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2017 DIGILAW 1118 (RAJ)

STATE OF RAJASTHAN v. VED PRAKASH

2017-05-01

KAILASH CHANDRA SHARMA, MOHAMMAD RAFIQ

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JUDGMENT : MOHAMMAD RAFIQ, J. 1. This order will decide application filed by the State of Rajasthan under Section 391 read with section 311 of the Code of Criminal Procedure, 1973 for recording statements of (1) Raghuveer Singh, Assistant Sub-Inspector, (2) Raja, and (3) Babool, by way of additional evidence. This application has been moved in the midst of the hearing of the criminal death reference made by the trial court for the confirmation of the death sentence awarded to the accused in accordance with the provisions of section 366 of the Cr.P.C., 1973 and the appeal filed by the accused under Section 374 Cr.P.C., 1973 It is contended in the application that the fingerprint memo (Exhibit P-36) of the accused regarding the bottle (Exhibit P-6) was prepared by Raghuveer Singh, A.S.I. MOB Branch, Office of Superintendent of Police, Jhunjhunu, in presence of two independent witnesses, namely, (1) Raja S/o Jukkhe, by caste Ahirwar, aged 26 years, resident of village and post Kheerakachhar, District Chhatarpur, State of M.P., Police Station Sitsar Sadar, and (2) Babool S/o Shri Madhur, by caste Ahirwar, aged 28 years, resident of Sarvai, District Chhatarpur, State of M.P., Police Station Sitsar Sadar. 2. Mr. Anurag Sharma, learned Additional Advocate General, submitted that though the aforesaid document was exhibited by the Investigating Officer Mr. Madan Lal Jef (PW-17), but the afore named witness could not be produced because the Investigating Officer, while filing the charge-sheet, due to oversight or negligence, did not include their names in the calendar of witnesses. This court, by invoking the provision of Section 391 Cr.P.C., 1973 can even now direct the recording of statement of those witnesses as the appeal is merely a continuation of the trial. Hearing of the matter can be deferred till receipt of statements of those witnesses. For this purpose, the record of the trial court may also be sent back to the trial court and after recording the same, the trial court may remit the same to this court. Learned Additional Advocate General submitted that looking to the gravity of the offence and the bearing it would have on the matter, it was indeed a serious lapse on the part of the Investigating Officer. In this regard, he wrote a letter to the Director General of Police proposing strict action against the then Investigating Officer Mr. Madan Lal Jef (PW-17) as also against the Public Prosecutor. In this regard, he wrote a letter to the Director General of Police proposing strict action against the then Investigating Officer Mr. Madan Lal Jef (PW-17) as also against the Public Prosecutor. Relying on the judgment of the Supreme Court in State of Gujarat v. Mohanlal Jitamalji Porwal and Another - AIR 1987 SC 1321 and Zahira Habibulla H. Sheikh and Another v. State of Gujarat and Others - 2004(4) SCC 158 , learned Additional Advocate General, submitted that recording of such additional evidence in the facts of the case would be necessary as the appellate court, by virtue of specifically engrafted provision in section 391 of the Cr.P.C., 1973 has been empowered by the Parliament to do so. Reference is also made to Section 311 of the Cr.PC. to argue that any court, which also includes the appellate court or reference court, in the facts of the present case, may at any stage of inquiry, trial or other proceedings under the Cr.P.C., summon any person as the witness or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. 3. Learned Additional Advocate General argued that in the present case, Ved Prakash is accused of committing rape upon a female child, aged about six years, who happened to be the younger sister of his own wife, by taking her to a deserted place. Summoning of the witnesses, aforementioned, according to him, by order of the court invoking Section 311 read with section 391 of the Cr.P.C., 1973 would not tantamount to filling up the lacunae. In order to support this contention, learned Additional Advocate General relied on judgments of the Supreme Court in Mohan Lal Shamji Soni v. Union of India and Another - 1991 Supp. (1) SCC 271 and Rajendra Prasad v. Narcotic Cell, 1999(6) SCC 110 . 4. Learned Additional Advocate General submitted that Mr. Madan Lal Jef, the Investigating Officer, (PW-17) is posted in Jhunjhunu district and two witnesses, mentioned above, are the residents of the State of M.P but their attendance can also be procured by sending a special messenger. (1) SCC 271 and Rajendra Prasad v. Narcotic Cell, 1999(6) SCC 110 . 