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Judgment
The present application is filed by the applicant - original accused for the purpose of seeking
permission to produce the documents as referred to in
Para.10 as well as amended Para.10 of the application,
pending admission hearing and final disposal of the
Criminal Appeal.
This application appears to have been submitted
in the month of April,2014 which has previously been
ordered to be heard along with main Criminal Appeal,
by an order dated 11.6.2014. However, since hearing on
this application is insisted upon by learned
advocates, same was taken up for hearing.
Briefly stated, the case of the applicant is that
feeling aggrieved by and dissatisfied with the
judgment and order of conviction and sentence dated
20.11.2013 passed by the learned Additional Sessions
Judge, Jetpur in Sessions Case No.22 of 2012 (Old
Sessions Case No.73 of 2010), the applicant - original
accused has filed the Criminal Appeal which came to be
admitted by this Court. As a part of one of the
contentions raised by the applicant before the trial
court is the ground of alibi by asserting that the
applicant was not present at the scene of offence at
the relevant point of time and has been falsely
implicated in connection with the crime with an
ulterior motive. To justify this plea of alibi, it has
been averred by the applicant that on 11.6.2010 at
9.10 p.m., the applicant had gone from Navagadh
(Jetpur) to Surat in a Luxury Bus bearing registration
No.9494 (sleeping coach) of Vishal Travels,Jetpur on a
seat No.20 and had reached Surat on 12.6.2010 at 7.00
a.m. in the morning and had straightway gone to the
house of his sister.
3.1 It has further been contended that on 14.6.2010,
he had checked his balance in ATM machine of State
Bank of India, Kim Branch, District - Surat and
thereby, contended that apparently, he has been
falsely implicated in the alleged crime. To meet with
this submission, the applicant had produced a copy of
the ticket as well as a copy of the slip of ATM
machine of State Bank of India, Kim Branch, District -
Surat and also produced the details of the bank
account. It has also been contended that evidence of
Shri Shellar, Investigating Officer indicates that he
had made the investigation in this respect and
collected travelling ticket and the chart of tourist
from concerned transporter and for that process, he
had produced certain documents at Exh.288 and Exh.289,
the copies of which are also attached with this
application.
3.2 It has further been contended in the application
that the applicant had gone from Jetpur to Surat on
11.6.2010 at 9.00 p.m. in the Luxury Bus of Vishal
Travells to drop his nephew, Tarang, at Surat and
reached there at 7.00 a.m. on the next day and upto
16.6.2010 he remained at Surat and it is only after
receiving telephonic message from his father, the
applicant had returned back to Jetpur. This
circumstance clearly indicates, as stated by the
applicant, that with an ulterior motive and malafide
intention, he has been falsely involved by the
complainant and his companion. The defence of the
applicant has not been properly appreciated and taken
into consideration by the Trial Court nor any concrete
material is produced by the prosecution regarding this
defence. Even the order of the Trial Court is a non-
speaking order, so far as it pertains to present
applicant.
3.3 In a further statement recorded under Section
313 of the Cr.P.C ., the applicant had explained
specifically that he was not present at the scene of
offence nor even in the Jetpur town on the day of
incident. Despite this, he has been wrongly proceeded
with in trail. Since the documents pertaining to this
go to the root of the case and establish innocence of
the applicant and the prosecution has not produced all
these materials at the time of trial, a request is
made by the applicant by way of this application to
permit him to produce the documents, as stated above.
3.4 Earlier, it appears that the application has
been presented in the month of April,2014. However, on
a subsequent occasion, it appears that the application
for seeking amendment in the present application was
submitted which was numbered as Criminal Misc.
Application No.11581 of 2017 and by way of an order
dated 5.5.2017, the said application appears to have
been granted. Pursuant to which, Para.10 of the
present application has been amended on 7.6.2017 and
it is in this premise the present application is
before us for consideration.
Mr.A.D.Shah, learned advocate for the applicant
has contended that additional evidence which is sought
to be produced is touching to the root of the
controversy and is clearly establishing that the
applicant - original accused has been wrongly
implicated in prosecution. Learned advocate has
submitted that these additional documents which are
sought to be produced are reflecting clearly that at
the relevant point of time when the offence is said to
have been committed, the applicant was not in Jetpur
town. He was at a far away place at Surat and these
documents which are sought to be relied upon and
requested to be produced are clearly establishing the
innocence of the applicant accused and, therefore,
looking to the importance of the documents which are
establishing the plea of alibi to a substantial
extent, the relief prayed for in the application may
kindly be granted.
4.1 Mr.A.D.Shah, learned advocate has pointed out
that the travelling ticket and the use of ATM machine
of State Bank of India, Kim Branch, is establishing
the factum of innocence of the applicant accused and
prove that applicant was not at scene of offence and
these documents of vital importance have not been
produced by the prosecution, though it was the duty on
the part of the prosecution to collect and produce the
same. Learned advocate has pointed out that even
during the course of recording of further statement
under Section 313 of the Cr.P.C ., this plea of alibi
was raised by the applicant accused and so much so
that one Ashokbhai Haribhai Vaghera had also submitted
an affidavit dated 21.6.2010 to indicate that either
on the night or of the morning of 13.6.2010, the
applicant was not present at Jetpur which is a place
of incident in question and, therefore, this is a fit
case in which, in the interest of justice the relief
sought for in the application under Section 391 of the
Cr.P.C . Deserve to be granted. The very object of
Section 391 of the Cr.P.C . permits the applicant to
submit this application which ordinarily to be
granted.
