Even at the Stage of Hearing of an Appeal before a High Court, it is Possible that Additional Evidence is Permitted to be Led [CASE LAW]
Criminal
P.C. 1973 - S.391 - Appellate Court may take further evidence or direct it to be taken - Even at the stage of hearing of an appeal before a High Court, it is possible that additional evidence is permitted to be led.
The primary object of Section 391 Cr.P.C is to prevent the failure of justice that may outcome by 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 evidence essential to elucidation of truth. To prevent the Happening of a de novo trial,which may be prejudicial to the accused or prosecution, depending upon the facts and circumantances of each case. The power has to be exercised with great care, caution and circumspection to meet the ends of justice. The power not to be used for filling up the lacuna in the prosecution evidence, but to serve the ends of justice or to prevent the failure of justice, Only in exceptional and suitable cases, where the Court is satisfied that directing additional evidence would serve the ends of justice. If the Appellate Court finds that certain evidence is necessary in order to give a correct and proper finding, it would be justified in exercising this power. The ends of justice have to address as much the interests of the accused as that of the public prosecutor.
Hon'ble
Anil Kumar, J. & Hon'ble Mohd. Faiz Alam Khan, J.
Delivered
on 21.12.2018
CRIMINAL
APPEAL No. - 1293 of 2013
Shanker
@ Shiv Shanker Verma & Another v.
State of U.P.
Counsel
for Appellant :- Akhlaq
Ali,Ashok Kumar Singh,Bhanu Dutt Dwivedi,Lakshmana Singh,Monika Dwivedi,Rohit
Singh Parmar,S.Malik-E-Ashtar Rizvi,Sandhya Singh,Smt.Aradhana Shukla,Suhail Kashif
Counsel for Respondent :- Govt. Advocate
(Per;
Hon’ble Mohd. Faiz Alam Khan, J.)
1.
Heard learned counsel for the
appellants as well as Sri C.S. Pandey, learned A.G.A. for the State. The
present application has been moved on behalf of appellants under Section 391
Cr.P.C. to grant permission to file additional evidence (copy of statement of
informant of this case recorded in other criminal case Gangster Case No. 201 of
2010 State vs. Ram Sajivan Yadav) in the instant criminal appeal.
2.
Facts necessary for disposal of this
application are that Sri Laxmi Narain lodged an FIR on 05.02.2010 at 17.15 at
ps kothi District Barabanki stating that when on the same day around 3.00 pm he
was returning from Barabanki, and when he reached at Kotwa Mor , accused Guddu
@ Saroj, who was driving a Maruti Car bearing registration No. UP 41 A -9494,
other accused persons Ram Sajivan,Hanoman and shanker sitting inside, hit the
motorcycle on which deceased Jai Narain was sitting. When his brother fell down
accused Hanoman and Shanker caught hold the deceased, while accused Ram Sajivan
fired at his mouth from point blank range, causing his death instantly.
3.
Appellants Ram Sajiwan Yadav, Hanoman,
Shanker @ Shiv Shanker Verma and Guddu @ Saroj were tried by the trial Court for
the offences punishable under Section 302, 307, 504, 506 I.P.C and Section 7
Criminal Law Amendment Act in SessionsTrial No. 544 of 2010 (State of U.P. vs.
Ram Sajiwan Yadav & others) arising out of Case Crime No. 66 of 2010 Police
Station Kothi District Barabanki. Sri Laxmi Narain informant of this case was
testified as prosecution witness no.1 and also supported the prosecution
version of the incident.
4.
The trial Court vide judgment and order
dated 24.8.2013 convicted the appellants under Section 302/34 I.P.C. and sentenced
to undergo rigorous imprisonment for life with a further stipulation to pay
fine of Rs.20,000/- or to undergo one year imprisonment in default. They were
further convicted and sentenced to undergo rigorous imprisonment for seven
years along with fine of Rs.5000/- with regard to offence under Section 307/ 34
I.P.C., six months rigorous imprisonment for offence under Section 504 and two
years rigorous imprisonment to each of accused under Section 506 I.P.C.