4. Learned Additional Advocate General submitted that Mr. Madan Lal Jef, the Investigating Officer, (PW-17) is posted in Jhunjhunu district and two witnesses, mentioned above, are the residents of the State of M.P but their attendance can also be procured by sending a special messenger. The State would ensure that their statements are recorded within ten days from the date of issuing of summons by the trial court after the receipt of the order passed by this court. 5. Mr. Pradeep Choudhary, learned Amicus Curiae, submitted that filing of present application by the prosecution is nothing but an attempt to fill up the lacunae left during the trial of the case. The documents with reference to which these three witnesses are sought to be summoned and examined, are already on record, having been exhibited at the instance of the Investigating Officer. The application was moved in the course of hearing when one of the arguments for their non-production was raised by the defence. It is essentially an attempt to cover up the lapses on the part of the Investigating Officer. Besides, this is only one component of the several arguments raised by the defence and therefore, learned Public Prosecutor may support the impugned judgment on many other grounds. Non-production of these witnesses therefore cannot be said to be essential to the just decision of the matter. Learned Amicus Curiae, in support of his arguments, has cited judgments of Jammu and Kashmir High Court in Kashmira Singh v. State - AIR 1965 J&K 37 and in State v. Zilla Singh - 1973 Cri.LJ 1384. He has also cited judgment of the Supreme Court in Bir Singh and Ors. v. The State of U.P. - AIR 1978 SC 59 to argue that though the appellate court has the power to take additional evidence in a suitable case yet the discretion should not be exercised to fill up gaps or lacunae in the prosecution evidence. For the same proposition of law, reliance is also placed on the judgment of the Supreme Court in Rambhau and Another v. State of Maharashtra - 2001 (4) SCC 759 and Zahira Habibulla H. Sheikh and Another v. State of Gujarat and Others - 2004(4) SCC 158 . 6. For the same proposition of law, reliance is also placed on the judgment of the Supreme Court in Rambhau and Another v. State of Maharashtra - 2001 (4) SCC 759 and Zahira Habibulla H. Sheikh and Another v. State of Gujarat and Others - 2004(4) SCC 158 . 6. Learned Amicus Curiae argued that two witnesses, namely, Raja and Babool, who were associated with preparation of memo of finger print lifted by Shri Raghuveer Singh, A.S.I. of Police, happen to be permanent residents of the State of M.P. and therefore their attendance cannot be procured before the court without the risk of the matter getting unduly delayed. 7. We have given our anxious consideration to rival submissions and carefully studied the cited case law. 8. We are cognizant of the fact that the present application has been moved by the prosecution in these matters not only in the jail appeal filed by the accused against the impugned judgment of his conviction for offences under Section 302, 201 and 366 of the IPC and Section 5/6 of the Protection of Children from Sexual Offences Act, 2012, where for penalty of death has been awarded to him, but we are also called upon to simultaneously consider the reference made to this court by the trial court for confirmation of death sentence in accordance with section 3Cfc of the Cr.P.C., 1973 Even then we hold that the invocation of powers by this court under Section 311 read with Section 391 Cr.P.C., 1973 would be just and proper as in our view, doing so would be essential to the just decision of the case. 9. In taking that view, we are fortified by the judgment of the Supreme Court relied by learned Additional Advocate General in Rajeswar Prasad Misra v. The State of West Bengal and Another - AIR 1965 SC 1887 . The Supreme Court in that case observed that if the already held trial is found to be unsatisfactory or leads to failure of justice, the Code contemplates that a retrial may be ordered after setting aside the conviction or acquittal, as the case may be. Similarly, 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 wide discretion to the appellate Court to appropriately deal with different cases. Similarly, 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 wide discretion to the appellate Court to appropriately deal with different cases. Their Lordships further held that additional evidence must be necessary not only because it would be impossible to pronounce the judgment but also because there would be failure of justice without it. The power has to be exercised sparingly and only in suitable cases. Once, however, such action is justified, there is no restriction on the kind of evidence which may be received, whether formal or substantial. However, it must 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 Supreme