Uttarakhand High Court
Mr. Kishor Sharm A And Ot Her S … … vs St At E Of Ut T Arakhand And Anot Her on 27 December, 2024
2024:UHC:9989
U H I GH COURT OF UTTARAKH AN D
U AT N AI N I TAL
Cr im ina l M isce lla ne ous Applica t ion N o. 2 8 6 of 2 0 1 5
Mr. Kishor Sharm a and ot her s ... Applicant s
Versus
St at e of Ut t arakhand and anot her ...Respondent s
Advocat es : Mr. Vinod Sharm a, lear ned counsel for t he applicant s
Mr. K.S. Bora, learned Deput y Adv ocat e General for t he St at e of
Ut t arakhand
Mr. R.S. Sam m al, learned counsel for r espondent No. 2
Reserv ed on : 16.12.2024
U
U Deliver ed on : 27.12.2024
U H on 'ble M a n oj Ku m a r Tiw a r i, J.
1. This Crim inal Miscellaneous Applicat ion under Sect ion
482 CrPC is filed, challenging order dat ed 21.02.2015,
passed by learned I st Addit ional Sessions Judge, Udham
Singh Nagar, in Crim inal Appeal No. 30 of 2013. By said
j udgm ent , applicat ion under Sect ion 391 CrPC, filed by
com plainant was allowed.
2. I t t ranspires t hat respondent No. 2 lodged an FI R
against applicant s in Police St at ion, SI DCUL, Pant Nagar
on 30.07.2006 and upon invest igat ion, chargesheet was
filed against applicant s under Sect ions 323, 325, 504, 506
I PC. Learned t rial court convict ed t he applicant s for
offence punishable under Sect ion 323 I PC and sent enced
t hem t o six m ont hs’ im prisonm ent wit h fine of Rs. 500/ –
each and, acquit t ed t hem of t he charge of offences
punishable under Sect ions 325, 504, 506 I PC vide
j udgm ent and order dat ed 23.01.2013.
3. Dissat isfied wit h t he punishm ent given t o t he accused
persons, respondent No. 2 filed appeal against t rial court ‘s
2024:UHC:9989
j udgm ent , which is regist ered as Crim inal Appeal No. 30 of
2013 and is pending. I n t he said appeal, respondent No. 2
m oved an applicat ion under Sect ion 391 CrPC, for
adducing addit ional evidence which was allowed vide order
dat ed 21.02.2015. Applicant s are aggrieved by said order.
4. Heard learned counsel for t he part ies and perused t he
record.
5. Applicant s were acquit t ed of t he charge under Sect ion
325 CrPC for t he reason t hat , neit her X- ray plat e was
produced t o prove t he nat ure and gravit y of inj uries
sust ained by respondent No. 2 nor t he radiologist was
exam ined, as wit ness for bringing hom e t he charge of
Sect ion 325 I .P.C.
6. I n t he aforesaid appeal, com plainant ( respondent No.
2) , m oved an applicat ion under Sect ion 391 CrPC st at ing
t hat , X- ray plat e and report dat ed 31.07.2006 are
available in t he record m aint ained by concerned
governm ent hospit al, t herefore, Principal Medical
Superint endent of t he concerned hospit al m ay be direct ed
t o produce X- ray plat e/ X- ray report before t he Court and
t he radiologist m ay also be sum m oned and exam ined by
t he Court .
7. The appellat e Court allowed t he applicat ion for
adducing addit ional evidence filed by respondent No. 2,
vide order dat ed 21.02.2015. Learned appellat e Court
observed t hat original m edical report and supplem ent ary
m edical report of t he inj ured, Mr. P.P. Arora, are part of
record of t he t rial Court , however, prosecut ion failed t o
produce t he X- ray report dat ed 31.07.2006 in respect of
inj ured, P.P. Arora. Learned appellat e Court has observed
2024:UHC:9989
t hat if exam inat ion of t he radiologist was necessary t o
bring hom e t he charge under Sect ion 325 I PC, t hen it was
t he dut y of t he t rial Court t o sum m on and exam ine t he
radiologist . The appellat e Court furt her observed t hat t he
appeal has not been filed by t he prosecut ion, but by t he
inj ured him self.
8. Sect ion 391 CrPC enables appellat e court t o t ake
furt her evidence or direct it t o be t aken. For ready
reference, Sect ion 391 CrPC is ext ract ed below : –
” 3 9 1 . Appe lla t e Cou r t m a y t a k e fu r t h e r e vide n ce or
dir e ct it t o be t a k e n –
( 1) I n dealing wit h any appeal under t his Chapt er , t he
Appellat e court , if it t hinks addit ional evidence t o be
necessary , shall record it s r easons and m ay eit her
t ake such evidence it self, or dir ect it t o be t aken by
a Magist rat e, or w hen t he Appellat e Court is a High
Court , by a Court of Session or a Magist rat e.
