Thursday, 8 October 2015

Duty of court and public prosecutor for fair trial of case

In Shailendra Kumar v. State of Bihar [(2002)1 SCC 655] it was
observed as under: (SCC pp. 657-58, para 9)
 “9. In our view, in a murder trial it is sordid and repulsive matter
that without informing the police station officer-in-charge, the
matters are proceeded by the court and by the APP and tried to be
disposed of as if the prosecution has not led any evidence. From
the facts stated above, it appears that the accused wants to
frustrate the prosecution by unjustified means and it appears that
by one way or the other the Additional Sessions Judge as well as
the APP have not taken any interest in discharge of their duties. It
was the duty of the Sessions Judge to issue summons to the
investigating officer if he failed to remain present at the time of
trial of the case. The presence of investigating officer at the time of
trial is must. It is his duty to keep the witnesses present. If there is
failure on the part of any witness to remain present, it is the duty of
the court to take appropriate action including issuance of bailable/
non-bailable warrants as the case may be. It should be well
understood that prosecution cannot be frustrated by such methods
and victims of the crime cannot be left in a lurch.”
(Emphasis supplied)
Thus:-
(a) It is a duty of the trial court to inform the Investigating
Officer, before it starts taking evidence;
(b) It is a duty of Investigating Officer to remain present
before the trial court;
(c) It is a duty of the Investigating Officer to bring
prosecution witnesses, to the court;
(d) It is a duty of Sessions Judge to secure presence of
witnesses and by summons if they are not remaining present,
bailable and then non-bailable warrant can be issued;
(e) Disposal of appeal does not mean, disposal for
statistical purposes, but, effective and real disposal to achieve the
object of any trial;
(f) Even the trial court can pass an order to stop the
payment of salary or pension of Investigating Officer or Doctor or
other Government Officers, who are avoiding to give evidence in
court, after summons are issued for their presence.
It is high time for the Judges of the trial court, to learn the art
of securing presence of crucial prosecution witnesses.
No order of acquittal shall be passed by the trial court for want
of evidence of Investigating Officer or Doctor or other Government
Officer, if these witnesses are alive and getting salary or pension.
The Court has all the power to stop the payment of salary or pension
to them, if they are avoiding the court.
In view of the aforesaid decision, it was the duty of the trial
court to arrive at a just decision. The criminal court is an effective
instrument for dispensing the justice and the Presiding Judge must
cease to be a silent spectator or a mere evidence recording machine
in the trial. It was the duty of the trial court to find out the truth and
administer justice and it was a duty of the Investigating Officer to
remain present in the trial court and it is the duty of the Investigating
Officer to keep the witnesses present before the trial court. There is
a failure in performance of the duty by the Investigating Officer as
well as by the Public Prosecutor as also by the learned trial court in
bring the evidence on record, though it is available i.e. the
depositions of the aforesaid three doctors and the Investigating
Officer ought to have been recorded by the learned trial court.
IN THE HIGH COURT OF JHARKHAND AT RANCHI


Cr. Appeal (DB) No. 201 of 2013
with
I.A. No.1673 of 2013
with
Cr. Appeal (DB) No. 33 of 2013
--------
Cr. Appeal (DB) No. 201 of 2013:
State of Jharkhand … Appellant
Versus
Sanjay Mondal

CORAM: HON'BLE MR. JUSTICE D. N. PATEL
HON'BLE MR. JUSTICE S. CHANDRASHEKHAR

Dated: April, 10, 2013
Per D.N. Patel, J

1) Both these appeals, one by State and another by victims [Cr.
Appeal(DB) No. 33 of 2013] have been preferred against the judgment and
order of acquittal passed by the Additional Sessions Judge-I, Jamtara in
Sessions Trial No.103 of 2007, whereby the learned trial Court had
acquitted the respondents-accused from the charge under Section 307 of
the Indian Penal Code.
2) In Cr. Appeal (DB) No.201 of 2013, which is preferred by the State,
an interlocutory application being I.A. No.1673 of 2013 has been preferred
by the State under section 391(1) of the Code of Criminal Procedure for
adducing further evidence, because it is necessary, looking to the evidence
on record in Sessions Trial No.103 of 2007. There are several injured
eyewitnesses who are PW.1, PW.3, PW.4, PW.5, PW.6, PW.7 & PW.8.
Their injury certificates are also on the record, but, the learned trial Court
has not allowed the doctors, namely, (i) Dr. R.P. Singh, (ii) Dr. S.H. Prasad
and (iii) Dr. J.J. Minz, to be examined, who had given these Certificates.
The summons were also issued to these doctors on 25th September, 2008.
These doctors have not remained present before the learned trial Court.
Ultimately, the stage of taking evidence of the prosecution was closed. The
application given under Section 311 of the Code of Criminal Procedure
before the learned trial Court for calling these doctors was also rejected.
Again, an application was given by the prosecution under Section 311 of
the Code of Criminal Procedure for examination of one Sri Anand Mandal,
who was compounder of Jamtara Sadar Hospital, where the witnesses
were admitted or they were treated by Dr. R.P. Singh and other doctors.
