Final Order 9

Order Details: COPY OF ORDER
Pdf Text: 1.
CA 218/2023
SANDEEP
Vs.
MAHAVEER & Ors.
08.04.2024
Present: Sh. Sahil Dabas, Ld. Counsel for the appellant.
Sh. Arun Kumar Khatri, Ld. Counsel for the respondents.
1. Record reveals that an application under Section 391 of
Cr.P.C. for placing additional evidence on record is pending for
adjudication.
2. Arguments have already adduced.
3. It is stated in the application that incident in the instant
matter of brutal attack by the respondents was witnesses by a number of
people which was also recorded in the CCTV cameras installed at the
office of Govt. Organization and the footage of the same was handed
over by the appellant in a DVD to the Investigating Officer concerned
(hereinafter referred to as 'IO'). It is further stated that the IO had
acknowledged the receiving of the said DVD in the charge sheet and also
find mentioned in the list of documents. The IO deliberately did not
place the said DVD on record. It is further stated that the said DVD was
crucial evidence in the instant matter, however, the Ld. APP neither
moved any application to bring the said DVD on record nor he pointed
out the missing of DVD from the charge sheet to the Ld. Trial Court. It is
further stated that Ld. Trial Court has failed to take into account the
inaction and deliberate omission of the IO. Accordingly, it is prayed that
the instant application under Section 391 of Cr.P.C. may be allowed for
leading the additional evidence in the instant matter.
-- 1 of 6 --
2.
4. Per contra, the said application is opposed by the Ld.
Counsel for the respondents on the ground that the same is not
maintainable after pronouncement of judgment. Accordingly, the present
application should be dismissed.
The Position in Law regarding additional evidence at appellate
stage:-
5. The Hon'ble Supreme Court in case titled as Ashok
Tsherking Bhutia Vs. State of Sikkim, (2011) 4 Supreme Court Cases
402, has categorically held that additional evidence at the appellate stage
is 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 end of justice. The provisions of Section
391 CrPC cannot be used to fill up the lacunae in the prosecution case.
The relevant extract(s) of the said judgment are reproduced below for
ready reference:-
“....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
-- 2 of 6 --
3.
elucidation of truth. Generally, it should be invoked when
formal proof for the prosecution is necessary. [Vide
Rajeswar Prasad Misra v. State of W.B. [AIR 1965 SC
1887 : (1965) 2 Cri LJ 817] , Ratilal Bhanji Mithani v.
State of Maharashtra [(1971) 1 SCC 523 : 1971 SCC
(Cri) 231 : AIR 1971 SC 1630] , Rambhau v. State of
Maharashtra [(2001) 4 SCC 759 : 2001 SCC (Cri) 812 :
AIR 2001 SC 2120] , Anil Sharma v. State of Jharkhand
[(2004) 5 SCC 679 : 2004 SCC (Cri) 1706 : AIR 2004 SC
2294] , Zahira Habibulla H. Sheikh v. State of Gujarat
[(2004) 4 SCC 158 : 2004 SCC (Cri) 999] and Manu
Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1 : (2010)
2 SCC (Cri) 1385 : AIR 2010 SC 2352] .]
30. This Court in State of Gujarat v. Mohanlal Jitamalji
Porwal [(1987) 2 SCC 364 : 1987 SCC (Cri) 364 : AIR
1987 SC 1321] 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 moment upon passions being aroused. An
economic offence is committed with cool calculation and
deliberate design with an eye on personal profit
regardless of the consequence to the community. A
disregard for the interest of the community can be
manifested only at the cost of forfeiting the trust and faith
of the community in the system to administer justice in an
even-handed manner without fear of criticism from the
quarters which view white-collar crimes with a permissive
eye unmindful of the damage done to the national
economy and national interest.”
31. In Rambhau [(2001) 4 SCC 759 : 2001 SCC (Cri)
812 : AIR 2001 SC 2120] , a larger Bench of this Court
held as under : (SCC p. 762, para 4)
“4. Incidentally, Section 391 forms an exception to the
-- 3 of 6 --
4.
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...”.
6. Further in case titled as Ajitsinh Chehuji Rathod V. State of
Gujrat, Criminal Appeal No(s). of 2024 (Arising out of SLP (Crl.) No(s).
16641 of 2023), has laid down that additional evidence can be allowed
only when the party is able to show that despite his due diligence he was
prevented from bringing such evidence. The relevant extract of the said
judgment is reproduced below for ready reference:-
“.....At the outset, we may not that the law is well-settled
by a catena of judgments rendered by this Court that
power to recorded additional evidence under Section 391
CrPC should only be exercised when the party making
such request was prevented from presenting the evidence in
the trial despite due diligence being exercised or that the
facts giving rise to such prayer came to light at a later
stage during pendency of the appeal and that non-
recording of such evidence may lead to failure of
justice....”.
Findings:-
7. Applying the principles laid down in the abovementioned
judgments to the facts of the present case. By way of the present
application the complainant wants to lead additional evidence by
bringing on record CCTV footage of the incident. It is pertinent to
mention here that the complainant was examined before the Trial Court
on 23.05.2023, however, he has failed to depose anything about the
-- 4 of 6 --
5.
CCTV footage of the alleged incident. The complainant had a fair
opportunity to bring the CCTV footage at the time of his examination in
chief and had not availed of it. There is nothing on record to show that
the complainant exercised due diligence and was prevented from
presenting evidence before the trial Court. In the cross examination the
complainant has stated that he was not beaten up by the accused persons
and they were not responsible for the injuries sustained by him and has
further stated that one Monu gave danda (stick) blow to him and the real
assailants fled away. No fruitful purpose will be served to allow
additional evidence for bringing on record CCTV footage as the
complainant (PW-1) and the eye witness (PW-3) has failed to identify the
accused persons at the time of trial. The judgment(s) relied by the Ld.
Counsel for the complainant is of no use as the eye witness and the
complainant have not supported the case of the prosecution. In these
circumstances, the application to lead additional evidence stands
dismissed.
8. Arguments qua the appeal has already been addressed.
9. Put up for orders at 4.00 PM today itself.
(JITENDRA SINGH)
ASJ (Electricity)/(NW)
Rohini Courts, Delhi
08.04.2024
At 4.00 PM.
Present: Sh. Sahil Dabas, Ld. Counsel for the appellant.
None for the respondents.
-- 5 of 6 --
6.
10. Vide my separate judgment of even date announced today in
the open Court, the instant appeal stands dismissed.
11. Appeal file be consigned to record room. TCR alongwith
the copy of the judgment be also sent to the Court concerned.
(JITENDRA SINGH)
ASJ (Electricity)/(NW)
Rohini Courts, Delhi
08.04.2024
-- 6 of 6 --