Court reflecting on the scope of Section 428 of the old Cr.P.C., which is analogous to section 391 of the Cr.P.C., 1973 observed that the Legislature has not chosen to indicate the limits of the power of the appellate court. Case may arise where either of the two courses may appear equally appropriate. Since a wide discretion is conferred on appellate Courts, the limits of that Court's jurisdiction must obviously be dictated by the exigency of the situation and in such a situation, fair play and good sense appear to be the only safe guides. Directing retrial is an extreme step approximately taken if additional evidence will not suffice. In other cases, taking of additional evidence may be deemed inappropriate. Both actions subsume failure of justice as a condition precedent. Additional evidence must be necessary not 30 because it would be impossible to pronounce the judgment but because there would be failure of justice without it. 10. In State of Gujarat v. Mohan lal Jitamalji Porwal and Another, supra, the report of the Mint Master certifying that the articles in question were made of gold with 99.60 purity. Additional evidence must be necessary not 30 because it would be impossible to pronounce the judgment but because there would be failure of justice without it. 10. In State of Gujarat v. Mohan lal Jitamalji Porwal and Another, supra, the report of the Mint Master certifying that the articles in question were made of gold with 99.60 purity. The application was made by the Public Prosecutor for producing additional evidence in order to prove the report of the Mint Master, who certified that the article in question, was made of gold with 99.60 purity by invoking section 391 of the Cr.P.C., 1973 The High Court rejected the prayer on the ground that it did not consider it "expedient in the interests of justice to open a new vista of evidence" in view of the fact that crime had taken place six years ago. Reversing that view, the Supreme Court held that the mere fact that six years had elapsed, for which time-lag the prosecution was in no way responsible, was no good ground for refusing to act in order to promote the interests of justice in an age when delays in the Court have become a part of life and the order of the day. Apart from the fact that the alleged lacuna was a technical lacuna in the sense that while the opinion of the Mint Master had admittedly been placed on record, it had not been formally proven, the report completely supported the case of the prosecution that the gold was of the specified purity. To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. 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, held the Supreme Court. 11. In Zahira Habibulla H. Sheikh and Another v. State of Gujarat and Others, supra, the Supreme Court observed that the provisions of Sections 386 and 391 of the Cr.PC. have to be harmoniously construed 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 off. have to be harmoniously construed 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 off. Their Lordships observed that 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, by arriving at the truth, that is, the prevention of the guilty man's escape through some careless or ignorant proceedings before a court or vindication of an innocent person wrongfully accused and if the appellate court finds that certain evidence is necessary in order to enable it to give a correct and proper finding, it would be justified in taking action under Section 391. 12. Judgment of the Jammu & Kashmir High Court in Kashmira Singh v. State, supra, which was authored by Hon'ble Mr. Justice S. Murtaza Fazal Ali, as His Lordship then was, arose out of the facts that one Fatima Begum was going to the school via Boulevard when the accused stopped there and came out of his car and started teasing her and used obscene words towards her. Only one witness, who arrived at the scene of occurrence after the incident was over, was produced, and held to be a witness of hearsay. The complainant herself was not examined. The prayer was made before the High Court to direct either retrial or to summon the complainant. In those facts, it was held that result of accepting such a prayer would amount to punishing the accused for a fault, which was not committed by him but by the prosecution, which could not ask the appellate court to order retrial to fill up the lacunae and thereby putting the liberty of the accused again into jeopardy. The judgment in Kashmira Singh, supra, was relied by the Division Bench of the Jammu & Kashmir High Court delivered subsequently in appeal against acquittal filed by the State. Incidentally, the judgment of the Supreme Court relied by learned Amicus Curiae in Bir Singh, supra, was also penned by Hon'ble Mr. The judgment in Kashmira Singh, supra, was