This application under Section 311 of the Code of Criminal Procedure was
allowed by the trial Court and the witness Anand Mandal was examined3
and he was narrated in the judgment by the learned trial Court as a Court
Witness No.1. It is further submitted by the learned S.C.-II appearing for the
State that though he was examined with permission of the Court and
though he has been narrated as Court Witness No.1, the learned trial Court
in internal page Nos.8 and 9 of the impugned judgment has stated that he
is not a competent witness and he cannot prove injury certificates and,
therefore, order of acquittal has been passed. This is not permissible in the
eyes of law. It is vehemently submitted by both the counsels appearing for
the appellants that it was the duty of the learned trial Court to call these
three doctors in the Court as prosecution witnesses and if they are not
obeying the summons, even bailable warrant can be issued against them,
but, the presence of the witnesses ought to have been secured by the trial
Court to meet the ends of justice. There is no fault on the part of the victims
who are appellants of Cr. Appeal No.33 of 2013, because victims have no
control upon the prosecution witnesses to be brought in the Court. It is
vehemently submitted by the counsel for the appellants in Cr. Appeal
No.33 of 2013 Mr. Kaushik Sarkhel that it is duty of the Investigating Officer
of the case concerned to to remain present before the learned trial Court
and also to secure presence of the prosecution witnesses. It is vehemently
submitted by Mr. Sarkhel that Dr. J.J. Minz, is serving at Rajendra Institute
of Medical Sciences, Ranchi, who has examined the witnesses Sukar
Mandal (PW.4) and Mithu Mandal (PW.6 and appellant No.6 in Cr. Appeal
No.33/13). Despite these facts, the lethargic Investigating Officer of the
Sessions Case has not examined Dr. J.J. Minz as a prosecution witness
and equally the learned trial Court has also not compelled Dr. J.J. Minz to
appear before the trial Court as a prosecution witness and application
under Sec. 311 of the Code of Criminal Procedure, was wrongly registered.
3) It is also submitted by the counsel for the State that the examination
of these three doctors is very much necessary to secure the ends of justice,
so that the real accused may not go unpunished and it is submitted by the
counsel for the appellants in both the Criminal Appeals that let the
judgment and order of acquittal passed by the Additional Sessions Judge-I,
Jamtara in Sessions Trial No.103 of 2007 be quashed and set aside to the
extent the respondents-accused have been acquitted from the charge
under Section 307 of the Indian Penal Code and the matter may be
remanded with a direction by allowing I.A. No.1673 of 2013 to take further4
evidence of Dr. R.P. Singh, Dr. H.S. Prasad and Dr. J.J. Minz and to decide
the case so far as it relates to under Section 307 of the Indian Penal Code,
afresh within stipulated time or under Section 326 and 324 of the Indian
Penal Code.
4) Counsel for the appellants have also relied upon the following
decisions: -
a) (1999)6 SCC 110 (Rajendra Prasad v. Narcotic Cell);
b) (2001)4 SCC 759 (Rambhau & anr. v. State of Maharashtra)
c) (2004)4 SCC 158 (Zahira Habibulla H. Sheikh & anr. v. State of Gujarat & anr.);
d) (2005)1 SCC 115 (Satyajit Banerjee & ors. v. State of W.B. & ors.);
e) (2011)4 SCC 402 (Ashok Tshering Bhutia v. State of Sikkim); and
f) (2012)3 SCC 387 (Sudevanand v. State through C.B.I.)
and on the basis of the aforesaid decisions, it is submitted by both the
counsels for the appellants that by allowing an application under Section
311 of the Code of Criminal Procedure (I.A. No.1673 of 2013), it will not
tantamount to filling up of lacuna, because the contemporary documents,
namely, the injury certificates of PW.1, PW.3, PW.4, PW.5, PW.6, PW.7
and PW.8 are already on record. Previously, the application to examine
these three doctors was also given by the Public Prosecutor. Thus, these
three doctors are also available to give evidence. Therefore, it is merely a
procedure to be followed for giving exhibits numbers to the Injury
Certificates, so that these injuries sustained by the victims could have been
appreciated in proving the mens rea on the part of the appellants-accused
and the ingredient of Section 307 of the Indian Penal Code can be proved
or the ingredients of any other lesser offence can be proved by the
prosecution beyond all reasonable doubts and the respondents-accused
may be punished adequately, as per evidences. Over and above this
ground for setting aside the impugned judgment, several other grounds
have also been raised like appreciation of evidence etc.
5) We have heard learned counsel appearing for the respondentsaccused
in both these appeals who have vehemently submitted that by
allowing additional evidence to be taken would mean filling up of lacuna on
the part of the prosecution. Moreover, they have already examined a
compounder of Sadar Hospital, Jamtara. Thus, they have already
examined a witness for proving the medical certificates and as they have
failed to prove the medical certificates of the injured eyewitnesses correctly,
the order of acquittal has been passed by the trial Court and no error has5
been committed by the trial Court in appreciating the evidence on record.
6) We have heard learned counsels appearing for both sides and
looking to the evidences on record, it appears that this is a case having
allegations against the respondents for an offence under Section 307 of the
Indian Penal Code. It is submitted that the injuries have been sustained by
several prosecution witnesses, the injury certificates are also on record.
Two doctors, namely Dr. R.P. Singh and Dr. S.H. Prasad were mentioned
as prosecution witnesses in the charge-sheet. It was duty of the learned
trial Court to call these witnesses in Court. Duty never comes to an end by
mere issuance of summons. Furthermore, it is also required that if the
prosecution witnesses are not coming to the Court on issuance of
summons, it is the duty of the trial Court to issue necessary warrants upon
the prosecution witnesses. Even the Courts can go to the extent of issuing
non-bailable warrant. Courts cannot be a silent spectator and no order of
acquittal can be passed for want of evidence of a doctor or Investigating
Officers. Even if these Government Officers are not appearing by merely
issuance of summons, bailable warrants and non-bailable warrants can
also be issued against them to secure their attendance. The learned trial
Court has failed to perform its duty and order of acquittal has been passed
in Sessions Trial No.103 of 2007, especially under Section 307 of the
Indian Penal Code. It was also the duty of the Public Prosecutor who has
conducted the Sessions Trial Case, to bring the witnesses through
Investigating Officer in the trial Court. Contemporary documents i.e.
