Himachal Pradesh High Court
Reserved On: 9.12.2025 vs State Of Himachal Pradesh. ... on 20 December, 2025
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2025:HHC:44770
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
Cr.M.P. No. 5315 of 2025 in Cr.
Appeal No. 225 of 2021
Reserved on: 9.12.2025
Date of decision: 20.12.2025
of
Nadeem S/o Jahir. ...Non-applicant/Appellant.
Versus
State of Himachal Pradesh. ...Appellant/Respondent.
Coram
rt
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Hon'ble Mr. Justice Bipin C. Negi, Judge.
Whether approved for reporting?1 Yes.
For the Non-applicant: Mr.George and Mr.Vinod Kumar Soni,
Advocates.
For the Respondent: Mr.J.S. Guleria, Deputy Advocate General.
Vivek Singh Thakur, Judge
This application has been preferred by respondent-State under Section 348, 432 read with Section 528 of Bharatiya Nagrik Suraksha Sanhita, 2023 (for short 'BNSS') (old Sections 311, 391 read with Section 482 of Cr.P.C.) for summoning and re-examining of witness PW-20 victim/prosecutrix and also to summon and examine the Record Keeper/Office Superintendent of Him Academy Public School, 1 Whether the reporters of the local papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 20/12/2025 20:30:38 :::CIS 2 2025:HHC:44770 Cr.M.P. No. 5315 of 2025 Vikasnagar, Hamirpur alongwith record of Roll Number 17102092 of .
Matriculation Certificate of PW-20 issued in the year 2021.
2. The main appeal is arising out of judgment and order dated 15.6.2021/16.6.2021 passed in Sessions Trial No. 29/2020, titled as State of H.P. Vs. Nadeem, in case FIR No. 17 of 2020, dated 28.5.2020, of registered in Women Police Station, Hamirpur, District Hamirpur, H.P., whereby appellant has been convicted for commission of offence rt punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and under Section 506 of the Indian Penal Code, and has been sentenced to undergo rigorous imprisonment for a period of 10 years and to pay fine of ₹10,000/- and in default to undergo simple imprisonment for a period of 6 months for commission of offence under Section 6 of POCSO Act and to undergo simple imprisonment for a period of 1 year and to pay fine of ₹5,000/- and in case of default, to undergo simple imprisonment for a period of 3 months for commission of offence under Section 506 IPC.
3. We have heard learned Deputy Advocate General for the applicant/State as well as learned counsel for non-applicant/appellant and have also gone through the material available on record.
4. To prove age of victim, prosecution has examined PW-3 Ashok Kumar, Secretary Gram Panchyat to prove copy of Parivar ::: Downloaded on - 20/12/2025 20:30:38 :::CIS 3 2025:HHC:44770 Cr.M.P. No. 5315 of 2025 Register Ex. PW-3/B with endorsement of date of birth of prosecutrix as .
10.5.2005, and PW-9 Pawan Kumar, to prove birth certificate of victim Ex.
PW-9/A, issued under Section 12/17 of Registration of Births Act, 1969 and Rule 8/15 of H.P. Registration of Birth and Death Rules, 2003, indicating the date of birth of victim as 10.5.2005.
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5. In the aforesaid backdrop this application has been filed with submission that when case was being prepared for final arguments by rt State counsel, it transpired that prosecution had not proved the date of birth of victim from School record because when occurrence took place, the victim was studying in 10th Class in HIM Academy Public School, Vikasnagar, Hamirpur and she had not passed her Matriculation and thus Matriculation Certificate of the victim was not in existence, and on inquiry from Women Police Station Hamirpur it transpired that victim passed her Matriculation examination in the year 2021 and Matriculation Certificate of the victim had been issued thereafter on 3.8.2021. Further that copy of Matriculation Certificate received now indicates that date of birth of victim has been recorded in the said certificate as 10.5.2005.
6. In has been submitted that State intended to prove age of victim by producing Matriculation Certificate and School record by re-
examining PW-20 victim and for examining Record Keeper/Office ::: Downloaded on - 20/12/2025 20:30:38 :::CIS 4 2025:HHC:44770 Cr.M.P. No. 5315 of 2025 Superintendent of the concerned School, production of Matriculation .