Appellants were further convicted and sentenced to undergo rigorous imprisonment
for six months for the offence committed under Section 7 Criminal Law Amendment
Act. In addition Appellant Ram Sajiwan Yadav was also convicted under Section
3/25 of Indian Arms Act and sentenced to undergo rigorous imprisonment for two
years and fine of Rs.5000/- or to undergo simple imprisonment for five months in
default.
5.
Aggrieved by the aforesaid judgment and
order dated 24.8.2013 accused-appellants Shanker @ Shiv Shanker Verma and Guddu
@ Saroj preferred instant Criminal Appeal No. 1293 of 2013 which was admitted
for hearing vide order dated 19.9.2013.
6.
It is also worth mentioning that during
the pendency of this Appeal, bail applications were moved by Appellants and the
first bail application of appellant No.1/Shankar @ Shiv Shankar Verma has been
rejected vide order dated 08.07.2014 and the first, second and third bail
application of appellant No.2/Guddu @ Saroj has been rejected vide order dated
10.04.2014, 30.05.2014 and 06.02.2017.
7.
Thereafter Appellants moved instant
application under Section 391 Cr.P.C requesting to grant permission to file
additional evidence(copy of statement of Sri Laxmi Narain recorded inother
criminal case ) in the instant appeal. In the affidavit accompanying
application , it is stated that statement of the informant of instant case i.e.
Sri Laxmi Narain has been recorded before the Court of Special Judge Gangster
Act, Court No.4, Barabanki on 18.12.2017, in a Gangster Case No. 201 of 2010
,State vs. Ram Sajivan Yadav, which is a connected case of instant case wherein
he has stated that after the incident he had gone to police station by
motorcycle and met with the Sub- Inspector and told him about the murder of his
brother committed by some unknown persons. The said Sub-Inspector told him that
name of some inimical persons should be mentioned in application and only then
some action may be taken . Thereafter he mentioned the name of some inimical persons
of the village in the F.I.R.
8.
The Appellant on the basis of above
statement of Sri Laxmi Narain, recorded in other criminal case, moved an
application under section 391 of the Cr.P.C., to take a copy of this statement on
record as additional evidence.
9.
Learned counsel for the appellants
while pressing the application has overwhelmingly argued that the informant of
instant case, Sri Laxmi Narain, was examined in the instant Session Trial as PW-1,
wherein he supported the prosecution. His evidence was again recorded in
connected Gangster Case No. 201 of 2010 (State vs. Ram Sajivan Yadav) wherein
he has given evidence to the effect that he had implicated the
accused-appellants on the behest of a Sub-Inspector of police, who told him to
mention the names of some inimical persons in F.I.R. According to learned
counsel for the appellant, the evidence recorded in the connected Gangster Case
No. 201 of 2010 is a material piece of evidence, which shows that the witness
PW-1 Sri Laxmi Narain is not reliable and the whole prosecution story is
concocted and fabricated and, therefore, this material piece of evidence be
kept on record as additional evidence. Learned counsel for the appellant, in
support of his contention has relied on a judgment dated 4.8.2015 of the Madras
High Court passed in Crl.O.P.
No. 26698 of 2009 United Steels vs. Ponneri Steels Industries andalso on Zahira Habibullah Sheikh and
Another vs. State of Gujrat reported
in AIR 2004 SC 3114.
10.
Learned A.G.A. while opposing the
application submits that the application has been moved for the purpose of
causing delay in the disposal of criminal appeal, the accused-appellants has
never moved any application before the Court below for production of any
evidence nor has produced any evidence in their defence, so they are precluded
from filing any additional evidence at the appellate stage.
Learned
A.G.A. also submits that additional evidence at appellate stage cannot be filed
as a matter of routine and the same may only be permitted to be filed in the
rarest of rare cases, only when the Court finds that the evidence proposed to be
adduced is material for final and just disposal of the appeal and for doing
justice. According to him this power must be exercised with great care and
caution so that it may not operate in any manner prejudicial to the
prosecution. Sri Laxmi Narain, who is also the informant and eye witness of the
incident has been testified as P.W.-1 before the Court below, who in his evidence
has supported the version of the prosecution.It appears that after the
pronouncement of judgment in the present case he has been won over by the
Accused/appellants.
