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2013 DIGILAW 718 (HP)

State of Himachal Pradesh v. Des Raj

2013-08-06

DEV DARSHAN SUD, DHARAM CHAND CHAUDHARY

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Judgment : Dev Darshan Sud, J. This appeal was taken up for consideration today. The State urged that Cr.M.P.(M) No.771 of 2012 under Section 391 of the Code of Criminal Procedure, for permission to lead additional evidence to prove the birth certificate of the prosecutrix appended with the application issued by the Chief Medical Officer, Chamba, be allowed to be proved in evidence. 2. Reply to this application is filed which is resisted on the ground that the prosecution seeks to fill in lacunae in the evidence which was otherwise available to it before the learned trial Court. 3. We have heard learned counsel for the parties at length and have gone through the record. 4. The birth certificate annexed with the application, Cr.M.P.(M) No.771 of 2012, has been issued under Section 12/17 of the Registration of Births and Deaths Act, 1969 and Rule 8 of the Himachal Pradesh Registration of Births and Deaths Rules, 2003, in which eventuality it was urged by the learned Additional Advocate General that this certificate is perse admissible in evidence. Without going into this question or pronouncing on the law; it was then urged that in case this Court is not to record evidence, such evidence be directed to be recorded by the learned trial Court, the matter be remanded for decision. 5. We are aware about the limitations and constraints placed on the powers of this Court on remand in criminal law as also the proposition of law that additional evidence in appeal cannot be allowed to be recorded at the whim of the prosecution in order to enable it to fill lacunae, more especially, when the accused has been acquitted by learned trial Court. 6. In Anil Sharma and Others vs. State of Jharkhand, (2004)5 SCC 679 , the Supreme Court Court holds: “11. … … … …It is true that in a given case the accused can make an application for adducing additional evidence to substantiate his claim of innocence. Whenever any such application is filed before the Court, acceptability of the prayer in question is to be objectively considered. … … … … … 12. 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. … … … … … 12. 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 has 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 or cavalier 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 ultimately 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.” (pp.685-686) 7. In Zahira Habibulla H.Sheikh and Another vs. State of Gujarat and Others, (2004)4 SCC 158 , the Court holds:- “47. Section 391 of the Code is another salutary provision which clothes the Courts with the power to 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. 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. 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 legislative 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. (p.190) 8. Subsequently, in Satyajit Banerjee and Others vs. State of W.B. and Others, (2005)1 SCC 115 , the Supreme Court, after consideration of Zahira Habibulla H.Sheikh’s case (known as `Best Bakery case’) held:- “26. The law laid down in Best Bakery case4 in the aforesaid extraordinary circumstances, cannot be applied to all cases against the established principles of criminal jurisprudence. Direction for retrial should not be made in all or every case where acquittal of accused is for want of adequate or reliable evidence. In Best Bakery case the first trial was found to be a farce and is described as "mock trial". Direction for retrial should not be made in all or every case where acquittal of accused is for want of adequate or reliable evidence. In Best Bakery case the first trial was found to be a farce and is described as "mock trial". Therefore, the direction for retrial was in fact, for a real trial. Such extraordinary situation alone can justify the directions as made by this Court in Best Bakery case.” (p.121) 9. The Court has further observed that re-trial is an exception and if it is directed the Court should decide the case on the basis of the evidence already on record. The Court holds:- “27. So far as the position of law is concerned we are very clear that even if a retrial is directed in exercise of revisional powers by the High Court, the evidence already recorded at the initial trial cannot be erased or wiped out from the record of the case. The trial Judge has to decide the case on the basis of the evidence already on record and the additional evidence which would be recorded on retrial.” (p.122) 10. Having given careful consideration to the facts as raised, we deem it appropriate to remand the case for recording additional evidence as prayed for in Cr.M.P.(M) No.771 of 2012, as a consequence the judgment is set aside. We do not express any opinion on the respective merits of the case of the parties even while we accord permission to the petitioner- State, it shall not be construed to mean that the judgment of acquittal as passed by the learned trial Court is against law and that by leading additional evidence it would change the entire complexion of the case. 11. We direct that parties will appear before the learned trial Court on 11th November, 2013. Learned trial Court shall proceed to record additional evidence only on the document i.e. birth certificate as submitted in Cr.M.P.(M) No.771 of 2012. The respondent will be granted full opportunity of leading evidence in rebuttal as also of leading any other evidence in support of his defence with respect to the birth certificate sought to be proved in additional evidence. 12. No other evidence will be allowed to be permitted by the learned trial Court. The respondent will be granted full opportunity of leading evidence in rebuttal as also of leading any other evidence in support of his defence with respect to the birth certificate sought to be proved in additional evidence. 12. No other evidence will be allowed to be permitted by the learned trial Court. On recording of the evidence, the learned trial Court shall decide the case afresh in accordance with law on the evidence already on record and on the additional evidence as directed. Petition disposed of.