Gujarat High Court
Asim @ Munmun @ Asif Abdulkarim Solanki vs State Of Gujarat on 29 September, 2021
Author: A.J. Desai
Bench: A.J.Desai, Nirzar S. Desai
R/CR.A/249/2019 IA JUDGMENT DATED: 29/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 7 of
2019
In R/CRIMINAL APPEAL NO. 249 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI Sd/-
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to No see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the No judgment ?
4 Whether this case involves a substantial question of law No as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== ASIM @ MUNMUN @ ASIF ABDULKARIM SOLANKI Versus STATE OF GUJARAT ========================================================== Appearance:
MR YOGESH LAKHANI, SR. ADVOCATE with MR VAIBHAV A VYAS for the PETITIONER(s) No. MR MITESH AMIN, PUBLIC PROSECUTOR with MR JK SHAH, ADDL. PUBLIC PROSECUTOR for the RESPONDENT(s) No. ========================================================== CORAM:HONOURABLE MR. JUSTICE A.J.DESAI and HONOURABLE MR. JUSTICE NIRZAR S. DESAI Date : 29/09/2021 IA JUDGMENT (PER : HONOURABLE MR. JUSTICE A.J.DESAI) RULE. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of the respondent - State of Gujarat.
[1.0] By way of present application under Section 391 of the Page 1 of 14 Downloaded on : Fri Oct 01 03:24:49 IST 2021 R/CR.A/249/2019 IA JUDGMENT DATED: 29/09/2021 Code of Criminal Procedure, 1973 (hereinafter referred to as "Code"), the appellant - convict - original accused has prayed to permit him to produce evidence of 13 witnesses referred to in the said application as defence witnesses, whose statements were recorded by the Investigating Officer regarding the plea of alibi of the appellant - applicant as well as witnesses regarding the phone call details of the applicant in Sessions Case No.105 of 2013, in which the present applicant has been convicted for the offence punishable under Section 302 read with Sections 34 and 114 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and sentenced to undergo life imprisonment.
[2.0] The said application was heard by the coordinate Bench and by I.A. Judgment dated 10.04.2019, the captioned application was disposed of by observing that at the time of final hearing of the criminal appeal, the application filed by the applicant under Section 391 of the Code shall be considered.
[2.1] The said decision dated 10.04.2019 was challenged before the Hon'ble Apex Court by way of Criminal Appeal No.184 of 2020 [Special Leave Petition (Cri.) No.8087 of 2019]. While disposing of the aforesaid criminal appeal, the Hon'ble Apex Court in its order dated 28.01.2020 observed as follows:
"Leave granted.
The Appellant was convicted for an offence under Section 302 read with Section 34 and Section 114 of the Indian Penal Code (IPC) apart from Section 35 of the Gujarat Police Act, 1951. He was sentenced to life imprisonment under Section 302. Aggrieved by the conviction and sentence, the Appellant filed a criminal appeal before the Page 2 of 14 Downloaded on : Fri Oct 01 03:24:49 IST 2021 R/CR.A/249/2019 IA JUDGMENT DATED: 29/09/2021 High Court of Gujarat at Ahmedabad. The Appellant filed an application under Section 391 of the Code of Criminal Procedure (Cr.P.C.) seeking permission to produce additional evidence to substantiate his plea of alibi. The said application was opposed by the State. By an order dated 10.4.2019, the High Court disposed of the application by observing that the Appellant is at liberty to submit an appropriate application at the time when the appeal is finally heard. The High Court relied upon the judgment of this Court reported in Union of India versus Ibrahim Uddin [2012(8) SCC 148] to hold that the application for taking additional evidence on record should be heard at the time of final hearing of the appeal. The judgment of this Court pertains to an application filed under Order XLI Rule 27 of the Code of Civil Procedure ('CPC') for adducing additional evidence. The application filed by the Appellant in this case is under Section 391 of the Cr.P.C., which empowers the Appellate Court to either take evidence by itself or direct the evidence to be taken by a Magistrate or a Court of Session, if it is satisfied that the additional evidence is necessary, after recording reasons. Ms. Aastha Mehta, learned counsel appearing for the State of Gujarat submitted that the High Court was right in holding that the application under Section 391 Cr.P.C. requires to be decided when the appeal is finally heard.
Section 391 of the Cr.P.C. does not impose any restriction as to when the application filed for adducing additional evidence should be heard by the High Court. In fact, we are of the opinion that it is desirable that an application filed under Section 391 should be heard immediately after it is filed without waiting for the appeal Page 3 of 14 Downloaded on : Fri Oct 01 03:24:49 IST 2021 R/CR.A/249/2019 IA JUDGMENT DATED: 29/09/2021 to be finally heard.
