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2014 DIGILAW 194 (KER)

Jose v. State of Kerala

2014-03-01

K.T.SANKARAN, M.L.JOSEPH FRANCIS

body2014
JUDGMENT : K. T. SANKARAN, J. These applications are filed by the appellant under Sections 294, 391 and 482 of the Code of Criminal Procedure to call for and admit the documents marked in a connected case. 2. More than 40 accused persons were allegedly involved in a rape case where the victim was aged 16 and odd years but below 18 years, which is popularly known as Suryanelli case. Excluding those accused who were absconding, the other accused were tried in S.C. No. 187 of 1999 on the file of the Additional Sessions Court (Suryanelli Court), Kottayam, and many of them were convicted and sentenced. One of the absconding accused, namely, Dharmarajan was arrested later and the case against him was tried in S.C. No. 241 of 2001 and he was convicted and sentenced. The accused persons filed separate appeals before this Court challenging the conviction and sentence. A Division Bench of this Court heard the Criminal Appeals and acquitted all the accused except Dharmarajan. The Division Bench awarded a lesser sentence to Dharmarajan. The State filed appeals before the Supreme Court. The victim also filed appeals before the Supreme Court. The Supreme Court set aside the judgment of this Court and remanded the Criminal Appeals for fresh disposal. 3. In S.C. No. 241 of 2001, Exhibits X2 to X7, X12 and X13 were marked on the side of the defence. In Criminal Appeal No. 877 of 2002 filed by Dharmarajan against his conviction and sentence in S.C. No. 241 of 2001, a document was marked at his instance as Exhibit C2. The prayer in these applications is to call for the aforesaid Exhibits and to admit the same as part of documents in Criminal Appeal No. 604 of 2000 arising out of S.C. No. 187 of 1999. 4. The application is very vehemently opposed by the learned Director General of Prosecution. He contended that Section 391 of Crl. P.C. is not applicable to documentary evidence and the said Section applies only in respect of oral evidence. He relied on the decision of the Rajasthan High Court in Jugal Kishore v. Roshan Lal, 1999 Crl LJ 2296. 5. Section 391 of the Code of Criminal Procedure reads as follows :- '391. He contended that Section 391 of Crl. P.C. is not applicable to documentary evidence and the said Section applies only in respect of oral evidence. He relied on the decision of the Rajasthan High Court in Jugal Kishore v. Roshan Lal, 1999 Crl LJ 2296. 5. Section 391 of the Code of Criminal Procedure reads as follows :- '391. Appellate Court may take further evidence or direct it to be taken :- (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this Section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.' 6. The learned Director General of Prosecution submitted that a reading of sub-sections (2), (3) and (4) of Section 391 of Crl. P.C. would indicate that Section 391 of Crl. P.C. deals with oral evidence and not documentary evidence. He submitted that there is no mention of documentary evidence in Sectioin 391 of Crl. P.C. 7. Section 3 of the Indian Evidence Act defines evidence as follows :- Evidence - 'Evidence' means and includes - (1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence; (2) all documents including electric records produced for the inspection of the Court, such documents are called documentary evidence.' 8. Going by the definition of evidence in Section 3 of the Indian Evidence Act, it takes in oral evidence as well as documentary evidence. Section 391 of Crl. PC speaks of only evidence. That is a clear indication that Section 391 of Crl P.C. takes in oral evidence as well as documentary evidence. 9. Going by the definition of evidence in Section 3 of the Indian Evidence Act, it takes in oral evidence as well as documentary evidence. Section 391 of Crl. PC speaks of only evidence. That is a clear indication that Section 391 of Crl P.C. takes in oral evidence as well as documentary evidence. 9. In Rajeswar Prasad Misra v. The State of West Bengal, AIR 1965 SC 1887 , certain documents were called for by the defence, but they were not produced by the complainant. The accused was acquitted by the trial Court. The High Court received additional evidence at the instance of the prosecution and marked those documents after recording oral evidence for formal proof of the documents. The oral evidence was recorded by the Magistrate. The additional evidence consisted of certain documents as well. In that context, the Supreme Court held thus : '9. 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 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.' 10. In Anirudh Marik v. State of Jharkhand, 2004 Crl LJ 1518, the High Court of Jharkhand permitted certain documents to be marked as additional documents under Section 391 of Crl. P.C. However, the question whether Section 391 of Crl. P.C. applies only to oral evidence was not considered. 11. In State v. Shanthi, 2006 Crl LJ 3082, the Madras High Court allowed the petition filed by the State under Section 391 of Crl. P.C. and permitted additional evidence to be produced including production of certain documents. P.C. However, the question whether Section 391 of Crl. P.C. applies only to oral evidence was not considered. 11. In State v. Shanthi, 2006 Crl LJ 3082, the Madras High Court allowed the petition filed by the State under Section 391 of Crl. P.C. and permitted additional evidence to be produced including production of certain documents. However, the Madras High Court also did not decide the question whether Section 391 of Crl. P.C. can be applied only to oral evidence. 12. In Zahira Habibulla H. Sheikh v. State of Gujarat, AIR 2004 SC 3114 , the Supreme Court considered the scope and ambit of Section 391 of Crl. P.C. and held as follows :- '51. 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. 52. 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.' 13. The Rajasthan High Court in Jugal Kishore v. Roshan Lal, 1999 Cri LJ 2296 held that the expression ' taking of the evidence' obviously means recording of oral evidence. Interpreting sub-sections (2), (3) and (4) of Section 391 of Crl. P.C. the Rajasthan High Court held that the appellate Court cannot permit the production of new documents in the exercise of its powers under Section 391 of Crl. P.C. 14. We are not inclined to follow the decision of the Rajasthan High Court in Jugal Kishore v. Roshan Lal, 1999 Cr LJ 2296. 15. 'Evidence- means documentary and oral evidence. P.C. the Rajasthan High Court held that the appellate Court cannot permit the production of new documents in the exercise of its powers under Section 391 of Crl. P.C. 14. We are not inclined to follow the decision of the Rajasthan High Court in Jugal Kishore v. Roshan Lal, 1999 Cr LJ 2296. 15. 'Evidence- means documentary and oral evidence. In a given case, sometimes, production of a document alone would be sufficient to prove a particular fact, but in some other cases to prove the documentary evidence it may be necessary to adduce oral evidence. It cannot be held that Section 391 of Crl. P.C. applies only in the case of oral evidence and it cannot be applied in the case of documentary evidence. Sub-section (4) of Section 391 of Crl. P.C. itself would give a clear indication that documentary evidence would also be taken in by Section 391 of Crl. P.C. Sub-section (4) of Section 391 of Crl. P.C. provides that the taking of evidence under the Section shall be subject to the provisions of Chapter XXIII, as if it were an enquiry. Sections 272 to 299 of Crl. P.C. are included in Chapter XXIII, Crl. P.C. Section 293 of Cr. P.C. provides for using as evidence any document purporting to be a report under the hand of a Government Scientific Expert. Oral examination of the expert is in the discretion of the Court. Section 294 of Crl. P.C. provides for the proof of certain documents and in what cases no formal proof is required. A reading of sub-section (4) of Section 391 of Crl. P.C. along with Sections 293 and 294 of Crl. P.C. and the definition of evidence in Section 3 of the Indian Evidence Act would lead to the irresistible conclusion that Section 391 of Crl. P.C. deals with not only oral evidence, but documentary evidence as well. For the aforesaid reasons, we reject the contention put forward by the learned Director General of Prosecution. The documents were marked in the connected case. We are inclined to allow the applications. However, it is made clear that we have not pronounced upon anything on the probative value of the documents in question. Petitions allowed.