Certificate of victim alongwith School record related thereto.
7. It has been submitted on behalf of State that Matriculation Certificate and School record related thereto is very relevant to prove that prosecutix was Class 10th Student in the academic session 2020-2021 of and appeared in the Matriculation examination after the incident and also to substantiate that her date of birth is 10.5.2006 as proved under rt Juvenile Justice (Care and Protection of Children) Act, 2015 (for short 'J.J. Act').
8. It has been further submitted on behalf of State that Matriculation Certificate could not be produced at it was not in existence at the time of incident as well as investigation and thus the non-
production of Matriculation Certificate was neither intentional nor deliberate, but beyond the control of prosecution. Whereas, prosecution has proved the date of birth of victim as 10.5.2005 by examining PW-3 Ashok Kumar and PW-9 Pawan Kumar by producing Parivar Register entries of family of victim Ex. PW-3/B and birth certificate of the victim Ex.
PW-9/A, in which date of birth of victim has been reflected as 10.5.2005, which is the same date of birth as recorded in Matriculation Certificate proposed to be proved.
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9. It has been submitted that no new fact is proposed to be .
brought on record, but the evidence, necessary to substantiate the already claimed and proved fact on record, has been proposed to be produced on record in evidence by examining the victim and Record Keeper/Officer Superintendent of Public School concerned.
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10. Lastly, it has been submitted that for doing substantial justice and to arrive at just decision, evidence, proposed to be proved on rt record, is necessary and no prejudice is going to be caused to the non-
applicant/appellant, as he will have opportunity to cross-examine the witness on the issue on which evidence is being proposed to be lead as additional evidence and also for the fact that no new case is being set up by the prosecution by leading any evidence on the fact which has not been disclosed, set up or relied upon by the State during the trial.
11. It has also been submitted in the application that in similar circumstances an application Cr.MP No. 3682 of 2024 in Cr. Appeal No. 233 of 2022, was allowed and prosecution was permitted to lead evidence at appellate stage under Sections 311 and 391 of the Code of Criminal Procedure for just decision and to meet the ends of justice.
12. For opposing the prayer made in the application, detailed reply has been filed on behalf of non-applicant/appellant, taking numerous objections, including that the application is not maintainable ::: Downloaded on - 20/12/2025 20:30:38 :::CIS 6 2025:HHC:44770 Cr.M.P. No. 5315 of 2025 under Sections 230, 374 and 528 of the BNSS (corresponding Sections .
207, 335 and 482 of the Code of Criminal Procedure).
13. With respect to above objection, it has been clarified by learned Deputy Advocate General that at the first instance, the application was reflected as being filed under Sections 230, 374 read with Section of 528 of BNSS and the copy of application reflecting the same was supplied to non-applicant/appellant, however, thereafter at the time of rt filing of application this mistake was noticed and necessary correction in this regard by correcting and mentioning relevant Section 348 and 432 of BNSS was carried out in the application, but inadvertently, the said correction could not be informed to learned counsel for non-applicant/appellant and thus in view of correction carried out, this objection deserves to be ignored.
14. Perusal of application clearly depicts that necessary correction has already been carried out by the State in the Index as well as cause title of the application. Otherwise also, in case there is provision for filing and considering an application for re-calling/summoning and leading additional evidence, the mention of provision would not be fatal for the applicant. In any case, in present case necessary correction has already been carried out, therefore, this objection is not sustainable.