Without making any observation on the merits of the case or the application filed under Section 391, we request the High Court to hear the application under Section 391 at the earliest.
The order passed by the High Court is set aside. The appeal is allowed."
In view of the above order passed by the Hon'ble Apex Court, the application is revived and has been taken up for hearing without taking the criminal appeal for final hearing.
[3.0] The short facts arising from the record of the case are as follows:
[3.1] That, one Khodabhai Labhubhai Jogarana, resident of Botad lodged an FIR on 04.03.2013 with Botad Police Station against four accused persons including the present applicant alleging that the deceased was attacked by four persons who are named in the FIR in which one Kamleshbhai was attacked who ultimately succumbed to the injuries. The applicant came to be arrested on 06.03.2013.
On completion of investigation, charge-sheet was filed and case being triable by the Court of Sessions was committed and came to be numbered as Sessions Case No.105/2013.
[3.2] The prosecution examined in all 34 witnesses. None of the accused examined any witness in their defence and therefore, statements under Section 313 of the Code came to be recorded by the learned Sessions Judge.
That, after full-fledged trial, the learned Sessions Judge Page 4 of 14 Downloaded on : Fri Oct 01 03:24:49 IST 2021 R/CR.A/249/2019 IA JUDGMENT DATED: 29/09/2021 convicted two accused whereas two accused were acquitted from the charges leveled against them.
[3.3] That, the criminal appeals filed by the convicted accused are admitted and pending for final hearing. The application filed by the applicant under Section 389 of the Code for suspension of sentence is already dismissed.
[4.0] By way of present application, the case put forth by the applicant is that the incident had taken place at Botad whereas the applicant is residing at Anand since last 15 years and was present in the city of Anand itself on 04.03.2013 i.e. on the date when the offence took place. Though there was investigation with regard to the plea of alibi raised by the applicant, the investigating agency had recorded several statements of residents of Anand but did not produce the same on record.
[5.0] Learned Senior Advocate Mr. Yogesh Lakhani assisted by learned advocate Mr. Vaibhav Vyas appearing for the applicant has taken us through the deposition of two police officers who had investigated the case viz. (1) Dharmendrasinh Pravinsinh Vaghela (PW-33, Exh.364) and (2) Dineshsinh Mahavirsinh Chauhan (PW-34, Exh.384) and the observations made in the judgment of the learned Sessions Judge while dealing with the case of alibi. He would submit that in the chief-examination of Dharmendrasinh Vaghela (PW-33), who had initially investigated the case has admitted in his chief-examination itself that it was the case of the applicant from the beginning that he was at Anand on 04.03.2013 and has examined the CDR of mobile belonging to the applicant which prima facie establishes that the said mobile was at Anand. He has also taken us through the cross-Page 5 of 14 Downloaded on : Fri Oct 01 03:24:49 IST 2021
R/CR.A/249/2019 IA JUDGMENT DATED: 29/09/2021 examination of witnesses wherein this police officer has admitted that he was in charge of the investigation in connection with the crime from 04.03.2013 to 12.03.2013 during which period nothing was discovered at the instance of the present applicant and has further admitted that the mobile having the SIM cards was examined and the call details with regard to said SIM cards were also perused which suggested that location of SIM card was at Anand on 04.03.2013 at the time of incident.
The said police officer has also admitted in his cross- examination that the applicant is using the SIM card since last two years. As per his own admission in the cross-examination, this police officer had visited Anand on 08.03.2013 and had recorded the statements of 13 witnesses including the employees of police department, some officers, Advocates and other witnesses who had disclosed that on 04.03.2013 at around 6.30 hours when the alleged incident took place at Botad, the applicant herein was at Anand.
[5.1] Learned Counsel Mr. Lakhani has also taken us through the deposition of another witness Dineshsinh Chauhan (PW-34), who had submitted the charge-sheet, and would submit that this witness has also admitted in his cross-examination that he has examined the papers of charge-sheet and scrutinized the same. He has also gone through the statements recorded by his predecessor i.e. Dharmendrasinh Vaghela (PW-33) which suggests that location of the mobile belonging to the applicant was at Anand. He would submit that this witness has also admitted that there is no connection between these four accused who were initially arrested. In such circumstances, learned advocate engaged by the applicant did not think it fit to examine any witness as provided under Section 231 read with Section 233 Page 6 of 14 Downloaded on : Fri Oct 01 03:24:49 IST 2021 R/CR.A/249/2019 IA JUDGMENT DATED: 29/09/2021 of the Code. This argument about the say of these two important Investigating Officers were brought to the notice of the learned Sessions Judge and plea of alibi was raised but the learned Sessions Judge did not accept the said submission only on the ground that the accused has missed to avail opportunity provided under Section 231 read with Section 233 of the Code as well as under Section 313 of the Code. This aspect has been referred to in paragraph 44 of the judgment delivered by the learned Sessions Judge, which was read over by the learned Counsel Mr. Lakhani.