medical certificates of several injured witnesses were on record. Public
Prosecutor could have impressed upon the Investigating Officer to bring
these evidences of the doctors on record in proper time limit. The
Investigating Officer has also failed to perform his duty by not bringing the
prosecution witnesses whose names are appearing in the charge-sheet
before the learned trial Court. The Investigating Officer has also failed to
perform his duty in not mentioning the name of Dr. J.J. Minz of Rajendra
Institute of Medical Sciences, Ranchi as prosecution witness, because he
has examined PW.4 Sukar Mandal and PW.6 Mithu Mandal. Their injury
certificates have also been issued by Dr. J.J. Minz which are on record of
the Sessions Trial. It ought to have been kept in mind by the Investigating
Officer that the doctors who have given the injury certificates should be
mentioned as a prosecution witnesses in the charge-sheet. Nor even the6
Superintendent of Police of concerned district has taken any care because
at every regular intervals of time, the case diary of the concerned case is
sent to the Superintendent of Police of the concerned district. The
Superintendent of Police has also failed in performing his duty. He could
have given a guidance that Dr. J.J. Minz should be a prosecution witness. It
is the duty of the Superintendent of Police of the concerned district also to
give a proper guidance to the Investigating Officers who are working under
him to secure the presence of prosecution witnesses. The whole approach
of the Investigating Officer, the Superintendent of Police of the district
Jamtara, the Public Prosecutor and also the learned trial Court is not up to
the mark. When several witnesses have sustained injuries, these Police
Officers, Public Prosecutor and the learned trial Court cannot ignore the
most vital evidence which affects the very root of the case. The order of
acquittal passed by the trial Court is mainly on the ground that the injury
certificates have not been proved at all, though all the injured eyewitnesses
have given a clear and convincing evidences. The trial Court would have
avoided such type of remand of the matter by this Court, by taking care of
calling the witnesses in the Court by issuing summons, thereafter by
issuing bailable warrant and thereafter by issuing non-bailable warrants, if
these witnesses are avoiding the court. It is a strange approach on the part
of the trial Court that when prosecution is ready to give evidence of these
three doctors, why the trial Court has refused to take evidence. Because of
this approach of the trial Court, much more time has been consumed and
we have to remand the matter to the trial Court.
7) Whenever any Investigating Officer or any doctor is not coming to
the Court to give evidence, henceforth the trial Court shall issue initially the
summons, thereafter, if they fail to remain present before the court to give
evidence, without justifiable reason, then bailable warrants shall be issued
and, thereafter, if their presence cannot be secured as prosecution
witnesses, we, hereby, direct the trial Courts that they shall secure the
presence of Investigating Officer as well as the doctors and other
prosecution witnesses by issuing non-bailable warrants.
8) Section 311 of the Code of Criminal Procedure, 1973 reads as
under:
“311. Power to summon material witness, or examine
person present.- Any Court may, at any stage of any inquiry, trial or
other proceeding under this Code, summon any person as a witness,7
or 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
decision of the case.”
Further, Section 391 of the Code of Criminal Procedure, 1973 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 taken 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 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.”
Section 165 of the Indian Evidence Act, 1872 reads as under:
“165. Judge's power to put question or order production.-
The Judge may, in order to discover or to obtain proper proof of
relevant facts, ask any question he pleases, in any form, at any time,
of any witness, or of the parties, about any fact relevant or
irrelevant; and may order the production of any document or thing;
and neither the parties nor their agents shall be entitled to take any
objection to any such question or order, nor, without the leave of the
Court, to cross-examine any witness upon any answer given in reply
to any such question:
Provided that the judgment must be based upon facts
declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge
to compel any witness to answer any question, or to produce any
document which such witness would be entitled to refuse to answer,
or produce under secs. 121 to 131, both inclusive, if the question
were asked or the document were called for by the adverse party;
nor shall the Judge ask any question which it would be improper for
any other person to ask under section 148 or 149; nor shall be
dispense with primary evidence of any document, except in the cases
herein before excepted.”
(Emphasis supplied)
In the light of the aforesaid provisions, the trial court has power to
summon any person to give evidence, if his/her evidence is essential for
just decision of the case and under Section 391 of the Code of Criminal
Procedure this Court has also power to take further evidence or to direct it8
to be taken, if the evidence is necessary to secure the ends of justice.
9) It has been held by Hon'ble Supreme Court in the case of Rajendra
Prasad v. Narcotic Cell, as reported in (1999)6 SCC 110, especially at
paragraph nos. 7 and 8 as under:
“7. It is a common experience in criminal courts that defence
counsel would raise objections whenever courts exercise powers under
Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by
saying that the court could not “fill the lacuna in the prosecution case”. A
lacuna in the prosecution is not to be equated with the fallout of an
oversight committed by a Public Prosecutor during trial, either in
producing relevant materials or in eliciting relevant answers from
witnesses. The adage “to err is human” is the recognition of the
possibility of making mistakes to which humans are prone. A corollary of
any such laches or mistakes during the conducting of a case cannot be
understood as a lacuna which a court cannot fill up.
8. Lacuna in the prosecution must be understood as the inherent
weakness or a latent wedge in the matrix of the prosecution case. The
advantage of it should normally go to the accused in the trial of the case,
but an oversight in the management of the prosecution cannot be treated
as irreparable lacuna. No party in a trial can be foreclosed from
correcting errors. If proper evidence was not adduced or a relevant
material was not brought on record due to any inadvertence, the court
should be magnanimous in permitting such mistakes to be rectified. After
all, function of the criminal court is administration of criminal justice and
not to count errors committed by the parties or to find out and declare
who among the parties performed better.
(Emphasis supplied)
In view of the aforesaid decision, the error on the part of the
prosecution of non-examination of three doctors and the
Investigating Officer should be allowed to be corrected.
10) It has been held by Hon'ble Supreme Court in the case of Rambhau
& anr. v. State of Maharashtra, as reported in (2001)4 SCC 759,
especially at paragraph nos. 2, 3, 4, 6 and 12 as under:
“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.
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.
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 rule9
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 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 Code.
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. Corpn. of
Calcutta (AIR 1966 SC 529) while explaining the meaning of irregularity
observed: (AIR p. 534, para 13)
“A point was, however, made that Section 131(2)(b) applies
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. Chandoolal
Bhai Chand Modi (AIR 1953 Cal. 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 statutebook
has been for the purpose of making it available to the court, not to
fill up any gap in the prosecution case but to oversee that 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 subserving the ends of justice, the same runs counter to the
concept of justice.