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15. Other objections raised on behalf of non-applicant/appellant .
are that the application has been filed after a lapse of more than 5 years 6 months without any statutory explanation for such a long delay for re-
examining and examining the witnesses at the stage when arguments on behalf of appellant have already been completed in May, 2025, and of written submissions have also been filed on 7.5.2025, and State counsel has also advanced arguments in part on 18.6.2025, but matter was rt adjourned for different reasons and, therefore, arguments on behalf of State could not be completed till date; that the application has been filed with a malafide intention to delay the proceedings, whereas non-
applicant/appellant has already undergone incarceration for a period of 5 years and about 6 months; that at the time of examining victim as PW-20 on 7.11.2020, she was studying in 10th Class in the School and School record of the victim with respect to date of birth was easily available, but was not produced by the prosecution; that after availing second option provided under Section 94 (2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, prosecution cannot revert to first option by way of additional evidence; that in view of specific and meaningful provision of Section 94(2) of the J.J. Act, victim/prosecution had opted to prove date of birth by one of the three available options, but not by all three options, which become available with the passage of time and once ::: Downloaded on - 20/12/2025 20:30:38 :::CIS 8 2025:HHC:44770 Cr.M.P. No. 5315 of 2025 prosecution had opted for second option without resorting to first option, .
now at this stage prosecution cannot be permitted to lead additional evidence at this belated stage, as it would cause serious prejudice to the defence of non-applicant/appellant; that the application has been filed with ulterior motive to fill gaps or for the re-trial to somehow or the other to of fill the lacunas and intentional omissions due to lack of diligence on the part of prosecution during the original trial; that there is lack of due rt diligence on the part of prosecution and no reason has been assigned which prevented the State from filing this application for the last more than 5 and half years; that the proposed evidence cannot be permitted to be produced on record by way of additional evidence as it is an attempt to rectify previous omissions of the prosecution.
16. Lastly, it has been contended that power under Section 391 of Cr.P.C. now Section 432 of BNSS, is not to be exercised in a routine or casual manner, as a disguise for a re-trial or to fill up gaps lacunas and serious omissions caused by the negligence or laches or undue delay on the part of prosecution during original trial.
17. Learned counsel for the non-applicant/appellant, to oppose the prayer made in the application, has placed reliance upon judgments of the Apex Court in Swapan Kumar Chatterjee Vs. Central Bureau of Investigation, (2019) 14 SCC 328, wherein it has been observed by the ::: Downloaded on - 20/12/2025 20:30:38 :::CIS 9 2025:HHC:44770 Cr.M.P. No. 5315 of 2025 Apex Court that where prosecution evidence has been closed long back .
and reasons for non-examination of witness earlier are not satisfactory re-
summoning of witness at belated stage would cause grave prejudice to accused and should not be allowed.
18. Learned counsel for non-applicant/appellant has referred of judgment of this High Court in Jagdeep Kumar Vs. Himachal Pradesh State Cooperative Bank Limited, 2019 (3) SLC 1354, wherein it has rt been observed that Section 391 of Cr.P.C. (now Section 432 of BNSS) is not intended to remedy the negligence or laches of the party.
19. It has also been contended by learned counsel for the non-
applicant/appellant that facts and circumstances for allowing the application for additional evidence in Cr. Appeal No. 233 of 2022 were totally different in comparison to facts and circumstances of the present case and thus order passed in the same is not applicable to present case.
20. Learned counsel for the non-applicant/appellant has also placed reliance on judgment dated 6.12.2024 passed by Division Bench of this High Court in Cr. Appeal No. 246 of 2021, titled as 'V' Vs. State of H.P., wherein after placing reliance on pronouncements of the Apex Court in Jarnail Singh Vs. State of Haryana (2013) 7 SCC 263;
Sanjeev Kumar Gupta Vs. State of U.P. and others (2019) 12 SCC 370; Ashwani Kumar Saxena Vs State of M.P, (2012) 9 SCC 750 and ::: Downloaded on - 20/12/2025 20:30:38 :::CIS 10 2025:HHC:44770 Cr.M.P. No. 5315 of 2025 other pronouncements of the Apex Court alongwith provisions of Rule 12 .
of the Juvenile Justice (Care and Protection of Children) Rules framed under J.J. Act, 2000 which are equivalent to Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, wherein it was held that only in absence of Matriculation or equivalent certificate or date of of birth certificate from the school first attended, the Court need to obtain the birth certificate given by a corporation or a municipal authority or a panchyat.
rt It has been submitted that in present case despite having School record, prosecution has failed to produce the same to prove the date of birth of victim during trial and, therefore, evidence on record relied upon by the prosecution to prove date of birth of the victim, is not admissible and has to be ignored and, therefore, now at this stage, application filed by the State is liable to be dismissed.
