In view of the above, the law on the point can be
summarized 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 Cr.P.C. cannot be pressed into
service in order to fill up lacunae in the prosecution case.”
10] It is thus clear that the provisions of Section
391 cannot be invoked when the party concerned has fair
opportunity and has not availed of it. Such provision is
to be used in exceptional circumstances in order to
arrive at just conclusion to meet the ends of justice.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINIAL APPLICATION NO.4735/2012
IN CRIMINAL APPEAL NO.117/2012
Prakash @ Jaywant Vasudeo Wankhede,
V
The State of Maharashtra.
CORAM: S.S. SHINDE &
A.M. BADAR, JJ.
Dated : 13.01.2015
Citation: 2016 ALLMR(CRI)4564
1] This is an application by appellant/accused
under Section 391 of the Code of Criminal Procedure, 1973
(Cr.P.C. for the sake of brevity) for recording of
additional evidence of Sonali Manoj Deore mother of the
minor girl – an alleged victim of sexual abuse and
Sunanda Suresh Deore paternal grandmother of alleged
victim as well as for further crossexamination of PW10
the alleged minor victim of sexual abuse. The
applicant/accused is father of Sonali Deore and
grandfather of the minor girl alleged to be victim of
sexual abuse by him. Keeping in mind social object of
preventing social victimization of the victim and the
object of Section 228A of the Indian Penal Code, 1860,
we consider it appropriate not to give name of the
victim. Rather we intend to describe her as minor victim
girl. At the request of the learned counsel for the
applicant/accused, the application is taken up for
hearing prior to final hearing of the appeal.
2] The FIR lodged on 25.8.2009 by PW7 Major Suresh
Deore – son in law, has resulted in prosecution of the
applicant/accused for the offences punishable under
Sections 376, 376 read with Section 511 and 506 of Indian
Penal Code 1860(IPC for the sake of brevity) vide
Sessions Case No. 160 of 2010. After trial, the learned
Additional Sessions Judge, Dhule, by impugned judgment
and order dated 18.2.2012 has been pleased to convict the
applicant/accused of the offences punishable under
Sections 376 r/w. 511 and 506 of the IPC. The
applicant/accused came to be acquitted of the offence
punishable under Section 376 of the IPC.
3] Shri Dhorde, learned Senior Counsel appearing
for the applicant/accused, after pointing out the
relevant dates coming on record from the evidence of
informant – PW7 – Manoj Deore, contended that the minor
victim girl was having tons of opportunity to disclose
the incident to her own mother – Sonali Deore. He
further argued that the mother is most natural witness
in such case and as the alleged victim girl stayed with
her grandmother – Sunanda Deore, evidence of said Sunanda
ought to have been recorded by the learned trial court.
According to the learned Senior Counsel, the
Investigating Officer has recorded statement of both
these witnesses under Section 161 of the Cr.P.C.
However, the prosecution has failed to examine these
witnesses and thereby, prejudice is caused to the
applicant/accused. According to the learned Senior
Counsel, there used to be constant quarrels between
informant Manoj and his wife Sonali and because of this
matrimonial discord, the applicant/accused is roped in a
false case after procuring the medical evidence. The
applicant/accused is deprived of fair trial due to nonexamination
of these material witnesses by the
prosecution. Placing his reliance on Sudevanand Vs.
State through CBI reported in (2012) 3 SCC 387, Shri
Dhorde, learned senior counsel submitted that delay in
filing an application under Section 391 of Cr.P.C. does
not come in way of entertaining the same.
4] Per contra, the learned APP as well as Shri
Deshmukh, the learned counsel appearing for the alleged
minor victim of sexual abuse contended that there is no
necessity to record additional evidence and the averments
made in the application are totally incorrect.
5] The averments made in the instant application
are to the effect that the applicant/accused was in jail
during trial and, therefore, he could not impart proper
instructions to the Advocate, who defended him in the
trial. The applicant/accused was unaware of his right and
there was much less time with him to instruct the
learned defence counsel. It is further averred in the
application that whenever the applicant/accused used to
be produced from jail before the Sessions Court, he used
to give instructions. It is further averred that due to
oversight or inadvertence, the learned defence counsel
has not taken any steps to call Sonali and Sunanda Deore
as defence witnesses before the learned trial court.
Their evidence is important to arrive at just decision of
the present case, as PW1 the minor victim girl has
disclosed that she has narrated the incident to her
mother Sonali and grandmother Sunanda. According to the
applicant/accused, some important questions remain to be
asked to the minor girl alleged to be the victim of
sexual abuse.
6] At this stage, it needs to be kept in mind that
the law regarding appreciation of evidence in cases of
sexual offences and particularly in respect of minor girl
is set out by catena of judgments of the Honourable
Supreme Court. It is well settled that the Court should
examine broader probabilities of the case and not get
swayed by minor contractions or insignificant
discrepancies in evidence of witnesses. It is well
settled that if evidence of prosecutrix inspires
confidence then it can be relied upon without seeking
further corroboration to her statement and if for some
reason the court finds it difficult to place implicit
reliance on such testimony of the prosecutrix, it may
look at other evidence. The very nature of offence in
such cases, makes it difficult to get direct
corroborative evidence. The victim of sexual offence is
at a higher pedestal than the injured witnesses because
she is subjected to physical, psychological as well as
emotional injury. Such offence is a crime against the
entire society and it violates the victim's most
cherished fundamental right i.e. right to life contained
in Article 21 of the Constitution of India, 1950. As
such, it needs to be kept in mind that the trial court is
required to be alive to its responsibility and has to be
sensitive while dealing with the cases involving sexual
molestation and, particularly, that of a minor girl. We
have noted these principles and parameters as one of the
contentions is that the accused did not get fair trial.
7] We have set out these principles for assessing
the evidence in the cases of sexual offences particularly
against minor girls also because Section 391 of the
Cr.P.C. which is sought to be invoked by the
applicant/accused mandates that the additional evidence
can be recorded only if the appellate court thinks it to
be necessary to have the same for arriving at just
conclusion. Necessity to record such additional evidence
is dependent upon fact situation of each matter having
due regard to the concept of fair play and justice as
well as wellbeing of the society. No straightjacket
formula can be evolved for the same.