relied by the Division Bench of the Jammu & Kashmir High Court delivered subsequently in appeal against acquittal filed by the State. Incidentally, the judgment of the Supreme Court relied by learned Amicus Curiae in Bir Singh, supra, was also penned by Hon'ble Mr. Justice S. Murtaza Fazal Ali, wherein it was observed that the appellate court has power to take additional evidence in a suitable case, yet the discretion should not be exercised to fill up gaps or lacunae in the prosecution evidence. In that case, on the question as to exact time when FIR was filed, the prosecution had accepted the evidence of the Investigating Officer and had made no attempt before the trial court to clarify the matter. It was held that the High Court in appeal against acquittal would be justified in allowing additional evidence in question of filing FIR on the ground that evidence of Investigating Officer was not reliable. None of these cases are nearer to the facts of the present matter and therefore are distinguishable. 13. What would be the lacunae or gap and whether in the facts of the present case allowing the prosecution to have additional evidence to be recorded would tantamount to filling up of lacunae, has to be examined in the light of law, which has developed on the point. For this purpose, we may usefully refer to the judgment of the Supreme Court in State of Gujarat v. Mohanlal Jitamalji Porwal and Another, supra, wherein the Supreme Court relying on its earlier judgments on the point, expressed that the criminal court has ample power to summon any person for re-examination even after evidence of both the sides is closed but the jurisdiction of the court must obviously be dictated by the exigency of the situation and in such a situation fair play and good sense appear to be the only safe guides. Concurring with the view expressed by the Supreme Court in Rajeswawr Prasad Misra, supra, that whenever any additional evidence is taken or fresh evidence is remitted, it is absolutely necessary in the interest of justice that accused should be provided opportunity of hearing before recording evidence against him, the Supreme Court rejected the argument that directing additional evidence in the facts of the case would tantamount to filling up of lacunae. The Supreme Court affirmed the order of the High Court permitting the prosecution to recall one of the witness already examined and to summon two new witness to prove foreign marketing (marking) in gold. The High Court in that case has reversed the order passed by the trial court in the first revisional court, which rejected is the request of the prosecution to that effect on three counts, namely, first, the prosecution attempted fabricated evidence at a belated stage to fill up the lacunae, secondly request of the prosecution for taking additional evidence was made after the closure of defence and thirdly, a substantial prejudice would be caused to the appellant if the prosecution is allowed to adduce additional evidence. 14. The Supreme Court in Rajendra Prasad, supra, was dealing with a case where the appellant was facing trial along-with other persons for offence under the Narcotic Drugs and Psychotropic Substances Act, 1985, when the trial was almost at the end, the prosecution and defence closed their evidence on 19.09.1997 and the case was posted for further steps. When the case came up before the court on 07.03.1998, two of the witnesses, who were already examined, were resummoned at the instance of prosecution for the purpose of proving certain documents. They were further examined and evidence was once again closed. Then the matter was posted for hearing arguments. The Public Prosecutor again moved an application on 07.06.1998 seeking permission to examine PW-21 (Dalip Singh) and two other persons. The was opposed by the accused's counsel, but the trial court allowed it in exercise of its power under section 311 of the Cr.P.C., 1973 Revision filed before the High Court was dismissed. There against, the accused filed appeal by Special Leave to Petition before the Supreme Court. The argument before the Supreme Court was that the prosecution cannot be permitted to fill in lacunae by recourse to section 311 of the Cr.P.C., 1973 The Supreme Court repelling that argument, held in para 7 and 8 of the report as under :- "7. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act by saying that the Court could not fill the lacuna in the prosecution case. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act by saying that the Court could not fill the lacuna in the prosecution case. A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage 'to err is human' is the recognition of the possibility of making mistakes to which humans are proved. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up. 8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No parry in a trial can fore-closed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better." 15. To borrow the language of the aforesaid judgment of the Supreme Court "a lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses", in the facts of the case the Investigating Officer, by sheer negligence, omitted to incorporate the names of the aforementioned three persons in the calendar of witnesses filed along-with the charge-sheet and the Public Prosecutor also failed to correct 'that error either at the time of filing of the charge-sheet or otherwise by bringing the same to notice of the court during trial. As held by the Supreme Court, oversight in the management of the prosecution cannot be treated as irreparable loss. No party in a trial can be foreclosed from correcting errors. As held by the Supreme Court, oversight in the management of the prosecution cannot be treated as irreparable loss. No party in a trial can be foreclosed from correcting errors. If more witnesses are summoned and produced in additional evidence, no prejudice can be said to be caused to the accused simply because he would have the opportunity of cross-examining them. 16. The Supreme Court in Rambhau, supra, relied on by learned Amicus Curiae, observed that there is available a very wide discretion in the matter of obtaining additional evidence in terms of section 391 of the Code of Criminal Procedure, 1973 but this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a retrial or to change the nature of the case against the accused. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. However, it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard. Section 391 was introduced in the statute-book for the purpose of making it available to the court, not to fill up any gap in the prosecution case but to oversee that the concept of justice does not suffer. 17. In the facts of the case, however, it cannot be said that allowing the application to adduce additional evidence of the aforesaid three witnesses would tantamount to filling up any gap or lacunae. In the ordinary course, their names ought to have been included in the calendar of witnesses, it was indeed a serious lapse on the part of the Investigating Officer. And in this respect, we take note of the statement made by the learned Additional Advocate General that steps are being taken to initiate disciplinary proceedings against the Investigating Officer as also the then Public Prosecutor. 18. And in this respect, we take note of the statement made by the learned Additional Advocate General that steps are being taken to initiate disciplinary proceedings against the Investigating Officer as also the then Public Prosecutor. 18. As regards the apprehension that summoning of the witnesses may cause undue delay, we have been assured by the learned Additional Advocate General that Shri Raghuveer, A.S.I. of police, being posted in Jhunjhunu district would be immediately produced before the Court on the very first date so fixed by the trial court and the attendance of two witnesses, namely, Raja and Babool would also be procured by deputing special messengers and they would also be produced before the court within ten days from the date of issuance of summons by the court. 19. In view of the aforesaid discussion, the application filed by the State of Rajasthan is allowed with following directions (1) that the trial court would summon afore named three witnesses, namely, (1) Raghuveer Singh, Assistant Sub - Inspector, (2) Raja, and (3) Babool, by fixing a date within a fortnight of the date of issuance of such notice, which shall be issued soon after the receipt/production of a copy of this order before it; (2) that the prosecution shall be under an obligation to produce those witnesses on the first date so fixed by the trial court or any other date not later than ten days thereafter; (3) that the trial court shall appoint an Amicus Curiae on behalf of the accused, preferably the one who was earlier representing him, enabling the defence to cross-examine those witnesses; (4) that the evidence adduced by the afore named witnesses shall be put to the accused under Section 313 of the Cr.RC., so as to elicit his response; (5) that if the witnesses are not examined in the aforesaid two spells of ten days each, thus total twenty days, or if Raghuveer Singh is examined and the presence of other two witnesses cannot be procured, the trial court shall send its report along-with additional evidence so recorded along-with the record to this court immediately thereafter. 20. The Deputy Registrar (Judicial) of this court is directed to send the record of the case by a special messenger to the trial court forthwith. 21. The matter be listed soon after the receipt of the record.