21. Referring the provisions of Sections 348 and 432 of the BNSS, learned Deputy Advocate General has justified filing of the application at this stage with submission that even in absence of this application, Court has power to call for additional evidence which is considered to be necessary for ends of justice, and to justify the necessity of additional evidence, he has re-iterated the averments made in the application and submissions made in support thereof referred supra.
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22. For determining the issue involved in present application, it .
would be relevant to refer provisions of Section 348 and 432 of BNSS (Section 311 and 391 of Cr.P.C.), which read as under:-
"348. Power to summon material witness, or examine person present.-Any Court may, at any stage of any inquiry, trial or other proceeding under this Sanhita, summon any person as a witness, or of examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just rt decision of the case.
[Old Corresponding Section : Sc. 311 of the Code of Criminal Procedure, 1973.]
432. 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 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 advocate 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 XXIV, as if it were an inquiry."
23. Perusal of order dated 20.9.2024 passed in Cr.MP No. 3682 of 2024, depicts that the issue involved in the said application was almost ::: Downloaded on - 20/12/2025 20:30:38 :::CIS 12 2025:HHC:44770 Cr.M.P. No. 5315 of 2025 similar to the issue involved in present matter. The following paras of the .
said order are also relevant to be referred in present matter:-
"7. It is settled law that Section 311 Cr. P.C. confers a very wide power on the Courts to summon any person as a witness at any stage of any inquiry, trial or other proceeding and examine or recall and re- examine any such person, if his evidence appears to be essential to the just decision of the case.
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8. The scope of Section 311 of the CrPC has been considered by the Hon'ble Supreme Court inter alia in Natasha Singh Vs. Central Bureau of Investigation, (2013) 5 SCC 741, wherein the Court, after rt reference to earlier authorities, stated the principle in the following terms:
"8. Section 311 Cr. P.C. empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings"
under the Cr.P.C., or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the Cr.P.C. has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. xxxxxx ::: Downloaded on - 20/12/2025 20:30:38 :::CIS 13 2025:HHC:44770 Cr.M.P. No. 5315 of 2025
15........... The power conferred under Section 311 Cr. P.C. must therefore, be invoked by the Court only in order to .
meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as 'any Court', 'at any stage", or 'or any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that the provisions of this section have been expressed in the widest of possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the rt summoning/recalling of the said witness is in fact, essential to the just decision of the case."
9. In Varsha Garg Vs. State of Madhya Pradesh, AIR 2022 SC 3707, it has been held as under:-
"25 Further, the Court while relying upon the earlier decisions in J.K. International v. State (Govt. of NCT of Delhi)14, Zahira Habibulla H. Sheikh v. State of Gujarat15, Manu Sharma v. State (NCT of Delhi)16, Mohanlal Shamji Soni v. Union of India17, Rajendra Prasad v. Narcotic Cell18, noted:
"31 ...a criminal court cannot remain a silent spectator. It has got a participatory role to play and having been invested with enormous powers under Section 311 CrPC, as well as Section 165 of the Evidence Act, a trial court in a situation like the present one where it was brought to the notice of the court that a flagrant contradiction in the evidence of PW 18 who was a statutory authority and in whose presence the test identification parade was held, who is also a Judicial Magistrate, ought to have risen to the occasion in public interest and remedied the situation by invoking Section 311 CrPC, by recalling the said ::: Downloaded on - 20/12/2025 20:30:38 :::CIS 14 2025:HHC:44770 Cr.M.P. No. 5315 of 2025 witness with further direction to (2001) 3 SCC 462 (2004) 4 SCC 158 (2010) 6 SCC 1 (1991) Supp (1) SCC 271 .
(1999) 6 SCC 110 the Public Prosecutor for putting across the appropriate question or court question to the said witness and thereby set right the glaring error accordingly. It is unfortunate to state that the trial court miserably failed to come alive to the realities as to the nature of evidence that was being recorded and of miserably failed in its duty to note the serious flaw and error in the recording of evidence of PW 18."