He
further submits that Gangster Case No. 201 of 2010 (State vs. Ram Sajivan
Yadav) arising out of Case Crime No. 366 of 2010 under Section 3(1) U.P.
Gangster Act PS Kothi District Barabanki is not in any way connected with the
facts of this case as the trial Court has decided this case on the basis of the
evidence adduced by the prosecution before the trial court, therefore, the
application moved by accused-appellants be rejected.
11.
Before dwelling into the facts of the
instant case it is desirable that legal position with regard to the
admissibility of additional evidence under Section 391 of the Cr.P.C. be looked
into. For this purpose we proposes to examine the scope and ambit of Section
391 of Cr.P.C. which reads as under:-
"391.
Appellate Court may take further evidence or direct it to be taken.
(1)
In dealing with any appeal under this Chapter, the Appellate Court, if it
thinks additional evidence to be necessary, shall record its reasons and may
either take such evidence itself, or direct it to be taken by a Magistrate, or
when the Appellate Court is a High Court, by a Court of 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."
12.
A plain reading of the above section
would indicate that even at the stage of hearing of an appeal before a High Court,
it is possible that additional evidence is permitted to be led. Hon’ble the
Apex Court in the case of Rajeshwar
Prasad Misra v. State of W. B., AIR 1965 SC 1887 has described the ambit and scope of
this section in the following words :-
“There
is, no doubt, some analogy between the power to order a retrial and the power
to take additional evidence. The former is an extreme step appropriately taken
if additional evidence will not suffice. Both actions subsume failure of
justice as a condition precedent. There the resemblance ends and it is hardly
proper to construe onesection with the aid of observations made by this Court
in the interpretation of the other section.
9. Additional evidence may be necessary
for a variety of reasons which it is hardly necessary (even if it was possible)
to list here. We do not propose 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 S. 428 were exercised. We were
cited a fair number at the hearing. Some of the decisions suffer from the sin
of generalisation 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.”
13.
However in Ashok Tshering Bhutia vs State Of
Sikkim (2011) 4 SCC 402 Apex
Court opines that :
"15.
... 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."
14.
It was further observed by the Supreme
Court in the above decision that it would depend on the facts and circumstances
of individual cases whether the permission should be granted "having due
regard to the concepts of fair play, justice and the well-being of the
society". According to the Supreme Court:
"15.
... Such an application for taking additional evidence must be decided objectively,
just to cure the irregularity. 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."
15.
Earlier in State Of Gujrat vs Mohan Lal
JitamalJi Porwal reported
in (1987) 2 SCC 387, the Supreme Court explained as under:
"...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 eye unmindful of the
damage done to the national economy and national interest....."
16.
In Ram Babu vs State Of Maharashtra reported in (2001) 4 SCC 759, the Supreme Court observed as under:
"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
391is thus akin to Order 41, Rule 27 of the C.P. Code."
17.
In Zahira Habibullah Sheikh vs Stae Of Gujrat (2004) 4 SCC
158 (relied on by learned counsel for
appellant) the Supreme Court explained in detail the rationale behind Section 391
Cr PC. It was held that Sections 386 and 391 "have to be harmoniously
considered to enable the appeal to be considered and disposed of in the light
of the additional evidence as well." The Court observed:
"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. The 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, specially 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 theprevention of 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 findings, 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 the 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."
18.
What can be summarized from the above
decisions are (i)That the primary object of Section 391 Cr.P.C is to prevent
the failure of justice that may outcome by some careless or ignorantaction on
part of the prosecution before the court or for vindication of an innocent
person wrongfully accused, where the court omitted to record the evidence
essential to elucidation of truth. (ii) To prevent the Happening of a de novo
trial,which may be prejudicial to the accused or prosecution, depending upon
the facts and circumantances of each case. (iii) The power has to be exercised
with great care, caution and circumspection to meet the ends of justice. (iv)
The power not to be used for filling up the lacuna in the prosecution evidence,
but to serve the ends of justice or to prevent the failure of justice, Only in
exceptional and suitable cases, where the Court is satisfied that directing additional
evidence would serve the ends of justice.(v) If the Appellate Court finds that
certain evidence is necessary in order to give a correct and proper finding, it
would be justified in exercising this power. The ends of justice have to
address as much the interests of the accused as that of the public prosecutor.