8] At this juncture, it is apposite to reproduce
Section 391 of the Cr.P.C. for better understanding of
the matter. It reads thus :
“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.”
9] Scope and ambit of provisions of Section 391 of
Cr.P.C. is aptly elaborated by the Honourable Apex Court
in the matter of “ Ashok Tshering Bhutia Vs. State of
Sikkim” (2011) 4 SCC 402, which is relied upon by both
the parties. Ratio of the said ruling can be found in
para Nos. 28 to 32 of the said judgment and they read
thus :
“28. Additional evidence at the appellate stage is
permissible, in case of a failure of justice. However, such power
must 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 Pasad 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).]
30. This court in State of Gujarat v. Mohanlal Jitamalji
Porwal dealing with the issue held as under : (SCC pp. 370-71,
para 5)
“5... 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 the movement
upon passions being arouses. 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, a larger Bench of this Court held as under.
(SCC 762, para 4)
“4. Incidentally, Section 391 forms an exception to the
general rule that an appeal must be decided on the evidence
which was before the trial court and the Powers being an
exception shall always have to be exercised with caution and
circumspection so as to meet the ends of justice. Be it
noted further that the doctrine of finality of judicial
proceedings does not stand annulled or affected in any way
by reason of exercise of power under Section 391 since the
same avoids a de novo trial. It is not to fill up the lacuna
but to 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.”
32. In view of the above, the law on the point can be
summarized 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 Cr.P.C. cannot be pressed into
service in order to fill up lacunae in the prosecution case.”
10] It is thus clear that the provisions of Section
391 cannot be invoked when the party concerned has fair
opportunity and has not availed of it. Such provision is
to be used in exceptional circumstances in order to
arrive at just conclusion to meet the ends of justice.
11] Shri Dhorde, learned Senior counsel has drawn
our attention to the ruling in the matter of “Zahira
Habibulla H. Sheikh and another Vs. State of Gujarat and
others” reported in AIR 2004 SC 3114, wherein, it is
held by the Honourable Apex Court that denial of fair
trial is as much injustice to the accused as is to the
victim of the society. It is further held that fair trial
obviously would mean trial before an impartial judge, a
fair prosecution and atmosphere of judicial calm. Fair
trial means a trial in which bias or prejudice for or
against the accuses, witnesses or the cause which is
being tried is eliminated. It is further held therein
that in such matters failure to hear material witnesses
is certainly denial of fair trial.
12] The Honourable Apex Court in the matter of
Zahira (supra) had an occasion to consider provisions of
Section 391 of the Cr.P.C. and it is held therein that
the legislative intent in enacting Section 391 of Cr.P.C.
appears to be empowerment of the appellate court to see
that justice is done between the prosecution and the
person 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.
13] It is thus clear that the provisions of Section
391 of Cr.P.C. are meant for subserving the ends of
justice and can be called in aid if the appellate court
finds that recording of additional evidence is essential
in order to secure the ends of justice by recording
accurate finding. Same is the ratio of ruling in the
matter of State of Maharashtra Vs. Vasant Shankar Masne
and another (1993) Cr.L.J. 1134, relied upon by Shri
Dhorde, the learned Senior Counsel.
14] Keeping in view these guiding principles of law,
let us examine the case in hand in order to ascertain
whether recording of additional evidence of Sunanda and
Sonali Deore as well as subjecting the minor victim girl
for further crossexamination is necessary to arrive at
just conclusion in the case in hand.
15] It is the case of the prosecution that the minor
victim of the alleged offence is a girl aged about 6
years. She is daughter of informant PW7 Manoj Deore, a
Clerk in the office of Court of Metropolitan Magistrate
residing in Government Quarter at Bandra alongwith his
wife Sonali Deore. Sunanda is the mother of informant
PW7 Manoj and she used to reside at Nasik. Parents of
Sonali Deore are staying at Sakri in Dhule District. On
20.4.2009, there was marriage of Kamlesh – brother of
Sonali at Sakri. Sonali alongwith her minor daughter –
alleged victim of sexual offence, went to the house of
Prakash Wankhede (Applicant/accused) on 15.4.2009 for
attending marriage ceremony. They stayed at the house of
the applicant/accused till 3.5.2009. According to the
prosecution case, during this period, the
applicant/accused who is maternal grandfather of the
minor victim girl, used to take her in his room and make
her sleep with him. According to prosecution case, the
applicant/accused used to remove her clothes, insert his
finger in her vagina, used to apply his semen on her
private part and used to smell her genitals. It is also
the case of the prosecution that the applicant/accused
used to commit rape on the minor victim girl during her
stay at his house at Sakri, District Dhule and he used to
threaten her that she would be killed by hanging to the
fan, if the incident is disclosed to anybody. Because of
sexual abuse and threats given by applicant/accused, the
minor victim girl, as per the prosecution case, has
suffered tremendous mental and psychological trauma and
did not disclose her ordeal to anybody. Ultimately, she
accompanied by her mother Sonali, went to Nasik at
parental house of PW7 Manoj Deore, where, Sunanda used
to reside. It is the case of the prosecution that on
return from Sakri, the minor victim girl after taking a
long time ultimately, disclosed the incident in question
to her maternal grandmother Sunanda Deore on or about
6.6.2009. Then, Sunanda disclosed the same to her son
PW7 Manoj, who, immediately rushed to Nasik on 7.6.2009.
Thereafter, accompanied by her maternal grandmother
Sunanda, the minor victim girl returned to her house at
Bandra on 11.6.2009. She was under psychological and
emotional trauma and ultimately, after much efforts, she
disclosed the incident to her father PW7Manoj on
20.6.2009. Thereafter, according to prosecution case,
the minor victim girl was taken to the Psychiatrist as
well as Doctors. Her mother, Sonali who had returned
to her parental house at Sakri from Nasik immediately
after 3.5.2009; has thereafter returned to her
matrimonial house at Bandra on 22.7.2009. According to
the prosecution case, as reflected from statement under
Section 161 of Cr.P.C. of Sonali Manoj Deore, she was
not in company of the minor victim girl from 3.5.2009 to
22.7.2009 as said minor victim girl was left at the house
of Sunanda Deore paternal grandmother at Nasik.