10. In Swapan Kumar Chatterjee Vs. Central Bureau of Investigation, (2019) 14 SCC 328, which has been relied upon by the rt learned counsel for the non-applicant/appellant, it has been held as under:-
"11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this Section to even recall witnesses for reexamination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law."
11. Our own High Court in Sonu Vs. State of Himachal Pradesh, 2020 (1) Shim. LC 567 has held as under:-
"12. ..... The legal principles culled out on the basis of the law so discussed reads as follow:
i) Lacuna in the prosecution case must be understood as the inherent weakness or latent wedge in the matrix thereof.::: Downloaded on - 20/12/2025 20:30:38 :::CIS
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ii) the advantage of a lacuna in the prosecution case normally go in favour of the accused but an oversight .
during the course of trial cannot be treated as irreparable lacuna.
iii) the function of the criminal courts is administration of criminal justice and not to count errors committed by the parties during the course of trial. The object of Section 311 of the code is that there may not be of failure of justice on account of mistake of either party in bringing the valuable piece of evidence on record or leaving ambiguity in the statements of witnesses examined by either side.
rt
iv) The determinative factor is as to whether it is essential to re-examine a witness for the just decision of the case.
v) The only object underlying Section 311 of the code is to bring on record the evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society.
vi) The nature, scope and object of Section 311 of the Code dealing with the principles for exercise of discretionary power is that the power under Section 311 of the Code though is vast one and can be exercised at any stage of the trial. However, should be exercised only in those cases where the evidence to be tendered by the witness on re-call is germane to the issue involved. In case such evidence could not be adduced or brought on record due to an inadvertence, the power is not limited to re-call a witness for further cross-examination with reference to his previous statement but also to take additional evidence for any reasons at a just decision.
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vii) This discovery of truth is essential principles of any trial or inquiry to render a just decision after .
discovering all relevant facts.
viii) Of course power must be exercised judiciously and not capriciously or arbitrarily as any improper or capricious power may lead to undesirable results.
ix) The additional evidence must not be received as a disguise for retrial or to change the nature of the of case against either of the parties.
x) The opportunity to cross-examine the witness qua the additional evidence recorded on re-examination and to produce rebuttal evidence, if any, should be rt given to the other party.
xi) The very use of words such as "any Court", "at any stage",or "or any inquiry, trial or other proceedings", "any person" and"any such person"
clearly spells out that the provisions of Section 311 of the Code have to be exercised in the widest possible terms and do not limit the discretion of the Court in any way. Fair trial entails the interest of the accused, the victim and of the society, therefore, fair trial includes the grant of fair and proper opportunities to the parties. Where the offence is against society, it is the unfortunate victim, who is the actual sufferer,hence it is imperative for the prosecution to ensure that no stone is left unturned to bring guilt home to the accused.
xii) That the power under Section 311 of the Code must be exercised with caution and circumspection and only for strong and valid reason as recall of a witness already examined is not an opportunity as a matter of course and discretion given to the court in ::: Downloaded on - 20/12/2025 20:30:38 :::CIS
17 2025:HHC:44770 Cr.M.P. No. 5315 of 2025 this regard has to be exercised judicially to prevent failure of justice.
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xiii) that delay in filing the application for re-calling a witness is one of the important factor and the same should be explained in the application."
12. Thus the object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the of statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon rt a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and in this section, the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code".
24. In this regard pronouncement of the Apex Court in Rajeshwar Prasad Misra Vs. The State of West Bengal and Another, AIR 1965 SC 1887, are relevant, which are as under:-
"9. Additional evidence may be necessary for a variety of reasons which it is hardly necessary (even if it was possible) to list here. We do not propose to do what the Legislative 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 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 ::: Downloaded on - 20/12/2025 20:30:38 :::CIS 18 2025:HHC:44770 Cr.M.P. No. 5315 of 2025 mus, 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. Commentaries upon the Code are full of cases in which the powers under S. 428 were exercised. We were cited a fair number at the hearing. Some of the decisions suffer from the sin of of generalization and some others from that of arguing from analogy. The facts in the cited cases are so different that it would be futile to embark upon their examination. We might have attempted this, if we could see some useful purpose but we see none. We would be right in assuming rt the existence of a discriminatory power in the High Court and all that we consider necessary is to see whether the discretion was properly exercised."
