Gujarat High Court
Ravindrabhai @ John Lakhubhai Vaghela vs State Of Gujarat on 6 October, 2017
Author: A.J. Shastri
Bench: Abhilasha Kumari, A.J. Shastri
R/CR.MA/5500/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ADDITIONAL EVIDENCE) NO. 5500
of 2014
In CRIMINAL APPEAL NO. 66 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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RAVINDRABHAI @ JOHN LAKHUBHAI VAGHELA....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR AD SHAH, ADVOCATE for the Applicant(s) No. 1
MR HARSHIT S TOLIA, ADVOCATE for the Applicant(s) No. 1
MR PARTH S TOLIA, ADVOCATE for the Applicant(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR for the Respondent(s) No. 1
MR PRAVIN GONDALIYA, ADVOCATE for Original Complainant
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
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R/CR.MA/5500/2014 JUDGMENT
Date : 06/10/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.J. SHASTRI)
1. The present application is filed by the applicant
- original accused for the purpose of seeking permission to produce the documents as referred to in Para.10 as well as amended Para.10 of the application, pending admission hearing and final disposal of the Criminal Appeal.
2. This application appears to have been submitted in the month of April,2014 which has previously been ordered to be heard along with main Criminal Appeal, by an order dated 11.6.2014. However, since hearing on this application is insisted upon by learned advocates, same was taken up for hearing.
3. Briefly stated, the case of the applicant is that feeling aggrieved by and dissatisfied with the judgment and order of conviction and sentence dated 20.11.2013 passed by the learned Additional Sessions Judge, Jetpur in Sessions Case No.22 of 2012 (Old Sessions Case No.73 of 2010), the applicant - original Page 2 of 18 HC-NIC Page 2 of 18 Created On Fri Oct 06 23:44:36 IST 2017 R/CR.MA/5500/2014 JUDGMENT accused has filed the Criminal Appeal which came to be admitted by this Court. As a part of one of the contentions raised by the applicant before the trial court is the ground of alibi by asserting that the applicant was not present at the scene of offence at the relevant point of time and has been falsely implicated in connection with the crime with an ulterior motive. To justify this plea of alibi, it has been averred by the applicant that on 11.6.2010 at 9.10 p.m., the applicant had gone from Navagadh (Jetpur) to Surat in a Luxury Bus bearing registration No.9494 (sleeping coach) of Vishal Travels,Jetpur on a seat No.20 and had reached Surat on 12.6.2010 at 7.00 a.m. in the morning and had straightway gone to the house of his sister.
3.1 It has further been contended that on 14.6.2010, he had checked his balance in ATM machine of State Bank of India, Kim Branch, District - Surat and thereby, contended that apparently, he has been falsely implicated in the alleged crime. To meet with this submission, the applicant had produced a copy of the ticket as well as a copy of the slip of ATM Page 3 of 18 HC-NIC Page 3 of 18 Created On Fri Oct 06 23:44:36 IST 2017 R/CR.MA/5500/2014 JUDGMENT machine of State Bank of India, Kim Branch, District - Surat and also produced the details of the bank account. It has also been contended that evidence of Shri Shellar, Investigating Officer indicates that he had made the investigation in this respect and collected travelling ticket and the chart of tourist from concerned transporter and for that process, he had produced certain documents at Exh.288 and Exh.289, the copies of which are also attached with this application.
3.2 It has further been contended in the application that the applicant had gone from Jetpur to Surat on 11.6.2010 at 9.00 p.m. in the Luxury Bus of Vishal Travells to drop his nephew, Tarang, at Surat and reached there at 7.00 a.m. on the next day and upto 16.6.2010 he remained at Surat and it is only after receiving telephonic message from his father, the applicant had returned back to Jetpur. This circumstance clearly indicates, as stated by the applicant, that with an ulterior motive and malafide intention, he has been falsely involved by the complainant and his companion. The defence of the Page 4 of 18 HC-NIC Page 4 of 18 Created On Fri Oct 06 23:44:36 IST 2017 R/CR.MA/5500/2014 JUDGMENT applicant has not been properly appreciated and taken into consideration by the Trial Court nor any concrete material is produced by the prosecution regarding this defence. Even the order of the Trial Court is a non speaking order, so far as it pertains to present applicant.