16] Keeping in mind these facts borne from the
statement of Sunanda Suresh Deore and Sonali Manoj Deore
recorded u/s 161 of the Cr.P.C. coupled with evidence of
PW 7 Manoj Suresh Deore, let us examine whether at this
stage, recording of additional evidence of Sunanda Suresh
Deore, Sonali Manoj Deore as well as subjecting minor
victim girl to further crossexamination is necessary.
The prosecution in all examined 12 witnesses in order to
establish the guilt of the applicantaccused. The
prosecution witnesses and the purpose of examining them
can be summarized thus :
Sr.
No
Witness Purpose of
examination
1 PW1 Dr.Chetan Ashok Pawar,
Lecturer in SBH Government
Medical College, Dhule.
Both these witnesses
i.e. PW1 & PW2
examined the minor
victim girl on
26.8.2009, heard
history of sexual
assault from her,
examined her
medically and found
her hymen ruptured.
They issued medico
legal certificate.
2 PW2 Dr.Ajay Gajanan Pathak,
Associate Professor, Forensic
Science, SBH Government
Medical College, Dhule.
3 PW3 – Dr.Suhas Sadashiv Sonawane,
Medical Officer, Rural Hospital,
Sakri.
He examined the
applicantaccused on
3.9.2009, found him
fit for sexual
intercourse and
collected his semen.
4 PW4 – Dr.Manoj Laxman
Bhatawadekar, M.D., Consulting
Psychiatrist, Mumbai
On 29.6.2009, this
witness interviewed
Pooja. She narrated
the incident happened
during her stay at
Sakri. This witness
referred the minor
victim to Dr.Meenal
Sule, Clinical
Psychologist.
5 PW5 – Dr.Meenal Anil Sule,
Clinical Psychiatrist, Mumbai
This witness examined
the minor victim girl
on 29.6.2009,
conducted test and
heard the narrations
of the minor victim
girl about the
incident.
6 PW6 – Dr.Purnima Kakotkar,
Professor, GS Medical College and
Wadia Hospital, Mumbai.
In August, 2009, this
witness examined the
minor victim girl and
recorded the history
narrated by her. She
issued medico legal
certificate (Exh.61)
stating old
penetrative injury to
hymen of the minor
victim girl.
7 PW7 – Manoj Suresh Deore Father He is informant –
father, who lodged
FIR (Exh.67)
8 PW8 – Dr.Anshu Kulkarni,
Consulting Psychiatrist, Mumbai.
This witness examined
the minor victim girl
on 31.7.2009 and
proved note of
examination recorded
by her.
9 PW9 – Jayendra Rajaram Kumbhar, Investigating officer
PSI who recorded the
statement of the
minor victim girl and
her father PW 7
Manoj.
10 PW10 – minor victim girl, aged 6
years.
Her evidence came to
be recorded after
ascertaining her
competency to depose
by the learned
Additional Sessions
Judge.
11 PW11 – Seema Surendrapalsing
Parihar, PSI, Counseling Wing of
CID, Mumbai.
The minor victim girl
was taken to her on
20.7.2009 by her
father and
grandmother Sunanda.
This witness heard
the narrations of
minor victim girl
about the incident.
On 29.7.2009, Sonali
Deore, PW 7 Manoj and
minor victim girl
again went to this
witness.
12 PW12 – Suresh Malwal, PSI / IO,
Sakri Police Station.
He investigated the
crime in question.
17] Record of the trial court shows that during the
course of recording of evidence of prosecution, the
learned Special Public Prosecutor passed a Pursis
(Exh.75) on 2.1.2012 giving up prosecution witness Sonali
Manoj Deore by stating that she may not support the
prosecution case and she is residing with applicant –
accused. Thereafter, on 30.1.2012, the learned Special
Public Prosecutor passed a Pursis (Exh.82) giving up
prosecution witness Sunanda Suresh Deore by stating that
she is not being examined as her evidence is repetition
of the facts disclosed by other witnesses. It is thus
clear that to the knowledge of the applicant / accused
and the learned defence counsel, the learned Special
Public Prosecutor has given up Sunanda Suresh Deore and
Sonali Manoj Deore, who were cited as prosecution
witnesses.
18] Scrutiny of evidence of prosecution thus makes
it clear that minor victim has disclosed the alleged
incident of sexual assault on her to her father as well
as to the several witnesses examined by the prosecution
including medical witnesses and the Police Officer.
Narrating of the incident by the minor girl PW10 to
PW4 Dr. Manoj Bhatwadekar and PW5 Meenal Sule was on
29.6.2009 i.e. much before returning of her mother Sonali
to her matrimonial home at Bandra on 22.7.2009.
According to Shri Dhorde, the learned counsel for the
applicant, Sonali Deore and Sunanda Deore are material
witnesses. As discussed in foregoing paragraph, Police
statement of Sonali Deore – mother shows that the minor
victim has not disclosed the alleged incident to her at
any point of time. In fact, her Police statements make
it clear that she was not with the minor victim from
3.5.2009 to 22.7.2009. The defence can very well point
out that evidence of PW10 minor victim girl cannot be
relied upon for want of corroboration due to nonexamination
of her mother Sonali. No doubt, the alleged
incident was disclosed by minor victim to her paternal
grandmother Sunanda Deore on 6.6.2009 who in turn
disclosed the same to her son PW7 Manoj Deore on
7.6.2009. Even if the prosecution has decided to examine
Sunanda Suresh Deore, then her evidence would have been
material just in order to prove former statement of the
minor victim as per the provision of Section 157 of the
Indian Evidence Act, which reads thus:
“157. Former statements of witness may be proved
to corroborate later testimony as to same fact :
In order to corroborate the testimony of a
witness, any former statement made by such
witness relating to the same fact, at or about
the time when the fact took place, or before any
authority legally competent to investigate the
fact, may be proved.”