12. Mr Verma, the learned Senior Advocate very strongly
contended that the High Court had no authority or jurisdiction to examine
the accused persons in the High Court to rectify the defect and the lacuna
in the prosecution. The High Court records it to be a mere irregularity
and on the complexities of issue, we do not see any reason as to why such
a course ought not to be permitted to be taken recourse to, in the fact
situation of the matter under consideration. The omission cannot but be
ascribed to be a mere irregularity. The High Court on the basis of
relevant evidence on record held that the prosecution has fully established
the demand by Accused 1 on 23-1-1989. It is the demand of 24th January
which was said to have not been put to the accused but the factum of
demand on an earlier day stands proved and concluded together with the
seizure of the tainted notes on 24th January, completes the offence, as
such omission to put to the accused, the demand on 24th cannot be said to
be of such a nature which would go to the root of the matter. It is not a
defect incurable in nature but a mere irregularity which the High Court
thought it fit to cure, as such we do not find any material objection to such
a method as stands adopted by the High Court. The irregularity has been
cured. The prosecution has clearly established that Appellant 1 is a public
servant and in discharge of his official duties made a demand of Rs 130010
from PW 1 Sangamlal as an illegal gratification and taking into account
the evidence as is available on record, Accused 2 also has played a very
significant role in negotiating on the figure of the amount and further
having the notes exchanged at the dictate of Appellant 1, it cannot thus
but be said that Appellant 2 substantially abetted the crime and thus we
record our agreement in the finding of the High Court that the accused
persons are guilty of the offence for which they were charged and the
question of recording a finding of acquittal in the matter cannot by any
stretch be sustained. In that view of the matter, this appeal fails and is
dismissed.”
(Emphasis supplied)
Thus, in view of the aforesaid decision, the High Court can
also take evidence at an appellate stage in the interest of justice and
if other witnesses are on record and if some of the questions are not
asked under Section 313 of the Code of Criminal Procedure to the
accused, the accused can be examined even at an appellate stage
by the High Court or by the lower appellate court.
11) It has been held by the Hon'ble Supreme Court in the case of Zahira
Habibulla H. Sheikh & anr. v. State of Gujarat & ors., as reported in
(2004)4 SCC 158, especially at paragraph nos. 21, 35, 38, 44, 47, 48, 49,
51, 53, 58 and at relevant paragraph no.71 as under:
“21. Section 391 of the Code is intended to subserve the ends of
justice by arriving at the truth and there is no question of filling of any
lacuna in the case on hand. The provision though a discretionary one is
hedged with the condition about the requirement to record reasons. All
these aspects have been lost sight of and the judgment, therefore, is
indefensible. It was submitted that this is a fit case where the prayer for
retrial as a sequel to acceptance of additional evidence should be
directed. Though, retrial is not the only result flowing from acceptance of
additional evidence, in view of the peculiar circumstances of the case, the
proper course would be to direct acceptance of additional evidence and in
the fitness of things also order for a retrial on the basis of the additional
evidence.
35. This Court has often emphasised that in a criminal case the fate of
the proceedings cannot always be left entirely in the hands of the parties,
crimes being public wrongs in breach and violation of public rights and
duties, which affect the whole community as a community and are harmful
to the society in general. The concept of fair trial entails familiar
triangulation of interests of the accused, the victim and the society and it
is the community that acts through the State and prosecuting agencies.
Interests of society are not to be treated completely with disdain and as
persona non grata. Courts have always been considered to have an
overriding duty to maintain public confidence in the administration of
justice — often referred to as the duty to vindicate and uphold the
“majesty of the law”. Due administration of justice has always been
viewed as a continuous process, not confined to determination of the
particular case, protecting its ability to function as a court of law in the
future as in the case before it. If a criminal court is to be an effective
instrument in dispensing justice, the Presiding Judge must cease to be a
spectator and a mere recording machine by becoming a participant in the
trial evincing intelligence, active interest and elicit all relevant materials11
necessary for reaching the correct conclusion, to find out the truth, and
administer justice with fairness and impartiality both to the parties and to
the community it serves. Courts administering criminal justice cannot turn
a blind eye to vexatious or oppressive conduct that has occurred in
relation to proceedings, even if a fair trial is still possible, except at the
risk of undermining the fair name and standing of the judges as impartial
and independent adjudicators.
38. A criminal trial is a judicial examination of the issues in the case
and its purpose is to arrive at a judgment on an issue as to a fact or
relevant facts which may lead to the discovery of the fact issue and obtain
proof of such facts at which the prosecution and the accused have arrived
by their pleadings; the controlling question being the guilt or innocence of
the accused. Since the object is to mete out justice and to convict the guilty
and protect the innocent, the trial should be a search for the truth and not
a bout over technicalities, and must be conducted under such rules as will
protect the innocent, and punish the guilty. The proof of charge which has
to be beyond reasonable doubt must depend upon judicial evaluation of
the totality of the evidence, oral and circumstantial, and not by an isolated
scrutiny.
44. The power of the court under Section 165 of the Evidence Act is in
a way complementary to its power under Section 311 of the Code. The
section consists of two parts i.e.: (i) giving a discretion to the court to
examine the witness at any stage, and (ii) the mandatory portion which
compels the court to examine a witness if his evidence appears to be
essential to the just decision of the court. Though the discretion given to
the court is very wide, the very width requires a corresponding caution. In
Mohanlal v. Union of India this Court has observed, while considering the
scope and ambit of Section 311, that the very usage of the words such as,
“any court”, “at any stage”, or “any enquiry or trial or other
proceedings”, “any person” and “any such person” clearly spells out
that the section has expressed in the widest-possible terms and do not
limit the discretion of the court in any way. However, as noted above, the
very width requires a corresponding caution that the discretionary powers
should be invoked as the exigencies of justice require and exercised
judicially with circumspection and consistently with the provisions of the
Code. The second part of the section does not allow any discretion but
obligates and binds the court to take necessary steps if the fresh evidence
to be obtained is essential to the just decision of the case, “essential” to
an active and alert mind and not to one which is bent to abandon or
abdicate. Object of the section is to enable the court to arrive at the truth
irrespective of the fact that the prosecution or the defence has failed to
produce some evidence which is necessary for a just and proper disposal
of the case. The power is exercised and the evidence is examined neither
to help the prosecution nor the defence, if the court feels that there is
necessity to act in terms of Section 311 but only to subserve the cause of
justice and public interest. It is done with an object of getting the evidence
in aid of a just decision and to uphold the truth.
