Rajasthan High Court - Jaipur
Pankaj And Ors vs State Of Rajasthan Through P P on 7 January, 2019
Author: Munishwar Nath Bhandari
Bench: Munishwar Nath Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 720/2012
Pankaj And Ors
----Appellant
Versus
State Of Rajasthan Through P P.
----Respondent
For Appellant(s) : Mr. AK Gupta with Ms. Mudita Sharma For Respondent(s) : Mrs. Sonia Shandilya - PP Mr. Vivek Gaur for Mr. Manish Gupta -
for complainant HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE BANWARI LAL SHARMA Order 07/01/2019 Heard on the Application (Inward No.92403/2018), filed under Section 391 Cr.P.C. by the prosecution.
The accused-appellants were convicted and sentenced for the offences under Sections 364A, 302, 120B and 201 IPC. The appellants preferred an appeal to challenge the order of the trial court and prayed for their acquittal. The appeal came up for hearing before this court after submission of the paper book. In the midst of arguments, learned Public Prosecutor prayed for time to submit an application under Section 391 Cr.P.C. and pursuant to the liberty, the application has been filed.
Learned Public Prosecutor submits that in a case of kidnapping a girl (Megha) at the age of four years followed by her murder, the prosecution caused investigation. They recorded statements of witnesses and collected material. It includes (Downloaded on 05/06/2021 at 07:40:39 PM) (2 of 8) [CRLA-720/2012] recovery of mobile sets with call details so as to connect the accused-appellants with the crime. It is for the reason that after kidnapping of girl-Megha, two calls were received by the complainant for ransom. The mobile numbers of those calls were disclosed in the investigation. The prosecution collected call details of SIMs of the mobile sets so recovered from the accused. Unfortunately, those call details were not produced in the evidence due to oversight and inadvertence.
A register brought by PW6-Chirayu Chawla for issuance of SIM to the accused was not taken in evidence by the court below though it was material to prove the case. A reference of statements of PW1-Anil Kumar Jain and PW2-Sunil Kumar Jain has been given apart from Exhibit-P10, 11, 12 and Exhibit-P23 to show recovery of mobile sets and SIMs.
The IMEI numbers of the mobile sets were also detected by the prosecution so as to show that SIMs used by the accused were from the mobile sets, so recovered from them. They were used to to call the complainant for ransom. A reference of statement of PW26-Om Prakash Yadav, Investigating Officer, has also been given. The prayer is for re-examination/recall of the said witness to prove call details. An oral prayer was also made to recall PW6- Chirayu Chawla along with a register to show issuance of SIMs to the accused.
To support the arguments, learned Pubic Prosecutor has referred judgments of the Apex Court in the case of Mannan Shaikh & Ors. Vs. State of West Bengal & Anr., reported in (2014) 13 SCC 59, Natasha Singh Vs. Central Bureau of Investigation (State), reported in (2013) 5 SCC 741 and in the case of Mina Lalita Baruwa Vs. State of Orissa & Ors., (Downloaded on 05/06/2021 at 07:40:39 PM) (3 of 8) [CRLA-720/2012] reported in (2013) 16 SCC 173. Therein, the Apex Court has dealt with the issue. It is held that vital evidence should be allowed by the court. A prayer is made to allow the application.
Learned counsel for appellants has opposed the application. It is submitted that Section 391 Cr.P.C. can be invoked only to bring certain documents on record, as given under Section 293 Cr.P.C.
The evidence under Section 391 Cr.P.C. is subject to the provisions of Chapter XXIII. The prosecution wants to recall the witnesses apart from production of documents. It is not permissible, looking to the nature of documents. The oral evidence cannot be produced under Section 391 Cr.P.C.
It is also stated that call details were recovered by the police during the investigation but were not produced in trial. It is now to fill up the lacuna, an application under Section 391 Cr.P.C. has been filed. It is not a case where the prosecution could not collect material evidence during the course of investigation or it came to their notice later on so as to be produced at the appellate stage.