Such evidence would have been relevant in order to
corroborate the testimony of minor victim. We have seen
from record that several witnesses have already been
examined by the prosecution in order to prove her former
statement. What weight is required to be given to their
evidence is totally different aspect and the same cannot
be decided at this stage. Exercising his discretion, the
learned Special Public Prosecutor has passed a Pursis
(Exh.82) to the effect that he does not wish to examine
Sunanda Suresh Deore in order to avoid repetition of
evidence. In similar way, the learned Special Public
Prosecutor has found that as Sonali Deore is not going to
support the prosecution case. Therefore, he has given up
the said witness. At this juncture, it needs to be kept
in mind that for proof of a fact, no particular number of
witnesses is required. What matters is the quality and
not the quantity. Section 134 of the Indian Evidence
Act, 1872 is explicitly clear and enunciates time
honoured rule of appreciation of evidence that evidence
is required to be weighed and not counted.
19] After closure of evidence of prosecution, record
shows that the learned Additional Sessions Judge has
asked the accused to enter upon defence by strictly
complying the provisions of Section 233 of the Code of
Criminal Procedure, 1973. The applicant/accused was
specifically asked while recording his statement u/s 313
of the Code of Criminal Procedure, 1973 as to whether he
wants to adduce his evidence on oath or whether he
desires to adduce evidence in his defence. The
applicantaccused has declined to enter in defence and
has chosen not to avail this opportunity by examining any
defence witnesses. Thus, the applicant accused had been
given a fair opportunity to enter upon defence, but he
has chosen not to avail the same. As such, by no stretch
of imagination it can be said that fair trial was denied
to the applicant/accused who was being defended by the
learned defence counsel of his choice. Provisions of
Section 391 of the Code of Criminal Procedure as such
cannot be invoked as a disguise for a retrial in such a
case after not availing an opportunity to enter upon
defence as seen from the verdict of the Hon'ble Apex
Court in the matter of Rambhau & another V/s State of
Maharashtra reported at (2001) 4 SCC 759.
20] So far as the contention of the applicant
reflected in paragraph no.5 of the application to the
effect that he could not give proper instructions to his
Advocate as he was in jail during trial is concerned; the
same is noted for rejection. It is contended by the
applicant – accused that he used to instruct the defence
counsel when he used to be brought in the Court from
jail. This plea is totally incorrect. It is seen from
the record that the applicant – accused was released on
bail on 8.12.2009 and he was on bail throughout the
trial. Operative part of the judgment and order dated
18.2.2012 of the learned Additional Sessions Judge shows
that the applicant – accused was in custody only from
15.11.2009 to 9.12.2009. Thereafter, due to his release
on bail, he was not an undertrial prisoner. As such
he cannot be heard to say that because he was in jail, he
could not impart proper instructions to the learned
defence counsel. The trial continued thereafter for more
than two years. The appellant/accused was having every
opportunity to instruct his counsel during this period.
There was ample time for the defence to deal with each
and every aspect of the prosecution and infact the
defence availed that opportunity by thoroughly crossexamining
each and every prosecution witness to discredit
them. Similarly, contention of the applicant – accused
that the learned trial Court has conducted the trial in a
mechanical manner and he could not get opportunity of
fair trial is not finding support from the record of the
trial Court. On going through the record of the learned
trial Court, we have seen that the learned trial Court
has taken all precaution and has shown sensitivity while
conducting the trial. Even the evidence of minor victim
PW 10 came to be recorded after examining her competency
to testify in terms of provisions of Section 118 of the
Indian Evidence Act by putting her some preliminary
questions in order to understand whether she is in a
position to give rational answers to those questions
because of her tender age. The applicant – accused was
given every opportunity in terms of mandatory provisions
of Section 233 of the Code of Criminal Procedure for
adducing defence evidence. As such it cannot be said
that the learned trial Judge was a mute spectator during
the ongoing trial. It is seen that the learned trial
Court has kept a balance and has not unduly trespassed
upon function of either the learned Special Public
Prosecutor or the learned defence counsel.
21] Shri Dhorde, learned Senior counsel has rightly
pointed out that married life of PW7 – Manoj is facing
rough weather. This fact is also revealed from crossexamination
of PW7 Manoj. He was facing maintenance
proceeding filed by Sonali , so also, the proceeding
under Protection of Women from Domestic Violence Act,
2005. P.W.7 – Manoj was facing criminal complaint lodged
by Sonali in the court of J.M.F.C., Sakri. However, no
overbearing importance can be given to this aspect as at
the relevant period, the couple was residing together.
As seen from evidence of PW7 – Manoj, his wife and minor
daughter went to Sakri from his house and both of them
returned to him albeit at different time. Bikering in
married life of PW7 Manoj could have been brought on
record by examining his wife Sonali but evidence of PW7
Manoj is already there on record to establish this fact.
22] The averment that some important questions were
remained to be asked to the minor victim also leads us
nowhere. In fact, the minor prosecutrix as well as all
prosecution witnesses were thoroughly crossexamined by
the learned defence counsel, as seen from the record. It
is not pointed out as to on what point further crossexamination
of the minor victim is necessary.
23] Examining the contentions raised by the
applicant/accused from all angles, we are of the
considered opinion that the applicant/accused has not
made out any exceptional case warranting recording of
additional evidence so as to meet the ends of justice.
At this stage, it cannot be said that with available
ocular and documentary evidence on record, it is
impossible to pronounce judgment. Having gone through the
entire record of Sessions Case NO.160/2010 and after
giving anxious consideration to the contentions of the
applicantaccused, at this stage we do not find that
there is any need to record any additional evidence in
order to come to a correct and proper finding and,
therefore, the action u/s 391 of the Code of Criminal
Procedure is not warranted. We make it clear that delay
in lodging the instant application did not weigh in our
mind for rejecting the same.
24] In the result, instant criminal application is
rejected.
(A.M. BADAR, J.) (S.S. SHINDE, J.)