[5.2] Learned Counsel Mr. Lakhani would submit that if the present application is not allowed and the important witnesses whose statements were recorded by the Investigating Officers themselves and have admitted in their cross-examinations are not permitted to be examined by defence, then it would be great injustice to the applicant. He would submit that there is ample power vested with the appellate Court under Section 391 of the Code to allow additional evidence if the Court finds that it is necessary for securing the ends of justice. In support of his submissions, learned Counsel Mr. Lakhani has relied upon the decision of the Hon'ble Apex Court in the case of Brigadier Sukhjeet Singh (Retired) MVC vs. State of Uttar Pradesh and Others reported in (2019) 16 SCC 712. He would further submit that if these witnesses are permitted to be examined as defence witnesses, no prejudice would be caused to the prosecution and true facts would come on record, which would enable the appellate Court to decide the case. He, therefore, would submit that the application be allowed.
[6.0] On the other hand, learned Public Prosecutor Mr. Mitesh Page 7 of 14 Downloaded on : Fri Oct 01 03:24:49 IST 2021 R/CR.A/249/2019 IA JUDGMENT DATED: 29/09/2021 Amin has vehemently opposed this application. He would submit that if such applications are entertained at belated stage, floodgates of such applications would get open. He would submit that the accused had ample opportunity to enter his defence under Section 233 of the Code which he has missed before the trial Court. He would submit that the applicant was aware about statements recorded by the Investigating Officers, however chose not to examine any witness in that regard. Having been convicted under Section 302 read with Sections 34 and 114 of the IPC, present application has been filed to fill up the lacuna which is not permissible under the law.
[6.1] He would further submit that even the applicant - accused missed his second chance of examining the witnesses where further statement under Section 313 of the Code was recorded by the learned Sessions Judge. He, therefore, would submit that the application be dismissed.
[7.0] We have heard learned advocates appearing for respective parties.
Present application has been taken up for hearing in view of the order passed by the Hon'ble Apex Court as referred to hereinabove.
Section 391 of the Code reads as under:
"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 Page 8 of 14 Downloaded on : Fri Oct 01 03:24:49 IST 2021 R/CR.A/249/2019 IA JUDGMENT DATED: 29/09/2021 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."
This Court is aware that while exercising the powers under Section 391 of the Code, the same is required to be used sparingly and in rarest of the rare cases. Additional evidence can be recorded either by the appellate Court itself or by the trial Court. Keeping in mind the said provision as well as the ratio laid down by the Hon'ble Apex Court in the case of Brigadier Sukhjeet Singh (Retired) (Supra), we have dealt with the present application.
[7.1] We have gone through the deposition of Dharmendrasinh Pravinsinh Vaghela (PW-33) who has initially investigated the case and had arrested the applicant on 06.03.2013. Said witness has specifically stated in his examination-in-chief that it was the case of the applicant from the beginning that on 04.03.2013, he was neither in Botad nor at the scene of offence but was at Anand, which is around 200 km away from the place of offence. He has also admitted in his examination-in-chief that he has examined the CDR details of mobile belonging to the applicant wherein the location of the mobile on the date of incident was found at Anand.
Page 9 of 14 Downloaded on : Fri Oct 01 03:24:49 IST 2021R/CR.A/249/2019 IA JUDGMENT DATED: 29/09/2021 [7.2] It is pertinent to note that in the cross-examination said witness has admitted that the applicant is using both the SIM cards since last two years and operating from Anand city where he is residing from last 15 years. He has also admitted that statement of 15 witnesses including police personnel, some officers, Advocates were recorded by him who had disclosed about the presence of applicant at Anand itself. Similar is the say of Dineshsinh Mahavirsinh Chauhan (PW-34), another Investigating Officer who had submitted the charge-sheet. IO Dineshbhai Chauhan has also admitted about the perusal of CDR in connection with the SIM cards used by the applicant in his mobile. When a specific question was asked to him about production of call details or statement of those witnesses who are residents of Anand, he had stated about presence of the applicant at Anand on the day of incident, he had refused to produce the same.