47. Section 391 of the Code is another salutary provision which
clothes the courts with the power to effectively decide an appeal. Though
Section 386 envisages the normal and ordinary manner and method of
disposal of an appeal, yet it does not and cannot be said to exhaustively
enumerate the modes by which alone the court can deal with an appeal.
Section 391 is one such exception to the ordinary rule and if the appellate
court considers additional evidence to be necessary, the provisions in
Section 386 and Section 391 have to be harmoniously considered to
enable the appeal to be considered and disposed of also in the light of the
additional evidence as well. For this purpose it is open to the appellate
court to call for further evidence before the appeal is disposed of. The12
appellate court can direct the taking up of further evidence in support of
the prosecution; a fortiori it is open to the court to direct that the accused
persons may also be given a chance of adducing further evidence. Section
391 is in the nature of an exception to the general rule and the powers
under it must also be exercised with great care, especially on behalf of the
prosecution lest the admission of additional evidence for the prosecution
operates in a manner prejudicial to the defence of the accused. The
primary object of Section 391 is the prevention of a guilty man's escape
through some careless or ignorant proceedings before a court or
vindication of an innocent person wrongfully accused. Where the court
through some carelessness or ignorance has omitted to record the
circumstances essential to elucidation of truth, the exercise of powers
under Section 391 is desirable.
48. The legislative intent in enacting Section 391 appears to be the
empowerment of the appellate court to see that justice is done between the
prosecutor and the persons prosecuted and if the appellate court finds that
certain evidence is necessary in order to enable it to give a correct and
proper finding, it would be justified in taking action under Section 391.
49. There is no restriction in the wording of Section 391 either as to
the nature of the evidence or that it is to be taken for the prosecution only
or that the provisions of the section are only to be invoked when formal
proof for the prosecution is necessary. If the appellate court thinks that it
is necessary in the interest of justice to take additional evidence, it shall
do so. There is nothing in the provision limiting it to cases where there
has been merely some formal defect. The matter is one of discretion of the
appellate court. As reiterated supra, the ends of justice are not satisfied
only when the accused in a criminal case is acquitted. The community
acting through the State and the 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.
51. Need for circumspection was dealt with by this Court in Mohanlal
Shamji Soni case and Ram Chander v. State of Haryana which dealt with
the corresponding Section 540 of the Code of Criminal Procedure, 1898
(in short “the old Code”) and also in Jamatraj case. While dealing with
Section 311 this Court in Rajendra Prasad v. Narcotic Cell held as
follows: (SCC p. 113, paras 7-8)
“7. It is a common experience in criminal courts that defence
counsel would raise objections whenever courts exercise powers
under Section 311 of the Code or under Section 165 of the
Evidence Act, 1872 by saying that the court could not ‘fill the
lacuna in the prosecution case’. A lacuna in the prosecution is not
to be equated with the fallout of an oversight committed by a
Public Prosecutor during trial, either in producing relevant
materials or in eliciting relevant answers from witnesses. The
adage ‘to err is human’ is the recognition of the possibility of
making mistakes to which humans are prone. A corollary of any
such laches or mistakes during the conducting of a case cannot be
understood as a lacuna which a court cannot fill up.
8. Lacuna in the prosecution must be understood as the
inherent weakness or a latent wedge in the matrix of the
prosecution case. The advantage of it should normally go to the
accused in the trial of the case, but an oversight in the
management of the prosecution cannot be treated as irreparable
lacuna. No party in a trial can be foreclosed from correcting
errors. If proper evidence was not adduced or a relevant material
was not brought on record due to any inadvertence, the court
should be magnanimous in permitting such mistakes to be
rectified. After all, function of the criminal court is administration13
of criminal justice and not to count errors committed by the parties
or to find out and declare who among the parties performed
better.”
53. In the ultimate analysis whether it is a case covered by Section 386
or Section 391 of the Code, the underlying object which the court must
keep in view is the very reason for which the courts exist i.e. to find out
the truth and dispense justice impartially and ensure also that the very
process of courts are not employed or utilized in a manner which give
room to unfairness or lend themselves to be used as instruments of
oppression and injustice.
58. Though it was emphasised with great vehemence by Mr Sushil
Kumar and Mr K.T.S. Tulsi that the High Court dealt with the application
under Section 391 of the Code in detail and not perfunctorily as
contended by learned counsel for the appellants, we find that nowhere the
High Court has effectively dealt with the application under Section 391 as
a part of the exercise to deal with and dispose of the appeal. In fact the
High Court dealt with it practically in one paragraph i.e. para 36 of the
judgment accepting the stand of learned counsel for the accused that the
consideration of the appeal has to be limited to the records set up under
Section 385(2) of the Code for disposal of the appeal under Section 386.
This perception of the powers of the appellate court and misgivings as to
the manner of disposal of an appeal per se vitiates the decision rendered
by the High Court. Section 386 of the Code deals with the manner and
disposal of the appeal in the normal or ordinary course. Section 391 is in
the nature of exception to Section 386. As was observed in Rambhau case
if the stand of learned counsel for the accused as was accepted by the
High Court is maintained, it would mean that Section 391 of the Code
would be a dead letter in the statute book. The necessity for additional
evidence arises when the court feels that some evidence which ought to
have been before it is not there or that some evidence has been left out or
erroneously brought in. In all cases it cannot be laid down as a rule of
universal application that the court has to first find out whether the
evidence already on record is sufficient. The nature and quality of the
evidence on record is also relevant. If the evidence already on record is
shown or found to be tainted, tailored to suit or help a particular party or
side and the real truth has not and could not have been spoken or brought
forth during trial, it would constitute merely an exercise in futility, if it
considered first whether the evidence already on record is sufficient to
dispose of the appeals. Disposal of appeal does not mean disposal for
statistical purposes but effective and real disposal to achieve the object of
any trial. The exercise has to be taken up together. It is not that the Court
has to be satisfied that the additional evidence would be necessary for
rendering a verdict different from what was rendered by the trial court. In
a given case even after assessing the additional evidence, the High Court
can maintain the verdict of the trial court and similarly the High Court on
consideration of the additional evidence can upset the trial court's verdict.