19.
Reverting to the facts of the case at
hand, the main contention of the learned counsel for the appellants for
tendering additional evidence is that informant of the instant case Sri Laxmi
Narain has not supported the prosecution version while giving evidence in the connected
criminal case pertaining to Gangster Act. Learned counsel for the appellants
has enclosed a certified copy of that statement of the witness i.e. Laxmi
Narain along with the affidavit.
Perusal
of the statement of Sri Laxmi Narain informant of the instant case which has
been testified as P.W.-5 in Gangster Act case, shows that in his
examination-in-chief recorded on 18.12.2017, he has supported the prosecution
version by stating clearly that his brother Jai Narain was murdered by Ram
Sajivan, Shiv Shanker Verma , Guddu @ Saroj and Hanoman. He had also
categorically stated the manner in which his brother was killed by accused
persons. So much so he also proved the First Information Report of the instant case.
Significantly, he was not cross-examined on the same day by the accused persons
and his cross-examination was deferred. He was cross-examined on 19.12.2017(the
next day.) wherein he resiled from his earlier statement and stated that he lodged
the First InformationReport at the instance of a Sub-Inspector. Learned A.G.A.
has contended that after being examined-in-chief on 18.12.2017, purposely no
cross-examination has been done on the same day and probably on the next day he
had been won over and have not supported the version of prosecution.
20.
Significantly Sri Laxmi Narain has
already been examined by the Court below as P.W.-1 and he had been cross
examined by the accused persons at length. In his in chief and cross
examination, he supported the version of prosecution. He was examined in this
case on 7.10.2010 and in the case pertaining to Gangster Act his evidence was
recorded on 18.12.2017(After 8 years from the date his evidence was recorded in
the instant case and after five years from the pronouncement of judgment by the
Lower Court in the instant case). If we put all these facts and circumstances
on the touchstone of bona-fide , it appears that the same is lacking.
21. Learned counsel for the Appellants
failed to impress as to how the evidence given in other criminal case is
material for the just disposal of this appeal. The statement of Sri Laxmi
Narain ,to which Appellants proposes as an additional evidence, has been
recorded in a different criminal case pertaining to the Gangster Act and
therefore does not appears necessary for the just disposal of this case. It has
to be kept in mind that this is not a case where the evidence of Sri Laxmi
Narain has not been recorded before the Court below, rather it is a case where
his evidence had been recorded and he had been cross-examined at length by the
Appellants and after taking into account his evidence as well as other evidence
available on record, appellants have been convicted by the trial court.
Therefore any statement given by this witness after a lapse of 8 years, in some
other criminal case, which has no concern with the occurrence that took place
in the instant case, may be neither relevant nor material for the just disposal
of this appeal. No doubt the role of a Criminal Court is to search the truth
and Criminal Courts, in this regard, has been empowered by many sections
provided in the Code of Criminal Procedure but all these powers, including the
power given under Section 391 of Cr.P.C., should be used to serve the ends of justice,
in exceptional and suitable cases, where the Court is satisfied that taking
additional evidence would serve the ends of justice. It is inthe sole
discretion of the Appellate Court, when it finds certain evidence necessary, in
order to give a correct and proper finding it would be justified in exercising
the power conferred by Section 391 of the Cr.P.C. No need to highlight that
this power should not be used for the detriment of any party, including the
prosecution or accused.
22.
In our considered opinion, when the
evidence of Sri Laxmi Narain has already been recorded by the Court below as
PW-1, neither his statement given in any other criminal case is a material
evidence nor is required for the just decision of this case, therefore, the
ends of justice will meet in rejection of the application moved by appellants
under section 391 of Cr.P.C.
Keeping
in view the factual and legal position mentioned herein before, the application
moved by accused-appellants, under Section 391 of Cr.P.C., to tender additional
evidence is devoid of any substance and is hereby rejected.
The
paper book has already been prepared and is available on record. List this
appeal after two weeks for final hearing.