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summarized 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 Cr.P.C. cannot be pressed into
service in order to fill up lacunae in the prosecution case.”
10] It is thus clear that the provisions of Section
391 cannot be invoked when the party concerned has fair
opportunity and has not availed of it. Such provision is
to be used in exceptional circumstances in order to
arrive at just conclusion to meet the ends of justice.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINIAL APPLICATION NO.4735/2012
IN CRIMINAL APPEAL NO.117/2012
Prakash @ Jaywant Vasudeo Wankhede,
V
The State of Maharashtra.
CORAM: S.S. SHINDE &
A.M. BADAR, JJ.
Dated : 13.01.2015
Citation: 2016 ALLMR(CRI)4564
1] This is an application by appellant/accused
under Section 391 of the Code of Criminal Procedure, 1973
(Cr.P.C. for the sake of brevity) for recording of
additional evidence of Sonali Manoj Deore mother of the
minor girl – an alleged victim of sexual abuse and
Sunanda Suresh Deore paternal grandmother of alleged
victim as well as for further crossexamination of PW10
the alleged minor victim of sexual abuse. The
applicant/accused is father of Sonali Deore and
grandfather of the minor girl alleged to be victim of
sexual abuse by him. Keeping in mind social object of
preventing social victimization of the victim and the
object of Section 228A of the Indian Penal Code, 1860,
we consider it appropriate not to give name of the
victim. Rather we intend to describe her as minor victim
girl. At the request of the learned counsel for the
applicant/accused, the application is taken up for
hearing prior to final hearing of the appeal.
2] The FIR lodged on 25.8.2009 by PW7 Major Suresh
Deore – son in law, has resulted in prosecution of the
applicant/accused for the offences punishable under
Sections 376, 376 read with Section 511 and 506 of Indian
Penal Code 1860(IPC for the sake of brevity) vide
Sessions Case No. 160 of 2010. After trial, the learned
Additional Sessions Judge, Dhule, by impugned judgment
and order dated 18.2.2012 has been pleased to convict the
applicant/accused of the offences punishable under
Sections 376 r/w. 511 and 506 of the IPC. The
applicant/accused came to be acquitted of the offence
punishable under Section 376 of the IPC.
3] Shri Dhorde, learned Senior Counsel appearing
for the applicant/accused, after pointing out the
relevant dates coming on record from the evidence of
informant – PW7 – Manoj Deore, contended that the minor
victim girl was having tons of opportunity to disclose
the incident to her own mother – Sonali Deore. He
further argued that the mother is most natural witness
in such case and as the alleged victim girl stayed with
her grandmother – Sunanda Deore, evidence of said Sunanda
ought to have been recorded by the learned trial court.
According to the learned Senior Counsel, the
Investigating Officer has recorded statement of both
these witnesses under Section 161 of the Cr.P.C.
However, the prosecution has failed to examine these
witnesses and thereby, prejudice is caused to the
applicant/accused. According to the learned Senior
Counsel, there used to be constant quarrels between
informant Manoj and his wife Sonali and because of this
matrimonial discord, the applicant/accused is roped in a
false case after procuring the medical evidence. The
applicant/accused is deprived of fair trial due to nonexamination
of these material witnesses by the
prosecution. Placing his reliance on Sudevanand Vs.
State through CBI reported in (2012) 3 SCC 387, Shri
Dhorde, learned senior counsel submitted that delay in
filing an application under Section 391 of Cr.P.C. does
not come in way of entertaining the same.
4] Per contra, the learned APP as well as Shri
Deshmukh, the learned counsel appearing for the alleged
minor victim of sexual abuse contended that there is no
necessity to record additional evidence and the averments
made in the application are totally incorrect.
5] The averments made in the instant application
are to the effect that the applicant/accused was in jail
during trial and, therefore, he could not impart proper
instructions to the Advocate, who defended him in the
trial. The applicant/accused was unaware of his right and
there was much less time with him to instruct the
learned defence counsel. It is further averred in the
application that whenever the applicant/accused used to
be produced from jail before the Sessions Court, he used
to give instructions. It is further averred that due to
oversight or inadvertence, the learned defence counsel
has not taken any steps to call Sonali and Sunanda Deore
as defence witnesses before the learned trial court.
Their evidence is important to arrive at just decision of
the present case, as PW1 the minor victim girl has
disclosed that she has narrated the incident to her
mother Sonali and grandmother Sunanda. According to the
applicant/accused, some important questions remain to be
asked to the minor girl alleged to be the victim of
sexual abuse.
6] At this stage, it needs to be kept in mind that
the law regarding appreciation of evidence in cases of
sexual offences and particularly in respect of minor girl
is set out by catena of judgments of the Honourable
Supreme Court. It is well settled that the Court should
examine broader probabilities of the case and not get
swayed by minor contractions or insignificant
discrepancies in evidence of witnesses. It is well
settled that if evidence of prosecutrix inspires
confidence then it can be relied upon without seeking
further corroboration to her statement and if for some
reason the court finds it difficult to place implicit
reliance on such testimony of the prosecutrix, it may
look at other evidence. The very nature of offence in
such cases, makes it difficult to get direct
corroborative evidence. The victim of sexual offence is
at a higher pedestal than the injured witnesses because
she is subjected to physical, psychological as well as
emotional injury. Such offence is a crime against the
entire society and it violates the victim's most
cherished fundamental right i.e. right to life contained
in Article 21 of the Constitution of India, 1950. As
such, it needs to be kept in mind that the trial court is
required to be alive to its responsibility and has to be
sensitive while dealing with the cases involving sexual
molestation and, particularly, that of a minor girl. We
have noted these principles and parameters as one of the
contentions is that the accused did not get fair trial.
7] We have set out these principles for assessing
the evidence in the cases of sexual offences particularly
against minor girls also because Section 391 of the
Cr.P.C. which is sought to be invoked by the
applicant/accused mandates that the additional evidence
can be recorded only if the appellate court thinks it to
be necessary to have the same for arriving at just
conclusion. Necessity to record such additional evidence
is dependent upon fact situation of each matter having
due regard to the concept of fair play and justice as
well as wellbeing of the society. No straightjacket
formula can be evolved for the same.