3.3 In a further statement recorded under Section 313 of the Cr.P.C., the applicant had explained specifically that he was not present at the scene of offence nor even in the Jetpur town on the day of incident. Despite this, he has been wrongly proceeded with in trail. Since the documents pertaining to this go to the root of the case and establish innocence of the applicant and the prosecution has not produced all these materials at the time of trial, a request is made by the applicant by way of this application to permit him to produce the documents, as stated above. 3.4 Earlier, it appears that the application has been presented in the month of April,2014. However, on a subsequent occasion, it appears that the application for seeking amendment in the present application was Page 5 of 18 HC-NIC Page 5 of 18 Created On Fri Oct 06 23:44:36 IST 2017 R/CR.MA/5500/2014 JUDGMENT submitted which was numbered as Criminal Misc. Application No.11581 of 2017 and by way of an order dated 5.5.2017, the said application appears to have been granted. Pursuant to which, Para.10 of the present application has been amended on 7.6.2017 and it is in this premise the present application is before us for consideration.
4. Mr.A.D.Shah, learned advocate for the applicant has contended that additional evidence which is sought to be produced is touching to the root of the controversy and is clearly establishing that the applicant - original accused has been wrongly implicated in prosecution. Learned advocate has submitted that these additional documents which are sought to be produced are reflecting clearly that at the relevant point of time when the offence is said to have been committed, the applicant was not in Jetpur town. He was at a far away place at Surat and these documents which are sought to be relied upon and requested to be produced are clearly establishing the innocence of the applicant accused and, therefore, looking to the importance of the documents which are Page 6 of 18 HC-NIC Page 6 of 18 Created On Fri Oct 06 23:44:36 IST 2017 R/CR.MA/5500/2014 JUDGMENT establishing the plea of alibi to a substantial extent, the relief prayed for in the application may kindly be granted.
4.1 Mr.A.D.Shah, learned advocate has pointed out that the travelling ticket and the use of ATM machine of State Bank of India, Kim Branch, is establishing the factum of innocence of the applicant accused and prove that applicant was not at scene of offence and these documents of vital importance have not been produced by the prosecution, though it was the duty on the part of the prosecution to collect and produce the same. Learned advocate has pointed out that even during the course of recording of further statement under Section 313 of the Cr.P.C., this plea of alibi was raised by the applicant accused and so much so that one Ashokbhai Haribhai Vaghera had also submitted an affidavit dated 21.6.2010 to indicate that either on the night or of the morning of 13.6.2010, the applicant was not present at Jetpur which is a place of incident in question and, therefore, this is a fit case in which, in the interest of justice the relief sought for in the application under Section 391 of the Page 7 of 18 HC-NIC Page 7 of 18 Created On Fri Oct 06 23:44:36 IST 2017 R/CR.MA/5500/2014 JUDGMENT Cr.P.C. Deserve to be granted. The very object of Section 391 of the Cr.P.C. permits the applicant to submit this application which ordinarily to be granted.
4.2 Mr.A.D.Shah, learned advocate has relied upon the following decisions to meet with his request, which will be dealt with at an appropriate stage in this judgment :
(1) Ajay Kumar Garg v. Gaurav, reported in 2009 (O) GLHELSC43964.
(2) Rajeswar Prasad Misra v. The State of W.B. & Another, reported in AIR 1965 SC 1887(1).
(3) Rambhau & Another v. State of Maharashtra, reported in AIR 2001 SC 2120.
(4) Rajvinder Singh v. State of Haryana, reported in (2016) 14 SCC 671.
(5) State (NCT of Delhi) v. Shiv Kumar Yadav & Anr., reported in (2016) 2 SCC 402.
4.5 After referring to these decisions, Mr.A.D.Shah, Page 8 of 18 HC-NIC Page 8 of 18 Created On Fri Oct 06 23:44:36 IST 2017 R/CR.MA/5500/2014 JUDGMENT learned advocate has contended specifically that interest of justice demands that present application deserves to be granted.