25. Following paras of judgment of the Apex Court passed in Rambhau and others Vs. State of Maharashtra, (2001) 4 SCC 759 are also relevant:-
"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 the case of Rajeswar Prasad Misra v. State of W.B AIR 1965 SC 1987 in no uncertain terms observed that the order must not ordinarily be made if the prosecution has 52 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.::: Downloaded on - 20/12/2025 20:30:38 :::CIS
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3. Be it noted that no set of principles can be set forth for such an exercise of power under Section 391, since the same is dependent .
upon the fact-situation of the matter and having due regard to the concept of fair play and justice, well being of the society.
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 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 rt 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 Civil Procedure Code.
5. ..... ..... .....
6. Before going into the factual score further, it is convenient to note at this juncture that during the course of hearing of this appeal, the High Court thought it fit to conduct an additional examination of both the accused persons with a reasoning as below: "We have examined them to rectify the irregularity as cropped up and pointed out by the defence."
The word "irregularity" in common English parlance means and implies contrary to rule. This Court in the case of Martin Burn Ltd. v. The Corporation of Calcutta, AIR 1966 SC 529 while explaining the meaning of irregularity observed:
"A point was, however, made that Section 131 (2)(b) apply only to a cancellation on the ground of irregularity, that is a procedural defect such as, absence of notice, omission to give a hearing etc., There is, however, no reason to restrict the ordinary meaning of the word irregularity and confine it to procedural defects only. None has been advanced. Such a contention was rejected and we think rightly in Corpn. of Calcutta V. Chandoolan Bhai Chand Modi, AIR 1953 Cal ::: Downloaded on - 20/12/2025 20:30:38 :::CIS 20 2025:HHC:44770 Cr.M.P. No. 5315 of 2025
773. That word clearly covers any case where a thing has not been done in the manner laid down by the statute, .
irrespective of what that manner might be."
Black's Law Dictionary defines the word as "not according to rule and not regular" i.e. which stands contrary to rule. As noticed above, the purpose of introduction of Section 391 (earlier Section 428) in the statute-book has been for the purpose of making it available to the court nor to fill up any gap in the prosecution case but to oversee that of the concept of justice does not suffer. The High Court itself records "to rectify the irregularity", the issue therefore, is whether this rectification by an additional evidence is a mere irregularity or goes to the root of the issue and instead of sub-serving the ends of justice, the same runs rt counter to the concept of justice."
26. In Ashok Tshering Bhutia Vs. State of Sikkim, (2011) 4 SCC 402, the Apex Court has held as under:-
"28. Additional evidence at appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity.
29. The primary object of the provisions of Section 391 Cr.P.C. is the prevention of a guilty man's escape through some careless or ignorant action on part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary. [Vide Rajeswar Prasad Misra v. State of W.B., AIR 1965 SC 1887; Ratilal ::: Downloaded on - 20/12/2025 20:30:38 :::CIS 21 2025:HHC:44770 Cr.M.P. No. 5315 of 2025 Bhanji Mithani v. The State of Maharashtra, (1971) 1 SCC 523; Rambhau v. State of Maharashtra, (2001) 4 SCC 759; Anil Sharma v.
.
State of Jharkhand, (2004) 5 SCC 679; Zahira Habibulla H. Sheikh v.
State of Gujarat, (2004) 4 SCC 158; and Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1).
30. This Court in State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364, dealing with the issue held as under: (SCC pp. 370-71, para 5) of "...To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the rt 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. The community or the State is not a persona non grata whose cause may be treated with disdain. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest."
