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2018 DIGILAW 587 (ALL)

WASIULLAH v. STATE OF U. P.

2018-03-12

A.P.SAHI, RAJEEV MISRA

body2018
JUDGMENT & ORDER : 1. Heard Mr. Abhishek Gupta, Advocate, holding brief of Mr. Dileep Kumar, learned counsel for the appellants. 2. This application dated 5th May, 2015 under Section 391, Cr.P.C. was moved when the Second Bail Application No. 253114 of 2014 was pending before this Court. The application was filed praying for admitting as additional evidence, the ballistic report dated 4th November, 2004 in Case Crime No. 200 of 2004 giving rise to Sessions Trial No. 217 of 2004, Police Station Kotwali District Basti. The ballistic report appears to have been sought for by the investigation after recovery of two fire arms one of which was a factory made revolver stated to be that of one of the accused Inayatullah and the other a country made weapon. The present application has been filed by Mr. Wasiullah one of the co-accused and in the affidavit filed in support of this application, it has been alleged that when this criminal appeal was listed before the previous Bench on 11th March, 2015, an oral direction had been issued to file additional evidence. We have perused the order sheet and we do not find any such order recorded in the order sheet or this application. 3. It appears that the learned counsel for the appellant had moved this application along with the allegations of the ballistic report having been sent to the Court of the Chief Judicial Magistrate on 5th November, 2005. This information was based on the photostat copy of the question answer dated 9th July, 2014 that had been moved before the Chief Judicial Magistrate. The question answer is of the same date and is Annexure-4 to the affidavit. There is no indication that in spite of having received this information, an application for additional evidence before this court was moved on 5th May, 2015 almost after ten years of obtaining the said information. 4. The affidavit further discloses that on 1st of May, 2015, the deponent of the affidavit Dr. Tabarak Husain who is the brother of appellant Wasiullah applied for a certified copy of the ballistic report dated 4th November, 2014 from the record of the criminal appeal pending before this Court, but the same was not provided for. 4. The affidavit further discloses that on 1st of May, 2015, the deponent of the affidavit Dr. Tabarak Husain who is the brother of appellant Wasiullah applied for a certified copy of the ballistic report dated 4th November, 2014 from the record of the criminal appeal pending before this Court, but the same was not provided for. It is thus, evident from the facts narrated in the affidavit that the ballistic report was sought to be obtained from this court in the month of May, 2015 after the said oral observations are stated to have been made on 11th March, 2015. 5. The present application was accordingly filled on 5th May, 2015. 6. There is nothing in the affidavit in support of this application to explain as to why the appellant did not choose to take any steps for securing such document and placing it either before the Trial Court as an exhibit in its defence or even before this court after almost four years of the pendency of the appeal. The defence had ample opportunity before the trial court to avail any benefit in view of the provisions of Section 292, Cr.P.C. read with Section 74 of the Indian Evidence Act. 7. Learned counsel for the appellant vehemently urged that the applicant-appellant had no knowledge about the said document. 8. We are unable to accept this oral contention in the absence of such deposition on oath or otherwise, keeping in view the contents of the affidavit. Secondly, there is no explanation as to what had prevented the applicant-appellant in spite of having knowledge and the exercise of due diligence to bring on record such a document. Thirdly, the document is a photostat copy which is not admissible in evidence. Fourthly, the learned A.G.A. has categorically stated during the course of argument after having filed a counter-affidavit that the prosecution did not rely on this document, and at this stage as well the prosecution does not propose to rely on the said document as ample direct evidence is available. 9. Apart from these facts, what we find is that the direction of the Court accepting the request of the appellant to file a certified copy of the ballistic report vide order dated 11.5.2016, appears to have been an observation without considering the fact that the ballistic report was admittedly not part of the documents on record. 9. Apart from these facts, what we find is that the direction of the Court accepting the request of the appellant to file a certified copy of the ballistic report vide order dated 11.5.2016, appears to have been an observation without considering the fact that the ballistic report was admittedly not part of the documents on record. Consequently, the certified copy could not be issued either by the trial court or even by this Court where the records had already arrived during the pendency of the this appeal. 10. There is nothing to indicate as to what prejudice may be caused to the accused or it could have caused to the accused during the trial. No likelihood of failure of justice has been pointed out. 11. Section 391, Cr.P.C. is an exception that can be resorted to subserve the ends of justice and prevent any injustice. It is somewhat akin to Order 41, Rule 27, C.P.C. The need and desirability to receive evidence is distinct from it's efficacy reliability and acceptability. It cannot be a device to fill up a lacunae in spite of having knowledge of the existence of such material. The flip side of the coin is that an opportunity to the prosecution to remove a formal defect should not be denied if the evidence is intrinsically connected with the case of the prosecution. 12. In the instant case as recorded above the applicant had knowledge of the fact that two weapons recovered and seized had been sent for ballistic examination. This is fortified by the statement of PW-9 who had deposed before the Court about the weapons sent for ballistic examination. No suggestion was put forth to the said witness on the issue of the report of ballistic expert by the defence counsel during cross-examination. The deposit in the arms store of one of the weapon's was made after the date of the incident and was recovered after about a month. The trial court took notice of these facts and held that the ballistic report was not exhibited and relied on by the prosecution, yet even otherwise it would not make a difference in it's conclusion that was based on direct evidence and corroborative medical evidence. Thus the trial court did find that absence of the ballistic report would not bring out a different result. Thus the trial court did find that absence of the ballistic report would not bring out a different result. There is a complete absence of cross-examination of PW-6 and PW-9 by the defence on this material. Had any attempt been made by the defence to place reliance on such material by putting it across to the prosecution witnessess, the defence could have requested for any such evidence to corroborate their stand. This having not been done, there is nothing exceptional that might cause any prejudice to the defence as it had full opportunity before the trial court to do so. 13. Even otherwise the production of such document at this stage does not appear to be necessary as it does not defeat the cause of justice. The weapon was produced in Court and was a material exhibit. The recovery of one of the weapon's was almost after a month. The trial Court therefore concluded that not much would turn if the ballistic report was not there in view of the direct evidence on record. This conclusion can always be tested, if criticised by the appellants when the appeal is heard finally, but no cogent ground has been made out for this delayed request. There is no explanation in the affidavit as to why, in spite of knowledge about the ballistic report, even after the trial Court judgment, no such attempt was made for years together. Knowledge to the accused stands established from para 80 of the judgment of the trial Court where the counsel for the defence categorically took this plea to avail advantage of non-exhibition of this document. This is not a case where the prosecution was castigated for suppression of any material fact. 14. We do not find it necessary to allow this application as it does not conform to the ingredients of Section 391, Cr.P.C. nor do we find any prejudice being caused to the appellants by non-admission of such document in this appeal. 15. The application is, accordingly, rejected. 16. This application having been disposed off, let the matter be now listed for hearing.