5. To oppose the stand taken by the learned advocate for the applicant, Mr.Mitesh Amin, learned Public Prosecutor, has vehemently contended that this plea of alibi was very much available with the applicant at the relevant point of time during the course of trial which could have been availed of. While referring to the statutory provision contained under Section 391 of the Cr.P.C., Mr.Mitesh Amin has contended that before resorting to this statutory provision as a part of condition precedent, one has to first make out a necessity of adducing evidence and necessity is the forefront issue. Learned Public Prosecutor has pointed out that from the beginning right from the day of seeking anticipatory bail, the applicant was conscious about the fact what was to be to be brought on record to justify his absence from the scene of offence. Still, this plea of alibi appears to have not been conveniently setforth wholeheartedly during the course of trial. Learned Public Prosecutor has pointed Page 9 of 18 HC-NIC Page 9 of 18 Created On Fri Oct 06 23:44:36 IST 2017 R/CR.MA/5500/2014 JUDGMENT out that two documentary evidences have been produced by way of Exh.288 and Exh.289 which are reflecting on paperbook compilation at Page Nos.1345 and 1346, respectively which is the register of Vishal Travels and this piece of evidence is primary evidence itself and same has been dealt with and findings have also been arrived at which are very much reflecting from the order and, therefore, to permit at this stage to raise a plea of alibi, would frustrate the very full fledged adjudication of the trial which is otherwise just and proper.
5.1 Mr.Mitesh Amin, learned Public Prosecutor has pointed out that the incident in question has occurred on 13.6.2010 and, therefore, halfhearted plea was taken up during the course of trial so as to see that if ultimately he is saved from alibi, he can test this plea by referring to Section 391 of the Cr.P.C. by way of present application and, therefore, requested now to allow the applicant to produce few documents mentioned in the application along with the affidavit of person, the applicant intends to put this material as a disguise to retrial of the case and, therefore, Page 10 of 18 HC-NIC Page 10 of 18 Created On Fri Oct 06 23:44:36 IST 2017 R/CR.MA/5500/2014 JUDGMENT such a design on the part of the applicant may not be allowed to be encouraged.
5.2 Mr.Mitesh Amin, learned Public Prosecutor, has vehemently contended that even when the further statement was recorded, the applicant has not explained the circumstance in detail nor has produced any material, though from day one the applicant was mindful of this fact nor has examined any person from Vishal Travels nor has even chosen to examine Ashokbhai, who has now come forward to support by way of an affidavit. Learned Public Prosecutor has pointed out that by virtue of the statutory provisions contained under Sections 11 and Section 106 of the Evidence Act, a duty is cast upon the accused to establish his defence and such burden ought to have been discharged by the applicant - accused by setting up his defence. Learned Public Prosecutor has pointed out that Section 391 of the Cr.P.C., no doubt, is permitting to submit the additional evidence, but party who is inclined to avail such benefit, has to make out a case and he cannot selectively produce some part of the documents, discharge partially the burden Page 11 of 18 HC-NIC Page 11 of 18 Created On Fri Oct 06 23:44:36 IST 2017 R/CR.MA/5500/2014 JUDGMENT and then, wait for a convenient time so as to resort to remand and retrial of the case and, therefore, such a design may not be allowed to be operated and, therefore, application deserves to be dismissed.
6. Mr.A.D.Shah, learned advocate for the applicant, in rejoinder, has submitted that this is not a case where important evidence was not projected deliberately by way of defence from the beginning. On the contrary, at the relevant point of time, the evidence was not in existence and, therefore, to unearth the truth, such evidence deserves to be allowed by way of additional evidence. Learned advocate for the applicant has also pointed out that during the course of investigation, it was specifically pointed out that though it was incumbent on the part of the Investigating Officer to examine this angle, no steps have been taken and, therefore, even if by mistake the defence has not produced such material, the Court has to allow the applicant to produce this additional evidence so as to arrive at a just decision. No other submissions have been made.
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7. Mr.Pravin S. Gondaliya, learned advocate appearing for the original complainant, has adopted almost similar line on which learned Public Prosecutor has opposed the application and has submitted that no such plea at this stage be allowed. Learned advocate has further contended that looking to the wordings of the statutory provisions of Section 391 of the Cr.P.C., the prayer at this stage may not possible to be acceded to as yet the appeal proceedings have not commenced and if ultimately during the course of adjudication of appeal, it is found expedient then only the application can be considered and, therefore, Mr.Gondaliya has submitted that this is not a stage where such request may be permitted. Learned advocate has, therefore, submitted that when this application is ordered to be heard along with the main appeal by way of an order dated 11.6.2014, the application may not be given any preference at this stage and thereby, has requested the Court to dismiss the application, being devoid of merits.