( 2) When t he addit ional evidence is t ak en by t he Court
of Session or t he Magist rat e, it or he shall cert ify
such evidence t o t he Appellat e Court , and such
Court shall t her eupon proceed t o dispose of t he
appeal.
( 3) The accused or his pleader shall hav e t he right t o be
present w hen t he addit ional evidence is t aken.
( 4) The t aking of evidence under t his sect ion shall be
subj ect t o t he provisions of Chapt er XXI I I , as if it
wer e an inj ury .”
9. Learned counsel for applicant s subm it t ed t hat t he
im pugned order, is unsust ainable as t he prosecut ion had
sufficient opport unit y t o bring X- ray report / plat e on record
and also t o sum m on t he radiologist as wit ness before t rial
court and if prosecut ion failed t o discharge it s burden
during t rial, t hen it cannot be perm it t ed t o fill in t he lacuna
at appellat e st age. I n support of t his cont ent ion, learned
counsel for applicant s relied upon j udgm ent rendered by
Hon’ble Suprem e Court in t he case of Ra m bha u a nd
2024:UHC:9989
a not he r vs. St a t e of M a ha r a sht r a report ed in ( 2 0 0 1 ) 4
SCC 7 5 9 .
10. Learned counsel for applicant s furt her subm it t ed t hat
it is set t led posit ion in law t hat if t wo reasonable
conclusions are possible based on evidence on record, t hen
appellat e Court should not dist urb t he finding of acquit t al
recorded by t rial Court , as held in t he case of Sa dhu
Sa r a n Singh Vs. St a t e of UP a nd ot he r s, report ed in
( 2 0 1 6 ) 4 SCC 3 5 7 .
11. The j udgm ent rendered in t he case of Sadhu Saran
Singh ( supra) does not support t he applicant s. Appellat e
Court has not dist urbed finding of acquit t al recorded by
t he t rial Court and it has m erely perm it t ed addit ional
evidence t o be t aken on record. Addit ional evidence can be
accept ed on record if t he appellat e Court t hinks such
addit ional evidence t o be necessary for deciding an appeal.
12. Per cont ra, Mr. R.S. Sam m al, learned counsel for
respondent No. 2 relied upon j udgm ent rendered by
Hon’ble Suprem e Court in t he case of Ashok Tshe r ing
Bhut ia Vs. St a t e of Sik k im report ed in ( 2 0 1 1 ) 4 SCC
4 0 2 . He refers t o para 28 and 29 of t he said j udgm ent ,
which are ext ract ed below: –
“Addit iona l e vide nce
2 8 . Addit ional evidence at t he appellat e st age is
perm issible, in case of a failure of j ust ice. However, such
power m ust be exercised sparingly and only in except ional
suit able cases where t he court is sat isfied t hat direct ing
addit ional evidence would serve t he int erest s of j ust ice. I t
would depend upon t he fact s and circum st ances of an
individual case as t o whet her such perm ission should be
grant ed having due regard t o t he concept s of fair play, j ust ice
and t he well- being of societ y. Such an applicat ion for t aking
addit ional evidence m ust be decided obj ect ively, j ust t o cure
t he irregularit y.
2 9 . The prim ary obj ect of t he provisions of Sect ion 391
CrPC is t he prevent ion of a guilt y m an’s escape t hrough som e
2024:UHC:9989
careless or ignorant act ion on part of t he prosecut ion before
t he court or for vindicat ion of an innocent person wrongfully
accused, where t he court om it t ed t o record t he circum st ances
essent ial t o elucidat ion of t rut h. Generally, it should be
invoked when form al proof for t he prosecut ion is necessary.
[ Vide Raj eswar Prasad Misra v. St at e of W.B. [ AI R 1965 SC
1887 : ( 1965) 2 Cri LJ 817] , Rat ilalBhanj iMit hani v. St at e of
Maharasht ra [ ( 1971) 1 SCC 523 : 1971 SCC ( Cri) 231 : AI R
1971 SC 1630] , Ram bhau v. St at e of Maharasht ra [ ( 2001) 4
SCC 759 : 2001 SCC ( Cri) 812 : AI R 2001 SC 2120] , Anil
Sharm a v . St at e of Jharkhand [ ( 2004) 5 SCC 679 : 2004 SCC
( Cri) 1706 : AI R 2004 SC 2294] , ZahiraHabibulla H.
Sheikh v. St at e of Guj arat [ ( 2004) 4 SCC 158 : 2004 SCC ( Cri)
999] and Manu Sharm a v. St at e ( NCT of Delhi) [ ( 2010) 6 SCC
1 : ( 2010) 2 SCC ( Cri) 1385 : AI R 2010 SC 2352]
13. Learned counsel for respondent No. 2, furt her
subm it t ed t hat his client had handed over all
docum ent s/ evidence in respect of t he inj uries sust ained by
him t o t he invest igat ing officer; however, invest igat ing
officer, for reasons best known t o him , did not place t hose
docum ent s on record, which result ed in m iscarriage of
j ust ice as accused persons were acquit t ed of t he charge
under Sect ion 325 I .P.C.