It all depends upon the relevance and acceptability of the additional
evidence and its qualitative worth in deciding the guilt or innocence of the
accused.
71. ............................................. Role of the Public Prosecutor was
also not in line with what is expected of him. ..............................................
In Shailendra Kumar v. State of Bihar [(2002)1 SCC 655] it was
observed as under: (SCC pp. 657-58, para 9)
 “9. In our view, in a murder trial it is sordid and repulsive matter
that without informing the police station officer-in-charge, the
matters are proceeded by the court and by the APP and tried to be
disposed of as if the prosecution has not led any evidence. From14
the facts stated above, it appears that the accused wants to
frustrate the prosecution by unjustified means and it appears that
by one way or the other the Additional Sessions Judge as well as
the APP have not taken any interest in discharge of their duties. It
was the duty of the Sessions Judge to issue summons to the
investigating officer if he failed to remain present at the time of
trial of the case. The presence of investigating officer at the time of
trial is must. It is his duty to keep the witnesses present. If there is
failure on the part of any witness to remain present, it is the duty of
the court to take appropriate action including issuance of bailable/
non-bailable warrants as the case may be. It should be well
understood that prosecution cannot be frustrated by such methods
and victims of the crime cannot be left in a lurch.”
(Emphasis supplied)
Thus:-
(a) It is a duty of the trial court to inform the Investigating
Officer, before it starts taking evidence;
(b) It is a duty of Investigating Officer to remain present
before the trial court;
(c) It is a duty of the Investigating Officer to bring
prosecution witnesses, to the court;
(d) It is a duty of Sessions Judge to secure presence of
witnesses and by summons if they are not remaining present,
bailable and then non-bailable warrant can be issued;
(e) Disposal of appeal does not mean, disposal for
statistical purposes, but, effective and real disposal to achieve the
object of any trial;
(f) Even the trial court can pass an oder to stop the
payment of salary or pension of Investigating Officer or Doctor or
other Government Officers, who are avoiding to give evidence in
court, after summons are issued for their presence.
It is high time for the Judges of the trial court, to learn the art
of securing presence of crucial prosecution witnesses.
No order of acquittal shall be passed by the trial court for want
of evidence of Investigating Officer or Doctor or other Government
Officer, if these witnesses are alive and getting salary or pension.
The Court has all the power to stop the payment of salary or pension
to them, if they are avoiding the court.
In view of the aforesaid decision, it was the duty of the trial
court to arrive at a just decision. The criminal court is an effective
instrument for dispensing the justice and the Presiding Judge must
cease to be a silent spectator or a mere evidence recording machine
in the trial. It was the duty of the trial court to find out the truth and
administer justice and it was a duty of the Investigating Officer to
remain present in the trial court and it is the duty of the Investigating
Officer to keep the witnesses present before the trial court. There is
a failure in performance of the duty by the Investigating Officer as
well as by the Public Prosecutor as also by the learned trial court in
bring the evidence on record, though it is available i.e. the
depositions of the aforesaid three doctors and the Investigating
Officer ought to have been recorded by the learned trial court.
12) It has been held by the Hon'ble Supreme Court in the case of
Satyajit Banerjee & ors. v. State of W.B. & ors., as reported in (2005)1
SCC 115, especially at paragraph no. 27, as under:
“27. So far as the position of law is concerned we are very clear that
even if a retrial is directed in exercise of revisional powers by the High
Court, the evidence already recorded at the initial trial cannot be erased
or wiped out from the record of the case. The trial Judge has to decide the
case on the basis of the evidence already on record and the additional
evidence which would be recorded on retrial.”
(Emphasis supplied)
13) It has been held by the Hon'ble Supreme Court in the case of
Ashok Tshering Bhutia v. State of Sikkim, as reported in (2011)4 SCC
402, especially at paragraph nos. 28, 29 and 32, as under:
“28. Additional evidence at the 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 CrPC 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., Ratilal Bhanji Mithani v. State of
Maharashtra, Rambhau v. State of Maharashtra, Anil Sharma v. State of
Jharkhand, Zahira Habibulla H. Sheikh v. State of Gujarat and Manu
Sharma v. State (NCT of Delhi).]
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
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 CrPC cannot be pressed
into service in order to fill up lacunae in the prosecution case.”
(Emphasis supplied)
In view of the aforesaid decision, additional evidence can be
taken even at the appellate stage in exceptional circumstances, to
remove the irregularity and to prevent the failure of justice. In view of
the aforesaid decision and looking to the aforesaid provisions of the
Code of Criminal Procedure, the evidence may be taken by the High
Court or in exercise of power under Section 391 of the Code of16
Criminal Procedure, the same may be directed to be taken by the
trial court.
14) It has been held by the Hon'ble Supreme Court in the case of
Sudevanand v. State through Central Bureau of Investigation, as
reported in (2012)3 SCC 387, especially at relevant paragraph no. 33, 34,
35 and 36, as under:
“33. The matter may be looked at from another angle. Section 391
CrPC provides as follows:
“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 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.”
(emphasis supplied)
It is, thus, to be seen that the provision is not limited to recall of a witness
for further cross-examination with reference to his previous statement.
The appellate court may feel the necessity to take additional evidence for
any number of reasons to arrive at the just decision in the case. The law
casts a duty upon the court to arrive at the truth by all lawful means. This
is another reason why we feel any reliance on Mishrilal that considered
the recall of a witness in the context of Section 145 of the Evidence Act is
quite misplaced in the facts of this case.
