was given earlier at the trial with the reasons for the earlier lapse, the Court can consider the genuineness of the prayer in the context as to whether the party concerned had a fair opportunity to speak the truth earlier and in an appropriate case accept it. It is not that the power is to be exercised in a routine manner, but being an exception to the ordinary rule of disposal of appeal on the basis of records received in exceptional cases or extraordinary situation the Court can neither feel powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice. The Court can certainly be guided by the metaphor, separate the grain from the chaff, and in a case which has telltale imprint of reasonableness and genuineness in the prayer, the same has to be accepted, at least to consider the worth, credibility and the acceptability of the same on merits of the material sought to be brought in. 46. The Court can certainly be guided by the metaphor, separate the grain from the chaff, and in a case which has telltale imprint of reasonableness and genuineness in the prayer, the same has to be accepted, at least to consider the worth, credibility and the acceptability of the same on merits of the material sought to be brought in. 46. Ultimately, as noted above, ad nauseam the duty of the Court is to arrive at the truth and subserve the ends of justice. Section 311 of the Code does not confer any party any right to examine, cross-examine and re-examine any witness. This is a power given to the Court not to be merely exercised at the bidding of any one party/person but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. Recourse may be had by Courts to power under this section only for the purpose of discovering relevant facts or obtaining proper proof of such facts as are necessary to arrive at a justice decision in the case. 47. Section 391 of the Code is another salutary provision which clothes the Court with the power of effectively decide an appeal. Though Section 386 envisages the normal and ordinary manner and method of disposal of an appeal, yet it does not and cannot be said to exhaustively enumerate the modes by which alone the Court can deal with an appeal. Section 391 is one such exception to the ordinary rule and if the appellate Court considers additional evidence to be necessary, the provisions in Section 386 and Section 391 have to be harmoniously considered to enable the appeal to be considered and disposed of also in the light of the additional evidence as well. For this purpose it is open to the appellate Court to call for further evidence before the appeal is disposed of. The appellate Court can direct the taking up of further evidence in support of the prosecution; a fortiori it is open to the Court to direct that the accused persons may also be given a chance of adducing further evidence. The appellate Court can direct the taking up of further evidence in support of the prosecution; a fortiori it is open to the Court to direct that the accused persons may also be given a chance of adducing further evidence. Section 391 is in the nature of an exception to the general rule and the powers under it must also be exercised with great care, specially on behalf of the prosecution lest the admission of additional evidence for the prosecution operates in a manner prejudicial to the defence of the accused. The primary object of Section 391 is the prevention of guilty man's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the Court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable. 48. The legislature intent in enacting Section 391 appears to be the empowerment of the appellate Court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391. 49. There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the Section are only to be invoked when formal proof for the prosecution is necessary. If the appellate Court thinks that it is necessary in the interest of justice to take additional evidence it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of the discretion of the appellate Court. As re-iterated supra the ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the public prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the Court in the discharge of its judicial functions. 16. As re-iterated supra the ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the public prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the Court in the discharge of its judicial functions. 16. In the aforesaid case the Apex Court also took note of its earlier decision in Rambhau v. State of Maharashtra, (2001) 4 SCC 759 : (AIR 2007 SC 2120), wherein it was held that object of Section 391 is not to fill in lacuna, but to subserve the ends of justice. The Court has to keep these salutary principles in view. Though wide discretion is conferred on the Court, the same has to be exercised judicially. In the said decision, the Apex Court also said whether taking up of additional evidence under Section 391 of the Code is the proper procedure will depend on the facts and circumstances of each case for which no straitjacket formula of universal and invariable application can be formulated. 17. As Mr. Kabir, learned State counsel has referred to paragraphs 53 and 54 of the judgment of the learned trial Court to show that the learned trial Court has discussed about the same while considering the prayer for exhibiting the document, i.e. the letter dated 19-7-2012 (Annexure-P/1 to the instant application), it would be proper on the part of his Court to reproduce the salient part of the judgment where the learned Trial Court has discussed about the said document, which reads thus:- Here the A/P is allowed Dilip Guha has submitted a document which is nothing but an official reply of the M. O. (in-charge). Kalyanpur Hospital wherein it is stated that as per the application no record was found in the name of Smt. Biraja Das, W/O. Amulya Das of Kalyanpur, P.S. Kalyanpur in the labour register of Kalyanpur C. H. C. during the period from 24-10-1995 to 30-11-1995. Kalyanpur Hospital wherein it is stated that as per the application no record was found in the name of Smt. Biraja Das, W/O. Amulya Das of Kalyanpur, P.S. Kalyanpur in the labour register of Kalyanpur C. H. C. during the period from 24-10-1995 to 30-11-1995. Considering the rival submissions, this Court is of the opinion that had the A/Prayer is allowed submitted the certified copy of the Labour Register of Kalyanpur C. H. C. then that would have been the certified copy of a public document within the meaning of S. 74 and that certified copy would have satisfied the requirements of S. 76 and would have been admissible as a proof of the fact u/s. 77 of the Indian Evidence Act. Here the letter of M. O. I/C cannot be considered as a public document for the purpose it is submitted. Yes, the case would be otherwise if somebody asks for the certified copy of this letter from the M. O. I/C which has already become a part of hospital record, in that case he or she as the case may be can procure and produce the certified copy of this letter for the limited purpose that such a letter was indeed issued by the M. O. I/C in his official capacity. But this Court cannot read this document as evidence for the purpose of proof of the fact that "no record was found in the name of Smt. Biraja Das, W/o. Amulya Das of Kalyanpur, P. S. Kalyanpur in the labour register of Kalyanpur C. H. C. during the period 24-10-1995 to 30-11-1995." The aforesaid content as discussed above having no evidentiary value, the prayer of the defence to read the same is hereby rejected. 18. 18. Having heard the learned counsel for the parties, considering the law reports cited and on proper survey of the impugned judgment and evidence, as referred by the learned counsel for the parties at this stage, this Court is of the considered opinion that adducing additional evidence by a party is not a right, rather within the discretion of the Court for the interest of justice so that a guilty person should not be released, when sudden evidence though available but could not be collected at the time of trial, but not for filling up the lacuna either of the prosecution or of the defence at a later stage which could have been produced first at the trial stage. By this time it is settled that the prayer for additional evidence should only be allowed in exceptional cases and it should never be allowed merely to fill up the gaps in a mechanical way. In the instant case, this Court has already stated that the appellant-applicant, who was a police officer at the time of alleged offence, was asked by the trial Court at the time of examining him under Section 313 of the 'Code as to whether he would adduce any evidence in his defence, which would be evident in Question No. 44 of the examination of the appellant-applicant under Section 313 of the Code, and his answer was negative. Thus, it cannot be said that the trial Court deprived him of getting opportunity to adduce any additional evidence in favour of him rather it is the appellant-applicant who had taken the decision for not adducing any evidence. 19. Thus, the document, i.e., the letter dated 19-7-2012 (Annexure-P/1 to the instant application), which was filed by the appellant-applicant, was considered by the trial Court and it would not be proper for this Court to allow the prayer of the appellant applicant for adducing additional evidence at this stage as the case in hand is not an exceptional one. However, the appellant-applicant is free to urge his grievances regarding the observation in judgment about the letter dated 19-7-2012 at the time of hearing of the appeal in accordance with law, if so advised. Accordingly, the instant application is dismissed being devoid of merit.