It is also stated that an application under Section 391 Cr.P.C. has been filed with delay. The appeal is pending before this court for last many years. No application was filed by the prosecution at the initial stage. The application has been filed in the midst of arguments. Accordingly, on the aforesaid ground also, the application deserves to be dismissed.
Learned counsel for appellants has made reference of certain documents so exhibited and the statements of witnesses so as the recovery of mobile sets from the accused. It is submitted that when recovery of mobile sets from the accused itself is doubtful, (Downloaded on 05/06/2021 at 07:40:39 PM) (4 of 8) [CRLA-720/2012] thus no purpose remains to take additional evidence in the form of call details or a register on record.
Learned counsel has given reference of judgments of the Apex Court in the case of Rajeshwar Prasad Misra Vs. The State of West Bengal & Anr., reported in AIR 1965 SC 1887 and in Bir Singh & Ors. Vs. The State of Uttar Pradesh, reported in AIR 1978 SC 59 apart from judgments of Gujarat High Court in the case of State of Gujarat Vs. Rajubhai Dhamirbhai Bariya & Ors., reported in 2004 CRL. L.J. 771 and of Andhra Pradesh High Court in the case of M/s. Chennakesha Bandage & Ors. Vs. State of A.P., reported in 2010 (2) Crimes 399 (A.P.). It is to show that in what cases, an application under Section 391 Cr.P.C. can be allowed. It cannot be with delay and to fill up the lacuna left by the prosecution during the course of investigation or trial. A prayer is, accordingly, made to dismiss the application.
We have considered rival submissions of learned counsel for the parties and perused the record.
It is a case where an FIR was lodged after a girl, at the age of four years, was found missing. Her dead body was thereupon recovered and prior to it, there was a telephonic call for ransom. The mobile numbers came on the SIM belonging to the complainant, thus it was noticed during the course of investigation. The police collected evidence against accused and therein, they even collected call details of the SIMs, said to have been used by the accused. It was based on IMEI numbers of mobile sets. Despite collection of the call details, they were not produced in the trial.
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(5 of 8) [CRLA-720/2012] PW6-Chirayu Chawla was produced by the prosecution to prove SIM used by the accused was issued by him. It was with an entry in the register. The register was not produced by the prosecution and, otherwise, the court did not ask for production of the said register despite the statement of witness that he has brought it, thus an oral prayer has been made to recall PW6.
Learned counsel for appellants has raised serious objection to the prayer made by learned Public Prosecutor. It is by referring the statements of the witnesses and even documents.
We are refraining ourselves to make comment in reference to the statements of witnesses and the documents while deciding the application under Section 391 Cr.P.C. It is to avoid any conclusions in reference to evidence to be brought by the prosecution. We are, however, dealing with the issues raised by learned counsel for appellants.
It is stated that evidence at the appellate stage should not be allowed to fill up the lacuna left by the prosecution in the investigation or trial. A reference of judgment of Andhra Pradesh High Court in the case of M/s. Chennakesha Bandage & Ors. (supra) as well as of the Apex Court in the case of Bir Singh (supra) has been given.
We have perused the judgments aforesaid. It is no doubt true that evidence at the appellate stage should not be allowed to fill up the lacuna left by the prosecution during the course of investigation or trial. In the case of Rajeshwar Prasad Misra (supra), the Apex Court held that power must be exercised sparingly and only in a suitable case. The additional evidence should not be received in such a way so as to cause prejudice to the accused. The order must not ordinarily be made if the (Downloaded on 05/06/2021 at 07:40:39 PM) (6 of 8) [CRLA-720/2012] prosecution had a fair opportunity but was not availed unless the requirements of justice dictate otherwise. Section 391 Cr.P.C. gives discretion to the appellate court to take evidence. The discretion for it has to be exercised judiciously. It should be in an appropriate case, that too, for the ends of justice.
In the instant case, the call details were obtained by the prosecution and are on record but were not produced in trial. It can be taken to fill up the lacuna left by the prosecution during the course of trial. If we conclude with the aforesaid, it would be fatal in a given case. It is when prosecution did not produce evidence to bestow favour to the accused. It is despite availability of evidence. The issue, thus needs to be decided. The court should always try to bring home the truth. If some lacuna was kept by the prosecution during the course of investigation or trial inadvertently or deliberately, then to allow evidence at the appellate stage to bring home the truth.