14. He furt her subm it t ed t hat learned appellat e Court is
right in observing t hat it was t he dut y of t he t rial Court t o
sum m on t he radiologist and ot her evidence available in
Jawahar Lal Nehru Dist rict Hospit al, Rudrapur, if t hat was
necessary t o bring hom e t he charge under Sect ion 325
I .P.C. against t he accused persons and acquit t al of t he
accused persons for t he said offence, despit e availabilit y of
cogent evidence in a governm ent hospit al, has result ed in
m iscarriage of j ust ice. He subm it s t hat by allowing t he
applicat ion under Sect ion 391 CrPC, learned appellat e
Court has m erely perm it t ed product ion of cert ain
docum ent s/ report s which are lying in record room of t he
governm ent hospit al. Thus, he subm it s t hat no new
evidence has been perm it t ed t o be brought on record and
what ever docum ent s are available in t he concerned
2024:UHC:9989
governm ent hospit al, have been perm it t ed t o be placed on
record. Thus, he subm it s t hat learned appellat e Court has
exercised it s power under Sect ion 391 CrPC, t o secure
ends of j ust ice and any int erference wit h t he said order
would result in m iscarriage of j ust ice. He subm it s t hat
accused persons cannot get benefit of lapse on t he part of
prosecut ion of not bringing t he m at erial evidence on
record and t he m ist ake com m it t ed by prosecut ion has
right ly been undone by appellat e Court .
15. He furt her subm it t ed t hat fact um of fract ure suffered
by com plainant is proved by X- ray report and X- ray plat e
available in a governm ent hospit al, t herefore, t hat fact can
very well be ascert ained by appellat e Court t o ensure t hat
a person who has com m it t ed a crim e, do not escape due
t o som e careless or ignorant act ion on part of t he
prosecut ion.
16. Hon’ble Suprem e Court in t he case of Br iga die r
Suk hj e e t Singh ( Re t ire d) M VC VS. St a t e of Ut t a r
Pr a de sh a nd ot he r s, report ed in ( 2 0 1 9 ) 1 6 SCC 7 1 2
has sum m arised t he legal posit ion in para 26 of t he
j udgm ent . Relevant ext ract of t he said j udgm ent is
reproduced below: –
“2 4 . Power t o t ake addit ional evidence under Sect ion
391 is, t hus, wit h an obj ect t o appropriat ely decide t he
appeal by t he appellat e court t o secur e ends of j ust ice.
The scope and am bit of Sect ion 391 CrPC has com e up
for considerat ion before t his Court in Raj eswar Prasad
Misra v. St at e of W.B. [ Raj eswar Prasad Misra v. St at e of
W.B., AI R 1965 SC 1887 : ( 1965) 2 Cri LJ 817]
Hidayat ullah, J., speaking for t he Bench held t hat a w ide
discret ion is confer red on t he appellat e court s and t he
addit ional evidence m ay be necessary for a variet y of
reasons. He held t hat addit ional evidence m ust be
necessary not because it would be im possible t o
pronounce j udgm ent but because t here would be failure
of j ust ice wit hout it . Following was laid down in paras 8
and 9 : ( AI R p. 1892)
2024:UHC:9989
” 8. … Since a wide discret ion is conferred on appellat e
court s, t he lim it s of t hat court s’ j urisdict ion m ust
obviously be dict at ed by t he exigency of t he sit uat ion
and fair play and good sense appear t o be t he only safe
guides. There is, no doubt , som e analogy bet ween t he
power t o order a ret rial and t he power t o t ake
addit ional evidence. The form er is an ext rem e st ep
appropriat ely t aken if addit ional evidence will not
suffice. Bot h act ions subsum e failure of j ust ice as a
condit ion precedent . There t he resem blance ends and it
is hardly proper t o const rue one sect ion wit h t he aid of
observat ions m ade by t his Court in t he int erpret at ion of
t he ot her sect ion.
9. Addit ional evidence m ay be necessary for a var iet y
of reasons which it is hardly necessary ( even if was
possible) t o list here. We do not propose t o do what t he
legislat ure has refrained from doing, nam ely, t o cont rol
discret ion of t he appellat e court t o cert ain st at ed
circum st ances. I t m ay, however, be said t hat addit ional
evidence m ust be necessary not because it would be
im possible t o pronounce j udgm ent but because t here
would be failure of j ust ice wit hout it . The power m ust
be exercised sparingly and only in suit able cases. Once
such act ion is j ust ified, t here is no rest rict ion on t he
kind of evidence which m ay be received. I t m ay be
form al or subst ant ial. I t m ust , of course, not be
received in such a way as t o cause prej udice t o t he
accused as for exam ple it should not be received as a
disguise for a ret r ial or t o change t he nat ur e of t he case
against him . The order m ust not ordinar ily be m ade if
t he prosecut ion has had a fair opport unit y and has not
availed of it unless t he requirem ent s of j ust ice dict at e
ot herwise.”
