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2017 DIGILAW 2529 (RAJ)

Sukha Ram v. State of Rajasthan

2017-11-17

PUSHPENDRA SINGH BHATI

body2017
ORDER : Pushpendra Singh Bhati, J. This criminal misc. petition under Section 482 Cr.P.C., 1973 has been preferred against the order dated 14.09.2016 passed by the learned Additional Sessions Judge No. 2, Nagaur in Criminal Appeal No. 161/2015, whereby the learned Additional Sessions Judge dismissed the application filed under Section 391 Cr.P.C., 1973 by the appellant/petitioner for summoning the additional evidence. 2. At the outset, learned counsel for the petitioner states that the appeal is yet to be decided. Learned counsel for the petitioner further states that the application under Section 391 Cr.P.C., 1973 was pertaining to the crucial evidence of Matu Ram, Ramniwas and Ganesh Ram, as they were the eye witnesses of the incident narrated in the FIR. 3. Learned counsel for the petitioner also states that the FIR against the transporter has already culminated into his conviction. 4. Learned counsel for the petitioner relied upon the judgment rendered by a Division Bench of this Court in Sharad Dhakar & Ors. v. State, reported in RLW 1998 (1) Raj. 195 , relevant portion of which reads as under:- "11. Section 391, Cr.P.C., 1973 proclaims that in dealing with any appeal under Chapter XXIX of the Code of Criminal Procedure, 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, and that the accused or his Pleader shall have the right to be present when the additional evidence' is taken. Section 391, Cr.P.C., 1973 forms an exception to the general rule that an appeal must be decided on the evidence, which was recorded by the trial Court, and being an exception to the general rule. The power under this Section should always, be exercised with circumspection and for meeting the ends of justice. The object of this section is to ensure that the justice is done between the prosecutor and the person prosecuted. The object of this section is also prevention of a guilty person's escape through some inadvertence, carelessness or ignorant proceedings at the stage of investigation or the trial or the vindication of a wrongfully accused person's innocence, where the same inadvertence, carelessness or ignorance has omitted to record circumstances essential to the elucidation of truth. The object of this section is also prevention of a guilty person's escape through some inadvertence, carelessness or ignorant proceedings at the stage of investigation or the trial or the vindication of a wrongfully accused person's innocence, where the same inadvertence, carelessness or ignorance has omitted to record circumstances essential to the elucidation of truth. Another reason for enactment of this section is to save public time by taking only the additional evidence necessary instead of remanding the whole case for examining once again the witnesses already examined and ordering for the de novo trial. It has further to be taken into consideration that the appellate court should also not take additional evidence to remove lacuna left by the prosecution. But at the same time, it should not ignore the interest of justice. The appellate court is fully empowered to take further evidence if it finds that some formal difficulty or lacuna may be apparent or some material evidence, which was not available before the trial Court or the same was subsequently found or that necessary evidence was not produced due to the inefficiency or inadvertence or carelessness of the investigating officer of the prosecutor. In other words, to avoid failure of justice should be the prime consideration for the appellate court in exercising discretion given under this Section. 12. In Rajeshwari Prasad Misra v. State of West Bengal AIR 1965 SC 1887 while interpreting provisions of Section 428 of the Old Code of Criminal Procedure, which were analogous to Section 391, Cr.P.C, 19731973, the Apex Court held that the Code gives power to the appellate court to take additional evidence, which, for the reasons to be recorded, it considers necessary, leaving a wide discretion to deal appropriately with different cases. The 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 has to be exercised sparingly and only in suitable cases. The Apex Court further held that 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 not, however, 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 nature of the case against him. 13. It must not, however, 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 nature of the case against him. 13. In Akhtar Ali v. State of Rajasthan 1976 WLN (UC) 574, the appellant was convicted under Sections 3/14 of Foreigners Act and 307/34 IPC. Under section 9 of the Foreigners Act, the burden was cast upon the appellant to prove that he was an Indian national. Before the trial Court, he could not produce necessary documents. However, in appeal he submitted voter list as well as the passport and the saving bank pass books, which were relevant to the question involved in the case. This Court held that it was in the interest of justice to admit those documents in evidence and keeping in view the facts and circumstances of the case, the case was remanded back to the trial court. 