8] At this juncture, it is apposite to reproduce
Section 391 of the Cr.P.C. for better understanding of
the matter. It reads thus :
“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.”
9] Scope and ambit of provisions of Section 391 of
Cr.P.C. is aptly elaborated by the Honourable Apex Court
in the matter of “ Ashok Tshering Bhutia Vs. State of
Sikkim” (2011) 4 SCC 402, which is relied upon by both
the parties. Ratio of the said ruling can be found in
para Nos. 28 to 32 of the said judgment and they read
thus :
“28. Additional evidence at the appellate stage is
permissible, in case of a failure of justice. However, such power
must 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 Pasad 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).]
30. This court in State of Gujarat v. Mohanlal Jitamalji
Porwal dealing with the issue held as under : (SCC pp. 370-71,
para 5)
“5... 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 the movement
upon passions being arouses. 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, a larger Bench of this Court held as under.
(SCC 762, para 4)
“4. Incidentally, Section 391 forms an exception to the
general rule that an appeal must be decided on the evidence
which was before the trial court and the Powers being an
exception shall always have to be exercised with caution and
circumspection so as to meet the ends of justice. Be it
noted further that the doctrine of finality of judicial
proceedings does not stand annulled or affected in any way
by reason of exercise of power under Section 391 since the
same avoids a de novo trial. It is not to fill up the lacuna
but to 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.”
32. In view of the above, the law on the point can be
summarized 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 Cr.P.C. cannot be pressed into
service in order to fill up lacunae in the prosecution case.”
10] It is thus clear that the provisions of Section
391 cannot be invoked when the party concerned has fair
opportunity and has not availed of it. Such provision is
to be used in exceptional circumstances in order to
arrive at just conclusion to meet the ends of justice.
11] Shri Dhorde, learned Senior counsel has drawn
our attention to the ruling in the matter of “Zahira
Habibulla H. Sheikh and another Vs. State of Gujarat and
others” reported in AIR 2004 SC 3114, wherein, it is
held by the Honourable Apex Court that denial of fair
trial is as much injustice to the accused as is to the
victim of the society. It is further held that fair trial
obviously would mean trial before an impartial judge, a
fair prosecution and atmosphere of judicial calm. Fair
trial means a trial in which bias or prejudice for or
against the accuses, witnesses or the cause which is
being tried is eliminated. It is further held therein
that in such matters failure to hear material witnesses
is certainly denial of fair trial.
12] The Honourable Apex Court in the matter of
Zahira (supra) had an occasion to consider provisions of
Section 391 of the Cr.P.C. and it is held therein that
the legislative intent in enacting Section 391 of Cr.P.C.
appears to be empowerment of the appellate court to see
that justice is done between the prosecution and the
person 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.
13] It is thus clear that the provisions of Section
391 of Cr.P.C. are meant for subserving the ends of
justice and can be called in aid if the appellate court
finds that recording of additional evidence is essential
in order to secure the ends of justice by recording
accurate finding. Same is the ratio of ruling in the
matter of State of Maharashtra Vs. Vasant Shankar Masne
and another (1993) Cr.L.J. 1134, relied upon by Shri
Dhorde, the learned Senior Counsel.
14] Keeping in view these guiding principles of law,
let us examine the case in hand in order to ascertain
whether recording of additional evidence of Sunanda and
Sonali Deore as well as subjecting the minor victim girl
for further crossexamination is necessary to arrive at
just conclusion in the case in hand.
15] It is the case of the prosecution that the minor
victim of the alleged offence is a girl aged about 6
years. She is daughter of informant PW7 Manoj Deore, a
Clerk in the office of Court of Metropolitan Magistrate
residing in Government Quarter at Bandra alongwith his
wife Sonali Deore. Sunanda is the mother of informant
PW7 Manoj and she used to reside at Nasik. Parents of
Sonali Deore are staying at Sakri in Dhule District. On
20.4.2009, there was marriage of Kamlesh – brother of
Sonali at Sakri. Sonali alongwith her minor daughter –
alleged victim of sexual offence, went to the house of
Prakash Wankhede (Applicant/accused) on 15.4.2009 for
attending marriage ceremony. They stayed at the house of
the applicant/accused till 3.5.2009. According to the
prosecution case, during this period, the
applicant/accused who is maternal grandfather of the
minor victim girl, used to take her in his room and make
her sleep with him. According to prosecution case, the
applicant/accused used to remove her clothes, insert his
finger in her vagina, used to apply his semen on her
private part and used to smell her genitals. It is also
the case of the prosecution that the applicant/accused
used to commit rape on the minor victim girl during her
stay at his house at Sakri, District Dhule and he used to
threaten her that she would be killed by hanging to the
fan, if the incident is disclosed to anybody. Because of
sexual abuse and threats given by applicant/accused, the
minor victim girl, as per the prosecution case, has
suffered tremendous mental and psychological trauma and
did not disclose her ordeal to anybody. Ultimately, she
accompanied by her mother Sonali, went to Nasik at
parental house of PW7 Manoj Deore, where, Sunanda used
to reside. It is the case of the prosecution that on
return from Sakri, the minor victim girl after taking a
long time ultimately, disclosed the incident in question
to her maternal grandmother Sunanda Deore on or about
6.6.2009. Then, Sunanda disclosed the same to her son
PW7 Manoj, who, immediately rushed to Nasik on 7.6.2009.
Thereafter, accompanied by her maternal grandmother
Sunanda, the minor victim girl returned to her house at
Bandra on 11.6.2009. She was under psychological and
emotional trauma and ultimately, after much efforts, she
disclosed the incident to her father PW7Manoj on
20.6.2009. Thereafter, according to prosecution case,
the minor victim girl was taken to the Psychiatrist as
well as Doctors. Her mother, Sonali who had returned
to her parental house at Sakri from Nasik immediately
after 3.5.2009; has thereafter returned to her
matrimonial house at Bandra on 22.7.2009. According to
the prosecution case, as reflected from statement under
Section 161 of Cr.P.C. of Sonali Manoj Deore, she was
not in company of the minor victim girl from 3.5.2009 to
22.7.2009 as said minor victim girl was left at the house
of Sunanda Deore paternal grandmother at Nasik.