34. Mr Dey contended that Vikram’s statement that he is alleged to
have made in jail has no legal sanctity and it came to be made and
recorded in a manner completely unknown to law. Mr Dey may be right
but on that ground alone it would not be correct and proper to deny the
application of Section 391 CrPC. Take the case where, on the testimony of
the approver, a person is convicted by the trial court under Sections 302
and 120-B, etc. of the Penal Code and is sentenced to a life term. After the
judgment and order passed by the trial court and while the convict’s
appeal is pending before the High Court, the “approver” is found
blabbering and boasting among his friends that he was able to take the
court for a ride and settled his personal score with the convict by sending
him to jail to rot at least for 14 years. Such a statement would also be
completely beyond the legal framework but can it be said that in light of
such a development the convicted accused may not ask the High Court for
recalling the approver for further examination.
35. As a matter of fact, if some later statement has come to be
made in some legal ways, it may be admissible on its own without any
help from Section 311 or Section 391 CrPC. It is only such statement or
development which is otherwise not within the legal framework that would
need the exercise of the court’s jurisdiction to bring it before it as part of
the legal record.
36. In light of the discussions made above, we have no hesitation17
in holding that the High Court was in error in refusing to summon
Vikram, the approver (PW 1) for his further examination as prayed for on
behalf of the appellants. We, accordingly, set aside that part of the High
Court order and direct the High Court to summon Vikram (PW 1) for his
further examination by the appellants and if so desired by CBI. For the
sake of convenience, the High Court may direct a member of the Registry
of the rank of a Sessions Judge/Additional Sessions Judge to record the
additional evidence of Vikram (PW 1). The examination of the witness by
the appellants and CBI must not go beyond two working days each so that
the recording of his evidence should be complete in not more than four
days. The Registrar recording the evidence would certify it and place
before the Court and the Court shall then proceed to dispose of the
appeals.”
(Emphasis supplied)
In view of the aforesaid decision, the appellate court has
power to take additional evidence at an appellate stage.
15) It has been held by the Hon'ble Supreme Court in the case of State
of Gujarat v. Mohanlal Jitamalji Porwal, as reported in (1987)2 SCC 364,
at paragraph no. 5. as under:
“5. The next question which arises is as regards the request made by
the learned Assistant Public Prosecutor for adducing additional evidence
in order to prove letter Ex. 26 received from the Mint Master certifying
that the article in question was made of gold of the purity of 99.60. The
request was made in order to invoke the powers of the court under Section
391 of the Code of Criminal Procedure, 1973, which inter alia provides
that in dealing with any appeal under Chapter 29 the appeal court, if it
thinks additional evidence to be necessary, shall record its reasons and
may either take such evidence itself or ask it to be taken by a Magistrate.
The High Court rejected the prayer on the ground that it did not consider
it “expedient in the interests of justice to open a new vista of evidence” in
view of the fact that the offence had taken place six years back. The mere
fact that six years had elapsed, for which time-lag the prosecution was in
no way responsible, was no good ground for refusing to act in order to
promote the interests of justice in an age when delays in the court have
become a part of life and the order of the day. Apart from the fact that the
alleged lacuna was a technical lacuna in the sense that while the opinion
of the Mint Master had admittedly been placed on record it had not been
formally proved the report completely supported the case of the
prosecution that the gold was of the specified purity. 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 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 eye18
unmindful of the damage done to the national economy and national
interest. The High Court was therefore altogether unjustified in rejecting
the application made by the learned Assistant Public Prosecutor invoking
the powers of the Court under Section 391 of the Code of Criminal
Procedure. We are of the opinion that the application should have been
granted in the facts and circumstances of the case with the end in view to
do full and true justice. The application made by the learned Assistant
Public Prosecutor is therefore granted. The High Court will issue
appropriate directions for the recording of the evidence to prove the
report of the Mint Master under Section 391 CrPC when the matter goes
back to the High Court and is listed for directions. The appeal is therefore
allowed. The order of acquittal is set aside. The matter is remitted to the
High Court for proceeding further in accordance with law in the light of
the above said directions.”
(Emphasis supplied)
In view of the aforesaid decision, in case of any technical
lacuna, additional evidence should be taken by the High Court under
Section 391 of the Code of Criminal Procedure. The High Court had
rejected the application for additional evidence on the ground that
the offence had taken six years back, but, the Hon'ble Supreme
Court has allowed the application of the prosecution for adducing
additional evidence.
16) It has further been held by the Hon'ble Apex Court in the case of
Ratilal Bhanji Mithani v. State of Maharashtra & ors., as reported in
1971(1) SCC 523, at paragraph no.5, as under:
“5. Insofar as the special leave Petition (Criminal) No. 890 of, 1970 of
Accused 1 is concerned similar grounds to those urged by Accused 2 when
he filed his special leave Petition were also urged, namely, that the High
Court could not without setting aside the order of discharge direct a
Commission for the examination of German witnesses to issue. This Court
had in Accused 2's application specifically limited the question only to his
grievance that he was neither paid his lawyer's air fare to Germany and
back nor his daily allowance, and did not think that the other questions
raised therein were such as to merit leave being granted. Apart from this
consideration even on the question of jurisdiction of the High Court to
make the impugned orders there is a decision of this Court in Rajeswar
Prosad Misra v. State of West Bengal [1966(1) SCR 178] which supports
the contention of the learned Advocate for the respondent that the
Criminal Courts and the High Courts have ample power and jurisdiction
even in a case of a conviction to direct additional evidence in the interest
of justice and fair-play rather than take a different view of the oral
evidence. Much more so can the High Court in a case of discharge direct
even before setting aside the order of discharge to take further evidence
or additional evidence if it considers that it is necessary in the interest of
justice to do so. In our view of the matter this is not a case in which leave
should be granted. The petition is accordingly rejected.”