[7.3] It is true that the legislature has provided appropriate procedure allowing the accused to adduce any evidence in nature of documentary as well as oral evidence at appropriate stage under Section 233 of the Code. The accused may apply for issuance of any process for compelling the attendance of any witness or production of document or thing, however not taking support of section 233 of the Code or not examining or producing any evidence itself, in our opinion would not come in the way to deal with a case when the Court feels that there is need to decide the case in its true prospect to secure the ends of justice. In the facts of the present case as discussed hereinabove and when the learned Sessions Judge has discarded the plea of alibi raised by the applicant - accused only on the ground of non-
Page 10 of 14 Downloaded on : Fri Oct 01 03:24:49 IST 2021R/CR.A/249/2019 IA JUDGMENT DATED: 29/09/2021 examining of witness, we are of the opinion that this is a case where the present appellate Court while exercising the powers under Section 391 of the Code is required to pass order under Section 391 of the Code. The observations made by the Hon'ble Apex Court in the case of Brigadier Sukhjeet Singh (Retired) (Supra), as held in paragraphs 24 to 26, which are reproduced hereinbelow, would come in play.
"24. Power to take additional evidence under Section 391 is, thus, with an object to appropriately decide the appeal by the Appellate Court to secure ends of justice. The scope and ambit of Section 391 Cr.P.C. has come up for consideration before this Court in Rajeswar Prasad Misra v. State of W.B. Hidayatullah, J., speaking for the Bench held that a wide discretion is conferred on the Appellate Courts and the additional evidence may be necessary for a variety of reasons. He held that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. Following was laid down in Paragraph Nos. 8 and 9: (AIR p. 1892) "8. .... Since a wide discretion is conferred on appellate courts, the limits of that courts' jurisdiction must obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides. There is, no doubt, some analogy between the power to order a retrial and the power to take additional evidence. The former is an extreme step appropriately taken if additional evidence will not suffice. Both actions subsume failure of justice as a condition precedent. There the resemblance ends and it is hardly proper to construe one section with the aid of observations made by this Court in the interpretation of the other section.
9. Additional evidence may be necessary for a variety of reasons which it is hardly proper to construe one section with the aid of observations made 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 Page 11 of 14 Downloaded on : Fri Oct 01 03:24:49 IST 2021 R/CR.A/249/2019 IA JUDGMENT DATED: 29/09/2021 would be impossible to pronounce judgment but because there would be failure of justice 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. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise."
25. This Court again in Rambhau v. State of Maharashtra had noted the power under Section 391 CrPC of the appellate court. Following was stated in paras 1 and 2: (SCC p. 761) "1. 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. A plain look at the statutory provisions (Section 391) would reveal the same...
2. A word of caution however, ought to be introduced for guidance, to wit: that 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. This Court in Rajeswar Prasad Misra v. State of W.B. in no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid enough to record however, that 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."
26. From the law laid down by this Court as noted above, it is clear that there are no fetters on the power under Section 391 Cr.P.C. of the appellate court. All powers are conferred on the Court to secure ends of justice. The ultimate object of judicial administration is to secure ends of justice. Court exists for rendering justice to the people."
Page 12 of 14 Downloaded on : Fri Oct 01 03:24:49 IST 2021R/CR.A/249/2019 IA JUDGMENT DATED: 29/09/2021 [8.0] In the peculiar facts of the present case as also considering the decision of the Hon'ble Apex Court in the case of Brigadier Sukhjeet Singh (Retired) (Supra), we hold that the additional evidence is necessary to decide the criminal appeal at final hearing and in absence of such evidence it would be a failure of justice. In our opinion if further evidence is permitted to be produced on record of the case, there would no prejudice to the prosecution.
[9.0] Hence, we allow the present application with following directions.
1. Applicant is hereby directed to submit an application showing the list of witnesses who have been referred to in the present application for the purposes of oral evidence as well as with regard to electronic evidence in connection with mobile phone and SIM card of the applicant which existed in the name of the applicant and allegedly used at and around at the time of crime. Such application shall be filed by the applicant within a period of two weeks from today.
2. Learned Sessions Judge shall record the evidence in accordance with law and shall complete the same as early as possible within a period of six months. The learned Sessions Judge shall submit the additional evidence recorded in pursuance to this order at the earliest.
It is hereby made clear that the facts have been considered by this Court for the purpose of deciding the present application Page 13 of 14 Downloaded on : Fri Oct 01 03:24:49 IST 2021 R/CR.A/249/2019 IA JUDGMENT DATED: 29/09/2021 and therefore, the learned trial Court shall record the evidence strictly in accordance with law. It is also hereby made clear that these findings are tentative in nature and the criminal appeal shall be dealt with only after examining the entire Record & Proceedings of the case. Rule is made absolute to the aforesaid extent.
Sd/-
(A.J. DESAI, J.) Sd/-
(NIRZAR S. DESAI, J.) Ajay Page 14 of 14 Downloaded on : Fri Oct 01 03:24:49 IST 2021