31. In Rambhau (supra), a larger Bench of this Court held as under:
(SCC p. 762, para 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 ::: Downloaded on - 20/12/2025 20:30:38 :::CIS 22 2025:HHC:44770 Cr.M.P. No. 5315 of 2025 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 subserve 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 Civil Procedure of Code." (emphasis added)
32. In view of the above, the law on the point can be summarised to the effect that additional evidence can be taken at the appellate stage in exceptional circumstances, to remove an irregularity, where the rt circumstances so warrant in public interest. Generally, such power is exercised to have formal proof of the documents etc. just to meet the ends of justice. However, the provisions of Section 391 Cr.P.C. cannot be pressed into service in order to fill up lacunae in the prosecution's case."
27. Observation made by the Apex Court in V.N. Patil Vs. K. Niranjan Kumar and others, (2021) 3 SCC 661, are also relevant to be referred which read as under:-
"7. Learned counsel for the respondents made various submissions in questioning the application filed under Section 173(5) read with Section 311 Cr.PC when the trial reached the stage of hearing and contended that the witnesses cited to be summoned for the purpose of examining them on behalf of the prosecution, are neither the witnesses examined by the investigating officer during the course of his investigation, nor cited as the prosecution witnesses in the final report........
xxx xxx xxx
14. The object underlying Section 311 Cr.P.C is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of ::: Downloaded on - 20/12/2025 20:30:38 :::CIS 23 2025:HHC:44770 Cr.M.P. No. 5315 of 2025 the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The significant .
expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that the discretionary power conferred under Section 311 Cr.P.C has to be exercised judiciously, as it is always said "wider the power, greater is the necessity of caution while exercise of judicious discretion."
xxx xxx xxx
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17. The aim of every Court is to discover the truth. Section 311 Cr.P.C is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 Cr.P.C rt has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice."
28. In present case by leading proposed evidence, no prejudice is going to be caused to the accused as it would not amount to have been received as a disguise for re-trial or to change the nature of the case against him, because from very beginning the case of the prosecution is that date of birth of the victim is 10.5.2005 and to substantiate the same, State has already proved on record documents Parivar Register Ex. PW-
3/A and date of birth certificate Ex. PW-9/A and as the Matriculation Certificate was not in existence at the time of investigation and, therefore, it was not possible for the prosecution to obtain the same and produce in evidence. Though Investigating Officer/prosecution could have obtained record related to date of birth from the School concerned, but for negligence of the Investigating Officer or ignorance about the provisions ::: Downloaded on - 20/12/2025 20:30:38 :::CIS 24 2025:HHC:44770 Cr.M.P. No. 5315 of 2025 of Section 94 of the J.J. Act, 2015, no such record was procured and .
produced in the Court, however, such negligence or ignorance on the part of Investigating Agency cannot be a ground to deny leading of additional evidence, which is not going to be establish or substantiate any new fact other than the case already propounded by the prosecution against non-
of applicant/appellant.
29. It is also apt to record that non-applicant/appellant shall rt have right to cross-examine the witness on the issue of date of birth and fact related to date of birth sought to be re-asserted by prosecution by placing on record additional evidence in conformity of requirement of law, especially in view of the pronouncements of the Supreme Court. It is not a case where prosecution had opportunity to produce the Matriculation Certificate, because it was not in existence. Application has been filed to produce on record additional evidence to rectify the irregularity for sub-
serving the ends of justice which does not run counter to the concept of justice. It is not a defect incurable in nature, but is a mere irregularity which, in our considered opinion, required to be cured in the ends of justice.
30. In present case though PW-20 victim has been examined earlier, but at that time her Matriculation Certificate was nonexistent and Investigating Officer committed irregularity by not collecting date of birth ::: Downloaded on - 20/12/2025 20:30:38 :::CIS 25 2025:HHC:44770 Cr.M.P. No. 5315 of 2025 record from the concerned School, resultantly Record Keeper/Office .
Superintendent/Incharge of the School record was not cited as a witness by the prosecution in charge sheet. However, Investigating Agency had collected other evidence with respect to date of birth of the victim from the concerned Panchyat, Registrar Births and Deaths, but in view of of interpretation by the Court of the provisions of J.J. Act, the evidence collected by the Investigating Officer with respect to date of birth of the rt victim may not be sufficient to substantiate the date of birth of the victim as the same may not be taken in consideration on technical ground, whereas for the ends of justice and to arrive at just decision of the case, it would be essential to ascertain age of the child victim by allowing the State to produce on record Matriculation Certificate/School record to prove the date of birth in consonance with the pronouncements of the Court with respect to provisions of Section 94 of J.J. Act, 2015.