In the instant case, the call details were taken, yet prosecution did not produce it. It can be only to benefit the accused. The purpose of provisions of Section 391 Cr.P.C. is to take evidence for the ends of justice. It has been held by the Apex Court in the case of Rajeshwar Prasad Misra (supra). The call details are relevant and material in reference to calls received by the complainant for ransom.
We find that application under Section 391 Cr.P.C. has been submitted to bring home the truth and for the ends of justice.
Learned counsel for appellants has raised an objection about delay in making application. It is no doubt true that appeal remained pending and no application under Section 391 Cr.P.C. was filed. It has been filed while the appeal was in the midst of (Downloaded on 05/06/2021 at 07:40:39 PM) (7 of 8) [CRLA-720/2012] arguments. The delay is not always fatal to maintain the application. It depends on the circumstances. The court can exercise its discretion in a given case.
Learned Public Prosecutor was wise enough to realise the inadvertence of prosecution in the trial. In view of the above, the application under Section 391 Cr.P.C. was filed immediately after realising the aforesaid. We find that in the interest of justice and to bring home the truth of the case, the delay is not fatal in this case. Accordingly, we are unable to accept even second argument of learned counsel for appellants.
The third argument is in reference to Section 391(4) Cr.P.C. It is submitted that an order under Section 391 Cr.P.C. can be passed subject to provisions of Chapter XXIII. Learned counsel for appellants has made reference of Section 293 Cr.P.C. It is to show that only reports of certain government scientific experts can be produced by way of evidence at the appellate stage. We are unable to accept the argument aforesaid.
The purpose of sub-section (4) of Section 391 Cr.P.C. is nothing but to allow evidence at the appellate stage in the manner provided under Chapter XXIII. Chapter XXIII Cr.P.C. provides the manner of production of the evidence. It does not rule that evidence cannot be produced other than what has been given under Section 293 Cr.P.C. Not only oral but documentary evidence can be taken at the appellate stage, as provided under Chapter XXIII Cr.P.C. The issue aforesaid has been dealt with by this court in the case of Sarita & Anr. Vs. Munni Devi, SB Criminal Misc. Petition No.4718/2014, decided on 24 th April, 2015. The judgment aforesaid was given when a reverse argument was raised to urge that under Section 391 Cr.P.C., only oral evidence can be taken (Downloaded on 05/06/2021 at 07:40:39 PM) (8 of 8) [CRLA-720/2012] and not the documentary evidence. This court, after referring the definition of "evidence" given under Section 3 of the Indian Evidence Act, 1872, held that evidence means oral as well as documentary evidence and, accordingly, allowed the application under Section 391 Cr.P.C. In view of the above, we are of the opinion that reference of Chapter XXIII under Section 391(4) Cr.P.C. cannot be made limited in reference to Section 293 Cr.P.C. but has to be in reference to Chapter XXIII Cr.P.C. as a whole.
In view of the above, we are inclined to accept the application submitted by learned Public Prosecutor for recalling/re- examining the witnesses i.e. Mr.Chirayu Chawla (PW6) and Mr. Om Prakash Yadav (PW26) apart from production of relevant documents i.e. the call details and the register.
With the aforesaid, Application (Inward No.92403/2018) under Section 391 Cr.P.C. is allowed. Let summons be issued to those witnesses on their present addresses.
At this stage, learned counsel for appellants prayed for sending the case to the trial court for recording of the evidence. We are unable to accept the said request because Section 391 Cr.P.C. permits recording of the evidence by the appellate court also and, accordingly, we have issued summons for calling of the witnesses to record their statements under Section 391 Cr.P.C. and also for the documents. It is, otherwise, in the interest of parties as it would curtail further delay in the matter. After service of summons, the accused would also be called as evidence would be recorded in their presence.
(BANWARI LAL SHARMA),J (M.N. BHANDARI),J
FRBOHRA
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