2 5 . This Court again in Ram bhau v. St at e of
Maharasht ra [ Ram bhau v. St at e of Maharasht ra, ( 2001)
4 SCC 759 : 2001 SCC ( Cri) 812] had not ed t he power
under Sect ion 391 CrPC of t he appellat e court . Following
was st at ed in paras 1 and 2 : ( SCC p. 761)
” 1. There is available a very w ide discr et ion in t he
m at t er of obt aining addit ional evidence in t erm s of
Sect ion 391 of t he Code of Crim inal Procedure. A plain
look at t he st at ut ory provisions ( Sect ion 391) would
reveal t he sam e…
2. A word of caut ion however, ought t o be int roduced
for guidance, t o w it : t hat t his addit ional evidence
cannot and ought not t o be received in such a way so
as t o cause any prej udice t o t he accused. I t is not a
disguise for a ret r ial or t o change t he nat ur e of t he case
against t he accused. This Court in Raj eswar Prasad
Misra v. St at e of W.B. [ Raj eswar Prasad Misra v. St at e
of W.B., AI R 1965 SC 1887 : ( 1965) 2 Cr i LJ 817] in no
uncert ain t erm s observed t hat t he order m ust not
ordinar ily be m ade if t he prosecut ion has had a fair
opport unit y and has not availed of it . This Court was
candid enough t o record however, t hat it is t he concept
of j ust ice which ought t o prevail and in t he event , t he
sam e dict at es exercise of power as conferred by t he
Code, t here ought not t o be any hesit at ion in t hat
regard.”
2024:UHC:9989
2 6 . From t he law laid down by t his Court as not ed
above, it is clear t hat t here are no fet t ers on t he power
under Sect ion 391 CrPC of t he appellat e court . All
powers are conferred on t he court t o secure ends of
j ust ice. The ult im at e obj ect of j udicial adm inist rat ion is
t o secure ends of j ust ice. Court exist s for rendering
j ust ice t o t he people.
17. I n a recent j udgm ent rendered in t he case of Aj it sinh
Che huj i Ra t hod Vs. St a t e of Guj a r a t a nd Anot he r,
report ed in ( 2 0 2 4 ) 4 SCC 4 5 3 , Hon’ble Suprem e Court
has held t hat power t o record addit ional evidence under
Sect ion 391 CrPC can be exercised when t he part y m aking
such request was prevent ed from present ing t he evidence
in t he t rial despit e due diligence and t hat non- recording of
such evidence m ay lead t o failure of j ust ice.
18. I n t he present case, FI R was lodged by t he
com plainant for offences punishable under Sect ions 392,
323, 504 and 506 I PC; however, aft er invest igat ion,
chargesheet was filed for offences punishable under
Sect ions 323, 325, 504 and 506 I PC. I t is t hus apparent
t hat Sect ion 392 I PC was dropped and Sect ion 325 I PC
was added in t he charge sheet , based on evidence
collect ed during invest igat ion.
19. I n para 3 of t rial Court ‘s j udgm ent , it is m ent ioned
t hat Sect ion 325 I PC was added based on m edical report
and st at em ent of wit nesses. Therefore, it was incum bent
upon t he t rial Court t o sum m on X- ray report and t he
radiologist and exam ine t hem before recording acquit t al of
t he accused persons. Since t his was not done by t rial
Court which result ed in acquit t al of accused persons,
t herefore, learned appellat e Court right ly correct ed t he
said m ist ake by perm it t ing t he com plainant t o bring
addit ional evidence on record.
2024:UHC:9989
20. Thus, t his Court does not find any reason t o int erfere
wit h t he discret ionary order passed by learned appellat e
Court . Accordingly, C482 Applicat ion fails and is dism issed.
( M a n oj Ku m a r Tiw a r i, J.)
27.12.2024
Mahinder/
Digitally signed by MAHINDER SINGH
DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND,
MAHINDER SINGH 2.5.4.20=da6212e6e78d94ed3134842bc6a8d6ca168979ca7b8c2f031a92d1a18b08923c,
postalCode=263001, st=UTTARAKHAND,
serialNumber=AB77B7C5B240908B392BE84F5CDD4C2AF35DC4626D305B1BC9EA4BABA43
D2B8F, cn=MAHINDER SINGH
Date: 2024.12.27 18:02:59 +05’30’
[ad_1]
Source link