16] Keeping in mind these facts borne from the
statement of Sunanda Suresh Deore and Sonali Manoj Deore
recorded u/s 161 of the Cr.P.C. coupled with evidence of
PW 7 Manoj Suresh Deore, let us examine whether at this
stage, recording of additional evidence of Sunanda Suresh
Deore, Sonali Manoj Deore as well as subjecting minor
victim girl to further crossexamination is necessary.
The prosecution in all examined 12 witnesses in order to
establish the guilt of the applicantaccused. The
prosecution witnesses and the purpose of examining them
can be summarized thus :
Sr.
No
Witness Purpose of
examination
1 PW1 Dr.Chetan Ashok Pawar,
Lecturer in SBH Government
Medical College, Dhule.
Both these witnesses
i.e. PW1 & PW2
examined the minor
victim girl on
26.8.2009, heard
history of sexual
assault from her,
examined her
medically and found
her hymen ruptured.
They issued medico
legal certificate.
2 PW2 Dr.Ajay Gajanan Pathak,
Associate Professor, Forensic
Science, SBH Government
Medical College, Dhule.
3 PW3 – Dr.Suhas Sadashiv Sonawane,
Medical Officer, Rural Hospital,
Sakri.
He examined the
applicantaccused on
3.9.2009, found him
fit for sexual
intercourse and
collected his semen.
4 PW4 – Dr.Manoj Laxman
Bhatawadekar, M.D., Consulting
Psychiatrist, Mumbai
On 29.6.2009, this
witness interviewed
Pooja. She narrated
the incident happened
during her stay at
Sakri. This witness
referred the minor
victim to Dr.Meenal
Sule, Clinical
Psychologist.
5 PW5 – Dr.Meenal Anil Sule,
Clinical Psychiatrist, Mumbai
This witness examined
the minor victim girl
on 29.6.2009,
conducted test and
heard the narrations
of the minor victim
girl about the
incident.
6 PW6 – Dr.Purnima Kakotkar,
Professor, GS Medical College and
Wadia Hospital, Mumbai.
In August, 2009, this
witness examined the
minor victim girl and
recorded the history
narrated by her. She
issued medico legal
certificate (Exh.61)
stating old
penetrative injury to
hymen of the minor
victim girl.
7 PW7 – Manoj Suresh Deore Father He is informant –
father, who lodged
FIR (Exh.67)
8 PW8 – Dr.Anshu Kulkarni,
Consulting Psychiatrist, Mumbai.
This witness examined
the minor victim girl
on 31.7.2009 and
proved note of
examination recorded
by her.
9 PW9 – Jayendra Rajaram Kumbhar, Investigating officer
PSI who recorded the
statement of the
minor victim girl and
her father PW 7
Manoj.
10 PW10 – minor victim girl, aged 6
years.
Her evidence came to
be recorded after
ascertaining her
competency to depose
by the learned
Additional Sessions
Judge.
11 PW11 – Seema Surendrapalsing
Parihar, PSI, Counseling Wing of
CID, Mumbai.
The minor victim girl
was taken to her on
20.7.2009 by her
father and
grandmother Sunanda.
This witness heard
the narrations of
minor victim girl
about the incident.
On 29.7.2009, Sonali
Deore, PW 7 Manoj and
minor victim girl
again went to this
witness.
12 PW12 – Suresh Malwal, PSI / IO,
Sakri Police Station.
He investigated the
crime in question.
17] Record of the trial court shows that during the
course of recording of evidence of prosecution, the
learned Special Public Prosecutor passed a Pursis
(Exh.75) on 2.1.2012 giving up prosecution witness Sonali
Manoj Deore by stating that she may not support the
prosecution case and she is residing with applicant –
accused. Thereafter, on 30.1.2012, the learned Special
Public Prosecutor passed a Pursis (Exh.82) giving up
prosecution witness Sunanda Suresh Deore by stating that
she is not being examined as her evidence is repetition
of the facts disclosed by other witnesses. It is thus
clear that to the knowledge of the applicant / accused
and the learned defence counsel, the learned Special
Public Prosecutor has given up Sunanda Suresh Deore and
Sonali Manoj Deore, who were cited as prosecution
witnesses.
18] Scrutiny of evidence of prosecution thus makes
it clear that minor victim has disclosed the alleged
incident of sexual assault on her to her father as well
as to the several witnesses examined by the prosecution
including medical witnesses and the Police Officer.
Narrating of the incident by the minor girl PW10 to
PW4 Dr. Manoj Bhatwadekar and PW5 Meenal Sule was on
29.6.2009 i.e. much before returning of her mother Sonali
to her matrimonial home at Bandra on 22.7.2009.
According to Shri Dhorde, the learned counsel for the
applicant, Sonali Deore and Sunanda Deore are material
witnesses. As discussed in foregoing paragraph, Police
statement of Sonali Deore – mother shows that the minor
victim has not disclosed the alleged incident to her at
any point of time. In fact, her Police statements make
it clear that she was not with the minor victim from
3.5.2009 to 22.7.2009. The defence can very well point
out that evidence of PW10 minor victim girl cannot be
relied upon for want of corroboration due to nonexamination
of her mother Sonali. No doubt, the alleged
incident was disclosed by minor victim to her paternal
grandmother Sunanda Deore on 6.6.2009 who in turn
disclosed the same to her son PW7 Manoj Deore on
7.6.2009. Even if the prosecution has decided to examine
Sunanda Suresh Deore, then her evidence would have been
material just in order to prove former statement of the
minor victim as per the provision of Section 157 of the
Indian Evidence Act, which reads thus:
“157. Former statements of witness may be proved
to corroborate later testimony as to same fact :
In order to corroborate the testimony of a
witness, any former statement made by such
witness relating to the same fact, at or about
the time when the fact took place, or before any
authority legally competent to investigate the
fact, may be proved.”
