Ashok Pokhrel vs State of Sikkim

Permod Kohli, J.—Present application has been filed on behalf of the prosecution seeking leave of the Court to adduce additional evidence in respect of the articles received from the C.F.S.L., Kolkata and to-file supplementary charge-sheet already prepared. Objections have been filed by the accused/appellant opposing the application primarily on the ground that the prosecution could not be permitted to fill up the lacuna in the prosecution case.

We have heard Mr. A.K. Upadhyaya, learned Sr. Advocate appearing for the appellant and Mr. Karma Thinlay Namgyal learned Additional Public Prosecutor appearing on behalf of the respondent.

It is undisputed that the articles, the subject matter of forensic analysis, were seized during the investigation and sent to C.F.S.L., Kolkata for examination. From the averments made in the application and the case file we find that these articles were sent to the C.F.S.L., Kolkata on 12-5-2006. The C.F.S.L. prepared the report on 11-5-2010. This report was received by the CID, Sikkim on 30-8-2010 and came in the hands of I.O. on 3-9-2010. The I.O. prepared the supplementary charge-sheet on 4-9-2010 and dispatched the same to S.P., West for further necessary action on 13-9-2010. It was received by the Office of the S.P., West on 14-9-2010. It is stated that while the steps were in to file the supplementary charge-sheet, the judgment came to be prononunced by the learned Sessions Judge, South & West Sikkim at Namchi on 10-9-2010. By the time the supplementary charge-sheet was brought to the notice of the Court on 23-9-2010, the judgment had already been delivered.

It seems that the prosecution became lax as there was conviction even in absence of the report of the C.F.S.L., Kolkata and took no steps to place it on the record of this Court.

During the course of the arguments before this Court, it was argued on behalf of the appellant that the blanket used to wrap and evacuate the deceased and other articles/ clothes on her body though seized were not produced before the trial Court along with C.F.S.L. report and in absence of any report or the articles, the prosecution story fails.

Mr. Karma Thinlay Namgyal, learned Addl. P.P., however, informed the Court that the seized articles were received by the police along with the report of the C.F.S.L., Kolkata during the pendency of the trial. However, due to several formalities the same could not be produced before delivery of the judgment. The circumstances noticed herein above, as averred in the application do point to this fact.

Section 391 of the Code of Criminal Procedure empowers the appellate Court to permit additional evidence if it is found to be necessary by recording the reasons therefor.

The articles and the C.F.S.L. report admittedly is relevant for the purposes of effective adjudication of the present appeal.

It is not a case of filling lacuna as argued by Mr. A.K. Upadhyaya. The question of filling of lacuna could only arise if any evidence is sought to be introduced at the belated stage. In the present case it is the admitted position on record that these articles were seized during the course of investigation and sent to C.F.S.L., Kolkata for forensic examination. Even the report was prepared and received by the police before the date of judgment, though the same could not be produced for which the prosecution cannot be absolved of its responsibility.

Be that as it may, it is a case where I the evidence/material was in existence but could not be produced during the trial. The reasons explained in the application though not absolutely satisfactory, however, the evidence being material or at least relevant for the purpose of the present appeal, we are of the considered opinion that such additional evidence should be allowed. This controversy is squarely covered by the judgment of the Apex Court in Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, , wherein the Hon''ble Supreme Court under similar circumstances while considering the scope and ambit of Sec. 391 of the Cr.P.C. made following observations :--

58................The necessity for additional evidence arises when the Court feels that some evidence which ought to have been before it is not there or that some evidence has been left out or erroneously brought in. In all cases it cannot be laid down as a rule of universal application that the Court has to first find out whether the evidence already on record is sufficient. The nature and quality of the evidence on record is also relevant. If the evidence already on record is shown or found to be tainted, tailored to suit or help a particular party or side and the real truth has not and could not have been spoken or brought forth during trial, it would constitute merely an exercise in futility, if it considered first whether the evidence already on record is sufficient to dispose of the appeals. Disposal of appeal does not mean disposal for statistical purposes but effective and real disposal to achieve the object of any trial. The exercise has to be taken up together. It is not that the Court has to be satisfied that the additional evidence would be necessary for rendering a verdict different from what was rendered by the trial Court. In a given case even after assessing the additional evidence, the High Court can maintain the verdict of the trial Court and similarly the High Court on consideration of the additional evidence can upset the trial Court''s verdict. It all depends upon the relevance and acceptability of the additional evidence and its qualitative worth in deciding the guilt or innocence of the accused.

59....................The question of admission of evidence initially or as additional evidence u/s 391 is distinct from the efficacy, reliability and its acceptability for consideration of claims in the appeal on merits. It is only after admission, the Court should consider in each case whether on account of earlier contradiction before Court and the testimony allowed to be given as additional evidence, which of them or any one part or parts of the depositions are creditworthy and acceptable, after a comparative analysis and consideration of the probabilities and probative value of the materials for adjudging the truth..........................

In view of the factual background and dictum of the aforesaid judgment, we are of the considered view that there are valid reasons to allow the additional evidence in the present appeal. The application thus succeeds. With a view to provide fair opportunity to both the parties, to the prosecution to lead the additional evidence and an equal fair opportunity to the accused/appellant to rebut such additional evidence, we direct the learned Sessions Judge to record additional evidence in accordance with law. After additional evidence is produced by the prosecution, the appellant/accused is to be provided an opportunity not only to cross-examine the witnesses but also to lead evidence in rebuttal, if so desired. The learned Sessions Judge will also record the statement of accused u/s 313 Cr.P.C. to provide him an opportunity to explain circumstances if any appearing against him, on the basis of the additional evidence so taken. For the purpose of recording additional evidence, the original records shall be remitted to the learned Sessions Judge forthwith.

Mr. Upadhyaya submits that since the accused/ appellant is in jail, proceedings at the trial Court may be expedited. There is substance in the contention. The accused/ appellant was being represented by the legal aid counsel before the trial Court and even before this Court. Therefore, we direct the Sikkim State Legal Services Authority to nominate a senior lawyer to defend the accused/appellant before the trial Court during the recording of the additional evidence, etc. Such nomination shall be made within a period of one week from the date of receipt of the copy of this order. The parties shall appear before the learned Sessions Judge on 16-4-2012. The prosecution shall produce the entire evidence within a period of one month, the accused/appellant shall have the opportunity to rebut the additional evidence within a period of two weeks thereafter as desired by Mr. Upadhyaya. The learned Sessions Judge shall on appreciation and consideration of the additional evidence submit its report to this Court within a period of two weeks from the date of recording of statement of accused/appellant u/s 313 Cr.P.C. List on receipt of the report from the learned Sessions Judge.