31. Courts are not precluded from, rather have been empowered to summon any person as a witness, examine, re-call or re-
examine any person already examined and to permit leading of additional evidence to arrive at just decision of the case.
32. It is duty of the Court whenever it is possible without causing any prejudice to the opposite party to ensure production of necessary and ::: Downloaded on - 20/12/2025 20:30:38 :::CIS 26 2025:HHC:44770 Cr.M.P. No. 5315 of 2025 essential evidence to ascertain the truth to arrive at just decision for the .
ends of justice.
33. For the discussion herein before, we are of the opinion that judgments in Jagdeep Kumar's and Cr. Appeal No. 246 of 2021, is of no help to the non-applicant/appellant and rest of judgments relied upon on of behalf of non-applicant/appellant are not relevant for adjudication of the issue of leading additional evidence at appellate stage.
34. rt In the given facts and circumstances of the case we are of the considered opinion that it is essential and necessary to allow the additional evidence/re-call PW-20 and Incharge of record/Record Keeper/ Superintendent of the concerned school for re-examination/examination for limited purpose of producing Matriculation Certificate/relevant record in evidence and proving date of birth of the victim in accordance with law.
35. Accordingly, State/prosecution is permitted to re-examine PW-20 victim and examine record keeper/Office Superintendent/Incharge of the record of Him Academy Public School, Vikasnagar, Hamirpur alongwith necessary record to prove on record Matriculation Certificate in evidence as well as record of date of birth of the victim and these witnesses are directed to be summoned alongwith entire relevant record for recording their statement with respect to the Matriculation Certificate and date of birth record of the victim in School record.
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36. Steps for re-calling/summoning witnesses be taken within three .
days and thereafter notice be issued to these witnesses, which shall be served by the State Dasti for next date.
37. While hearing various Criminal Appeals and Revisions, it had been noticed in large number of cases that for lapse in investigation, especially with respect to collecting evidence related to age proof of child in conflict with of law as well as minor victim, the prosecution cases fail. Therefore, before parting, in order to avoid similar lapse in investigation, Director General of rt Police, Himachal Pradesh is directed to circulate provisions of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 alongwith necessary guidelines/ instructions to all Investigating Officers in Himachal Pradesh, directing them that for collecting evidence with respect to age proof of child in conflict with law as well as minor victim, not only strictly adhere to mandate of Section 94 of the J.J. Act by collecting preferential evidence, but also to collect all available evidence regarding proof of date of birth by obtaining date of birth certificate from the school, Matriculation or equivalent certificate from the concerned examination Board/School, birth certificate issued by Corporation or Municipal Authority or Panchayat as the case may be and also other corroborating supporting documents indicating the same date of birth and in absence of any documents or doubtful documents, to resort to option of ossification test or any other latest age determining test by taking orders of the Committee or the Board/Court if required.
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38. The Investigating Officer also be directed to make a effort to cite .
all those persons in the list of witnesses, who are necessary to be examined to prove the contents of such documents as well as those who are author of entry, legal custodian of the record, documents and/or certificate issuing official/author and also witnesses in whose presence such documents are obtained/taken in possession.
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39. Investigating Officers also be directed to make an endavour to prove date of birth by all means to avoid any adverse impact on the prosecution rt case due to different interpretation and explanation rendered by the Court regarding nature of document relied upon for proving the date of birth and mode of proof of such document. Necessary instructions be issued at the earliest, latest by 15th January, 2026.
40. Learned Deputy Advocate General to transmit copy of this order to Director General of Police, Himachal Pradesh for compliance.
List before Registrar (Judicial) on 29th December, 2025 for fixing a date for recording of additional evidence.
The application is allowed and disposed of in aforesaid terms.
(Vivek Singh Thakur), Judge.
(Bipin C. Negi), Judge.
20th December, 2025 (Keshav) ::: Downloaded on - 20/12/2025 20:30:38 :::CIS