Such evidence would have been relevant in order to
corroborate the testimony of minor victim. We have seen
from record that several witnesses have already been
examined by the prosecution in order to prove her former
statement. What weight is required to be given to their
evidence is totally different aspect and the same cannot
be decided at this stage. Exercising his discretion, the
learned Special Public Prosecutor has passed a Pursis
(Exh.82) to the effect that he does not wish to examine
Sunanda Suresh Deore in order to avoid repetition of
evidence. In similar way, the learned Special Public
Prosecutor has found that as Sonali Deore is not going to
support the prosecution case. Therefore, he has given up
the said witness. At this juncture, it needs to be kept
in mind that for proof of a fact, no particular number of
witnesses is required. What matters is the quality and
not the quantity. Section 134 of the Indian Evidence
Act, 1872 is explicitly clear and enunciates time
honoured rule of appreciation of evidence that evidence
is required to be weighed and not counted.
19] After closure of evidence of prosecution, record
shows that the learned Additional Sessions Judge has
asked the accused to enter upon defence by strictly
complying the provisions of Section 233 of the Code of
Criminal Procedure, 1973. The applicant/accused was
specifically asked while recording his statement u/s 313
of the Code of Criminal Procedure, 1973 as to whether he
wants to adduce his evidence on oath or whether he
desires to adduce evidence in his defence. The
applicantaccused has declined to enter in defence and
has chosen not to avail this opportunity by examining any
defence witnesses. Thus, the applicant accused had been
given a fair opportunity to enter upon defence, but he
has chosen not to avail the same. As such, by no stretch
of imagination it can be said that fair trial was denied
to the applicant/accused who was being defended by the
learned defence counsel of his choice. Provisions of
Section 391 of the Code of Criminal Procedure as such
cannot be invoked as a disguise for a retrial in such a
case after not availing an opportunity to enter upon
defence as seen from the verdict of the Hon'ble Apex
Court in the matter of Rambhau & another V/s State of
Maharashtra reported at (2001) 4 SCC 759.
20] So far as the contention of the applicant
reflected in paragraph no.5 of the application to the
effect that he could not give proper instructions to his
Advocate as he was in jail during trial is concerned; the
same is noted for rejection. It is contended by the
applicant – accused that he used to instruct the defence
counsel when he used to be brought in the Court from
jail. This plea is totally incorrect. It is seen from
the record that the applicant – accused was released on
bail on 8.12.2009 and he was on bail throughout the
trial. Operative part of the judgment and order dated
18.2.2012 of the learned Additional Sessions Judge shows
that the applicant – accused was in custody only from
15.11.2009 to 9.12.2009. Thereafter, due to his release
on bail, he was not an undertrial prisoner. As such
he cannot be heard to say that because he was in jail, he
could not impart proper instructions to the learned
defence counsel. The trial continued thereafter for more
than two years. The appellant/accused was having every
opportunity to instruct his counsel during this period.
There was ample time for the defence to deal with each
and every aspect of the prosecution and infact the
defence availed that opportunity by thoroughly crossexamining
each and every prosecution witness to discredit
them. Similarly, contention of the applicant – accused
that the learned trial Court has conducted the trial in a
mechanical manner and he could not get opportunity of
fair trial is not finding support from the record of the
trial Court. On going through the record of the learned
trial Court, we have seen that the learned trial Court
has taken all precaution and has shown sensitivity while
conducting the trial. Even the evidence of minor victim
PW 10 came to be recorded after examining her competency
to testify in terms of provisions of Section 118 of the
Indian Evidence Act by putting her some preliminary
questions in order to understand whether she is in a
position to give rational answers to those questions
because of her tender age. The applicant – accused was
given every opportunity in terms of mandatory provisions
of Section 233 of the Code of Criminal Procedure for
adducing defence evidence. As such it cannot be said
that the learned trial Judge was a mute spectator during
the ongoing trial. It is seen that the learned trial
Court has kept a balance and has not unduly trespassed
upon function of either the learned Special Public
Prosecutor or the learned defence counsel.
21] Shri Dhorde, learned Senior counsel has rightly
pointed out that married life of PW7 – Manoj is facing
rough weather. This fact is also revealed from crossexamination
of PW7 Manoj. He was facing maintenance
proceeding filed by Sonali , so also, the proceeding
under Protection of Women from Domestic Violence Act,
2005. P.W.7 – Manoj was facing criminal complaint lodged
by Sonali in the court of J.M.F.C., Sakri. However, no
overbearing importance can be given to this aspect as at
the relevant period, the couple was residing together.
As seen from evidence of PW7 – Manoj, his wife and minor
daughter went to Sakri from his house and both of them
returned to him albeit at different time. Bikering in
married life of PW7 Manoj could have been brought on
record by examining his wife Sonali but evidence of PW7
Manoj is already there on record to establish this fact.
22] The averment that some important questions were
remained to be asked to the minor victim also leads us
nowhere. In fact, the minor prosecutrix as well as all
prosecution witnesses were thoroughly crossexamined by
the learned defence counsel, as seen from the record. It
is not pointed out as to on what point further crossexamination
of the minor victim is necessary.
23] Examining the contentions raised by the
applicant/accused from all angles, we are of the
considered opinion that the applicant/accused has not
made out any exceptional case warranting recording of
additional evidence so as to meet the ends of justice.
At this stage, it cannot be said that with available
ocular and documentary evidence on record, it is
impossible to pronounce judgment. Having gone through the
entire record of Sessions Case NO.160/2010 and after
giving anxious consideration to the contentions of the
applicantaccused, at this stage we do not find that
there is any need to record any additional evidence in
order to come to a correct and proper finding and,
therefore, the action u/s 391 of the Code of Criminal
Procedure is not warranted. We make it clear that delay
in lodging the instant application did not weigh in our
mind for rejecting the same.
24] In the result, instant criminal application is
rejected.
(A.M. BADAR, J.) (S.S. SHINDE, J.)
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