8. Having heard the learned advocates appearing for the respective parties and having considered the rival Page 13 of 18 HC-NIC Page 13 of 18 Created On Fri Oct 06 23:44:36 IST 2017 R/CR.MA/5500/2014 JUDGMENT submissions and the material on record, we are of the considered opinion that two main circumstances have not been pointed out by either side to assist the Court while dealing with an application under Section 391 of the Cr.P.C. at stage before the commencement of the main Criminal Appeal itself.
9. It has been noticed by us that in this very application, the coordinate Bench of this Court has, on 11.6.2014, passed the following order :
"Rule. To be heard with main appeal."
10. Despite that fact, a request is pressed into service when appeal proceedings have not been opened up by the Court. In addition thereto, during the course of dealing with the submission, we have come across a decision of the Apex Court in the case of Union of India v. Ibrahim Uddin & Anr., reported in (2012) 8 SCC 148, in which, in an almost similar situation, the Court has observed that even if the application for additional evidence is filed during the pendency of appeal, the same has to be dealt with and heard at time of final hearing of an appeal and Page 14 of 18 HC-NIC Page 14 of 18 Created On Fri Oct 06 23:44:36 IST 2017 R/CR.MA/5500/2014 JUDGMENT before taking up of an appeal, such kind of applications are normally not to be entertained. Following observations contained in Para.52, 53 and 85.7 of the said decision are not possible to be ignored, hence reproduced hereinafter :
"52. Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete nonapplication of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored.
53. In the instant case, the application under Order XLI Rule 27 CPC was filed on Page 15 of 18 HC-NIC Page 15 of 18 Created On Fri Oct 06 23:44:36 IST 2017 R/CR.MA/5500/2014 JUDGMENT 6.4.1998 and it was allowed on 28.4.1999 though the first appeal was heard and disposed of on 15.10.1999. In view of law referred to hereinabove, the order dated 28.4.1999 is just to be ignored.
85.7 The first appellate court committed a grave error in deciding the application under Order XLI Rule 27 CPC much prior to the hearing of the appeal. Thus, the order allowing the said application is liable to be ignored as the same had been passed in gross violation of the statutory requirement."
11. Though the aforesaid decision is related to civil proceedings, but as held by the Apex Court the analogy on the issue of leading additional evidence is also similar to that of Order 41 Rule 27 of the CPC and, therefore, when such is the situation prevailing on record, we deem it appropriate not to accept the application.
12. Yet another decision delivered by the Apex Court in the case of Rambhau & Anr. v. State of Maharashtra, reported in AIR 2001 SC 2120, is taken into consideration while arriving at an opinion not to Page 16 of 18 HC-NIC Page 16 of 18 Created On Fri Oct 06 23:44:36 IST 2017 R/CR.MA/5500/2014 JUDGMENT accept the application at this stage of the proceedings. Relevant observations of the said decision are in Para.4 which is quoted, thus;
"4. Incidentally, Section 391 forms an exception to the general rule that an Appeal must be decided on the evidence which was before the Trial Court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up the lacuna but to sub serve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41, Rule 27 of the C.P.Code. "
13. In the aforesaid premise, therefore, we are of the considered opinion that before opening of an appeal for final hearing, at this stage to opine anything on the issue of additional evidence would be a premature exercise at our end and since at this stage, we are of the considered view that though the application is pressed into service in view of Page 17 of 18 HC-NIC Page 17 of 18 Created On Fri Oct 06 23:44:36 IST 2017 R/CR.MA/5500/2014 JUDGMENT aforesaid proposition of law, we are not in a position to accept the same. We refrain ourselves from dealing with the contentions raised by the respective sides in detail and, therefore, we deem it appropriate not to examine the merit of the submissions, leaving it open to the learned advocate for the applicant to submit an appropriate application at an appropriate stage of the main proceedings of the appeal. Hence, we are not inclined to entertain the application at this stage of the proceedings. Accordingly, the same is hereby dismissed. Rule is discharged.
(SMT. ABHILASHA KUMARI, J.) (A.J. SHASTRI, J.) vipul Page 18 of 18 HC-NIC Page 18 of 18 Created On Fri Oct 06 23:44:36 IST 2017