Chandrakant Jha vs State

Ashutosh Kumar, J.

The applicant/appellant has preferred this application under Section 391 of the Code of Criminal Procedure read with Section 482 of the Code of Criminal Procedure for taking the replies under Right to Information Act, 2005 (hereinafter referred to "RTI" for short) obtained after the pronouncement of the final judgment passed by the Trial Court in Sessions Case No. 89/2011 (FIR No. 243/2007); SC No. 90/2011 (FIR No. 609/2006) and SC No. 91/2011 (FIR No. 279/2007) all of Hari Nagar police station, on record as additional evidence. The applicant has filed three criminal appeals bearing Criminal Appeal Nos. 655/2013 (S.C No. 89/2011 in FIR No. 243/2007); 656/2013 (S.C No. 91/2011 in FIR No. 279/2007) and 216/2015 (SC No. 90/2011 in FIR No. 90/2011) which is pending adjudication.

The cases against the appellant relate to serial killings in the year 2006 and 2007 in Delhi where the victims were beheaded, dismembered and their limbs were thrown outside Central Jail, Tihar and at other places around Delhi.

The applicant has averred that after filing of the criminal appeals, he has collected certain information through the mechanism of RTI and such information are required to be taken on record as additional evidence, for a just decision in appeal.

The application refers to as many as 47 replies. No details of such documents or its relevance for deciding the appeal have been stated in the application.

We, therefore, directed the counsel for the appellants to furnish a chart giving details of the nature of information sought and its relevance to the just decision of the case. The chart which has been furnished refers to the following documents:-

After going through such replies which have been made part of the petition, we notice that there are repetitions and similar issues have been agitated by the applicant through various documents in form of replies to the RTI. Most of the documents, which are requested to be taken on record, do not have any bearing with the facts of the cases which have been tried.

A criminal case against an official witness with respect to another transaction does not in any way discredit such witness. The reference of FIRs where no headless dead bodies were recovered are not relevant as the investigations in such cases were closed for paucity of any lead or evidence. The fact that the request of the appellant to meet his family members was not acceded to, would not in any manner affect the nature of evidence collected against the appellant. The sample handwriting which are taken in presence of the judicial officer cannot at all be tampered with even if it is kept in the file which is maintained by the investigating officer. Absence of any record of deployment of any police officer does not also lead to the conclusion that the case is false. Similarly, the timing of departure of the mobile crime team also is of no great relevance as there could always be wrong estimation of time. The telephone in a police station may be having caller I.D facilities but the same could be used only if the apparatus/telephone is fitted with such screen where the numbers could be displayed. The ingress and egress of the documents from the malkhana is normally recorded in the original store room register. Such register becomes part of the case property and no definite reply could be given about such movement of papers. Some of the replies, even if accepted by way of additional evidence would not change or affect the findings of the Trial Court.

However, the replies contained in P-1, P-7, P-8, P-12 and P-27 can be said to have some possible relevance so far as the defence of the appellant is concerned.

We have undertaken such exercise, despite the case being an old one, only for the reason that it is a death reference matter and such an application has been filed from jail.

Section 391 of the Code of Criminal Procedure provides for the powers and the circumstances under which the appellate Court could order for taking of additional evidence.

"Section 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."

There is no cavil on the powers of the appellate court to receive additional evidence if such evidence is considered to be necessary for coming to a just decision in any case. The primary object is to prevent the escape of the wrong doer as also to vindicate the innocence of a person who has wrongly been made accused and convicted. No restriction can be perceived in the wordings of Section 391 Cr.P.C either as to the nature of evidence or at whose instance can such additional evidence be received or that whether it could only be invoked in case of requirement of formal proof of certain documents. The overt as well as underlying principle behind such powers of the appellate court is to do justice and prevent injustice.

The general rule regarding hearing of appeal is that the appellate court is called upon to decide the case on the basis of the evidence which was available before the Trial court. Section 391 is an exception to such a rule and like all exceptional powers under the Code, this power also requires to be exercised with caution and circumspection with the sole purpose of reaching the truth. it is important to emphasize that permitting additional evidence to be adduced does not ipso facto lead to the conclusion that the judgment of the trial Court is wrong especially when the documents have been obtained after the pronouncement of judgment.

In the case in hand, the applicant seeks to have such replies taken on record which have been obtained by him after the conclusion of the case. It is because of this that a preliminary exercise was done to see whether such documents would be necessary and relevant for deciding the appeal. It needs to be noted that in undertaking such an exercise we are expressing no definite opinion about the admissibility of such documents. The aspect of admissibility and reliance upon such documents or its probative value would be dealt with later.

The issues of these replies being neither primary or secondary evidence simplicitor would also be required to be dealt with. For the present, we have to analyze the relevance of such documents with the facts of the case and that also for the purpose of deciding the guilt or innocence of the appellant.

Documents namely P-1, P- 7, P-8, P-12 and P-27 appear to bear some possible link with the facts of the case and such facts if established/proved, that would have to be taken into consideration while deciding the appeal. The prosecution has filed a chart, indicating their response, but in respect of documents P-1, P-7, P-8, P-12 and P- 27, it would be more appropriate if reply with supporting affidavit is filed.

With respect to above mentioned replies/documents, we direct the State to give its response and file a reply on the relevancy etc. so that the application could be decided at the earliest before commencing with the hearing of the criminal appeal.

Reply with supporting affidavit will be filed within 3 weeks. Rejoinder, if any, will be filed within 2 weeks thereafter.

List on 25th of May, 2015.