14. In State of Gujarat v. Mohanlal AIR 1987 SC 1321 the request of the State for adducing additional evidence was rejected by Gujarat High Court on the ground of delay, It was held by the Apex Court 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 and it was, therefore, directed that the additional evidence be allowed. In that case, the prosecution wanted to adduce the additional evidence to prove a letter received from the Mint Master certifying that the article in question was made of gold having purity of 99.60%. It was further held that the alleged lacuna was technical one in the sense that while the opinion of the Mint Master had admittedly been placed on record, it had not been formally proved. The report completely supported the prosecution case that the Gold was of specified purity. It was further held that the alleged lacuna was technical one in the sense that while the opinion of the Mint Master had admittedly been placed on record, it had not been formally proved. The report completely supported the prosecution case that the Gold was of specified purity. The Apex Court observed that to deny the opportunity to remove such a formal defect was to abort a case against an economic offender, and that the ends of justice are not satisfied only when an accused in a criminal case is acquitted and that 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. 15. In the instant case, the prosecution has filed the report of the ballistic expert in respect of the bullet taken out from the body of the deceased but the corresponding Malkhana and D.D. entries about the movement of the said bottle containing the bullet were not filed along with the challan. Similarly the D.D. & Malkhana entries regarding the deposit of the sealed packet of the revolver and the live cartridges, alleged to have been recovered from the person of appellant Manish Dixit of police station Manak Chowk and such entries of the daily diary and Malkhana register of police station Shastri Nagar in respect of the ornaments recovered at the instance of the said appellant were not filed along with the charge sheet by the SHO PS Sodala, due to the lack of co-ordination among various members of the investigating team and for his lack of vision, negligence and inadvertence. Thus, these relevant documents forming the vital link evidence were not placed before the trial Court. For the negligence, carelessness or inadvertence of the officer, who submitted the challan in this case, the interest of justice cannot be allowed to be suffer. As mentioned earlier, the afore mentioned entries of the daily diary and Malkhana registers of the aforementioned police stations prima facie appear to have been made in regular course of business and the genuineness thereof cannot be doubted in the first instance. These entries fall within the meaning of public document. In our considered opinion, it is necessary to take these documents on record as additional evidence for the fair and final adjudication of these appeals. These entries fall within the meaning of public document. In our considered opinion, it is necessary to take these documents on record as additional evidence for the fair and final adjudication of these appeals. In these circumstances, if these documents are allowed to be taken into evidence, at this stage in our considered opinion, no prejudice shall be caused to the accused appellants because they will be at liberty to rebut those entries and to cross examine the prosecution witnesses. The alleged incident took place on 23.2.1994 and the trial in this case has been concluded expeditiously and without any due delay. The witnesses, whose names have been mentioned in the application filed by the prosecution by the learned Public Prosecutor have simply to formally prove these documents, in case the appellant do not admit their genuineness Under Section 294, Cr.P.C., 1973" 5. Learned Public Prosecution has vehemently opposed the submissions made on behalf of the petitioner. 6. This Court finds that the aforementioned precedent law clearly lays down that that the object of Section 391 Cr.P.C., 1973 is to ensure that the justice is done between the prosecutor and the person prosecuted. The objection of this Section is also prevention of a guilty person's escape through some inadvertence, carelessness or ignorant proceedings at the stage of investigation or the trial or the vindication of a wrongfully accused person's innocence, where the same inadvertence, carelessness or ignorance has omitted to record, circumstances essential to the elucidation of truth, then the invocation of Section 391 Cr.P.C., 1973 was justified. 7. The same precedent law also lays down that if the witnesses are allowed and no prejudice is caused to the prosecution witnesses, then the power under Section 391 Cr.P.C., 1973 could be invoked. 8. In light of the aforementioned precedent law of the Division Bench of this Court, the present misc. petition is allowed and the impugned order dated 14.09.2016 passed by the learned Additional Sessions Judge No. 2, Nagaur in Criminal Appeal No. 161/2015 is quashed and set aside and the application under Section 391 Cr.P.C., 1973 filed by the petitioner for summoning the additional evidence is allowed. The learned court below is directed to proceed accordingly.