(Emphasis supplied)
In view of the aforesaid decision, even in case of conviction,
additional evidence can be taken.
17) It has been held by Hon'ble Supreme Court in the case of19
Rajeshwar Prasad Misra v. State of W.B., as reported in 1966(1) SCR
178: AIR 1965 SC 1887, at paragraph nos. 5 and 10, as under:
“5. It was at one time felt that the powers of the High Court were
somewhat limited when dealing with an appeal against an order of
acquittal but that was dispelled by the Judicial Committee in Sheo Swarup
v. King Emperor in a categoric pronouncement (later accepted by this
Court in many cases) that:
“There is ...... no foundation for the view apparently supported by
the judgments of some courts in India that the High Court has no power
or jurisdiction to reverse an order of acquittal on a matter of fact except
in cases in which the lower court has 'obstinately blundered' or has
'through incompetence, stupidity or perversity' reached such distorted
conclusions as to produce a positive miscarriage of justice, or has in some
other way so conducted itself as to produce a glaring miscarriage of
justice or has been tricked by the defence so as to produce a similar
result. Sections 417, 418 and 423 of the Code give to the High Court full
power to review at large the evidence upon which the order of acquittal
was founded, and to reach the conclusion that upon that evidence the
order of acquittal should be reversed. No limitation should be placed
upon that power unless it be found expressly stated in the Code. But in
exercising the power conferred by the Code and before reaching its
conclusions upon fact, the High Court should and will always give proper
weight and consideration to such matters as (1) the views of the trial
Judge as to the credibility of the witnesses; (2) the presumption of
innocence in favour of the accused, a presumption certainly not weakened
by the fact that he has been acquitted at his trial; (3) the right of the
accused to the benefit of any doubt; and (4) the slowness of an appellate
court in disturbing a finding of fact arrived at by a Judge who had the
advantage of seeing the witnesses.
10. 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 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. Commentaries upon
the Code are full of cases in which the powers under Section 428 were
exercised. We were cited a fair number at the hearing. Some of the
decisions suffer from the sin 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 the existence of a discretionary power in the
High Court and all that we consider necessary is to see whether the
discretion was properly exercised.”
(Emphasis supplied)
In view of the aforesaid decision, additional evidence can be
taken, by the High Court, at appellate stage, whenever, the High20
Court comes to the conclusion that there would be failure of justice
without additional evidence.
18) I.A. No.1673 of 2013 is, thus, allowed keeping in mind the aforesaid
reasons that the several injured eyewitnesses have given clear
depositions, but, the order of acquittal has been passed by the trial Court,
merely because, the doctors have not proved the injury certificates. We are
of the opinion that the aforesaid evidences of the three doctors are very
much necessary looking to other evidences on record and in the interest of
justice, we, hereby, allow I.A. No.1673 of 2013. Likewise Investigating
Officer has also not been examined. We are of the considered opinion that
without this additional evidence, surely, there would be failure of justice.
19) In the facts of the case, the injured eye-witnesses, were sent to
hospital by police. Some have received head injuries. Some witnesses
were admitted as Indoor Patients in the hospital and operation was carried
out. In this set of facts, it was a duty of the learned trial court to examine
Investigating Officer as well as Doctors as prosecution witnesses. Order of
acquittal could not be passed, for want of evidence of doctors. Since
contemporary documents are on record and witnesses are alive, who can
prove these documents (like Fard-beyan, F.I.R., Inquest- Panchanama,
Seizure List, Postmortem Report or Injury Certificate etc.), we hereby direct
the trial courts to examine these witnesses. The trial court should secure
the presence of witnesses, by issuance of summons, then by bailable
warrant and then by issuing non-bailable warrant.
Section 87 of the Code of Criminal Procedure reads as under:
“87. Issue of warrant in lieu of, or in addition to, summons.- A Court
may, in any case in which it is empowered by this Code to issue a
summons for the appearance of any person, issue, after recording its
reasons in writing, a warrant for his arrest.-
(a) if, either before the issue of such summons, or after the issue of the
same but before the time fixed for his appearance, the Court sees
reason to believe that he has absconded or will not obey the
summons; or
(b) if at such time he fails to appear and the summons is proved to
have been duly served in time to admit of his appearing in
accordance therewith and no reasonable excuse is offered for such
failure.”
Thus, the presence of any person can be secured by trial
court in view of the aforesaid provision.
20) We, therefore, direct the learned trial Court to take these evidences.
We, hereby, quash and set aside the order of acquittal passed by the trial21
Court in Sessions Trial No.103 of 2007 passed by the Additional Sessions
Judge-I, Jamtara so far as it relates to the acquittal of the accusedrespondents
under Section 307 of the Indian Penal Code, because this
order of acquittal is based upon incomplete evidence. Whole evidence is
not brought on record and therefore, total evidence has not been
appreciated by the trial court, before passing the order of acquittal. This is a
case of total failure of justice, because, though cogent and convincing
evidence is available, which affects the very root of the case, this important
evidence, has not been brought at the doorsteps of the trial court.
21) We also direct the Registry of this Court to circulate copy of this
decision to all the Judges of Jharkhand in the District Courts as well as in
the Subordinate Courts, so as to avoid similar errors and to avoid
multifariousness of proceedings.
22) Both these appeals are also allowed. I.A. No.1673 of 2013 is also
allowed and we hereby remand the matter to the trial Court so far as
acquittal under Section 307 of the Indian Penal Code is concerned. We
also direct the learned trial Court in the light of the decision rendered by
Hon'ble Supreme Court in the case of Satyajit Banerjee & ors. v. State of
W.B. & ors., as reported in (2005)1 SCC 115, to decide the matter afresh
keeping in mind the evidence already available on record and also keeping
in mind the additional evidence taken by the trial Court. The trial will be
decided by the Additional Sessions Judge, Jamtara, as early as possible
and practicable, preferably within a period of four months, from the date of
receipt of a copy of the order of this Court.
 (D. N. Patel, J)
Verma/Manoj/cp.2 (S. Chandrashekhar, J)
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