4.2 Mr.A.D.Shah, learned advocate has relied upon the
following decisions to meet with his request, which
will be dealt with at an appropriate stage in this
judgment :
(1) Ajay Kumar Garg v. Gaurav, reported in 2009 (O)
GLHEL-SC-43964.
(2) Rajeswar Prasad Misra v. The State of W.B. &
Another, reported in AIR 1965 SC 1887(1).
(3) Rambhau & Another v. State of Maharashtra,
reported in AIR 2001 SC 2120.
(4) Rajvinder Singh v. State of Haryana, reported in
(2016) 14 SCC 671.
(5) State (NCT of Delhi) v. Shiv Kumar Yadav & Anr .,
reported in (2016) 2 SCC 402.
4.5 After referring to these decisions, Mr.A.D.Shah,
learned advocate has contended specifically that
interest of justice demands that present application
deserves to be granted.
To oppose the stand taken by the learned advocate
for the applicant, Mr.Mitesh Amin, learned Public
Prosecutor, has vehemently contended that this plea of
alibi was very much available with the applicant at
the relevant point of time during the course of trial
which could have been availed of. While referring to
the statutory provision contained under Section 391 of
the Cr.P.C ., Mr.Mitesh Amin has contended that before
resorting to this statutory provision as a part of
condition precedent, one has to first make out a
necessity of adducing evidence and necessity is the
forefront issue. Learned Public Prosecutor has pointed
out that from the beginning right from the day of
seeking anticipatory bail, the applicant was conscious
about the fact what was to be to be brought on record
to justify his absence from the scene of offence.
Still, this plea of alibi appears to have not been
conveniently set-forth wholeheartedly during the
course of trial. Learned Public Prosecutor has pointed
out that two documentary evidences have been produced
by way of Exh.288 and Exh.289 which are reflecting on
paper-book compilation at Page Nos.1345 and 1346,
respectively which is the register of Vishal Travels
and this piece of evidence is primary evidence itself
and same has been dealt with and findings have also
been arrived at which are very much reflecting from
the order and, therefore, to permit at this stage to
raise a plea of alibi, would frustrate the very full-
fledged adjudication of the trial which is otherwise
just and proper.
5.1 Mr.Mitesh Amin, learned Public Prosecutor has
pointed out that the incident in question has occurred
on 13.6.2010 and, therefore, half-hearted plea was
taken up during the course of trial so as to see that
if ultimately he is saved from alibi, he can test this
plea by referring to Section 391 of the Cr.P.C . by way
of present application and, therefore, requested now
to allow the applicant to produce few documents
mentioned in the application along with the affidavit
of person, the applicant intends to put this material
as a disguise to retrial of the case and, therefore,
such a design on the part of the applicant may not be
allowed to be encouraged.
5.2 Mr.Mitesh Amin, learned Public Prosecutor, has
vehemently contended that even when the further
statement was recorded, the applicant has not
explained the circumstance in detail nor has produced
any material, though from day one the applicant was
mindful of this fact nor has examined any person from
Vishal Travels nor has even chosen to examine
Ashokbhai, who has now come forward to support by way
of an affidavit. Learned Public Prosecutor has pointed
out that by virtue of the statutory provisions
contained under Sections 11 and Section 106 of the
Evidence Act, a duty is cast upon the accused to
establish his defence and such burden ought to have
been discharged by the applicant - accused by setting
up his defence. Learned Public Prosecutor has pointed
out that Section 391 of the Cr.P.C ., no doubt, is
permitting to submit the additional evidence, but
party who is inclined to avail such benefit, has to
make out a case and he cannot selectively produce some
part of the documents, discharge partially the burden
and then, wait for a convenient time so as to resort
to remand and retrial of the case and, therefore, such
a design may not be allowed to be operated and,
therefore, application deserves to be dismissed.
Mr.A.D.Shah, learned advocate for the applicant,
in rejoinder, has submitted that this is not a case
where important evidence was not projected
deliberately by way of defence from the beginning. On
the contrary, at the relevant point of time, the
evidence was not in existence and, therefore, to
unearth the truth, such evidence deserves to be
allowed by way of additional evidence. Learned
advocate for the applicant has also pointed out that
during the course of investigation, it was
specifically pointed out that though it was incumbent
on the part of the Investigating Officer to examine
this angle, no steps have been taken and, therefore,
even if by mistake the defence has not produced such
material, the Court has to allow the applicant to
produce this additional evidence so as to arrive at a
just decision. No other submissions have been made.
Mr.Pravin S. Gondaliya, learned advocate
appearing for the original complainant, has adopted
almost similar line on which learned Public Prosecutor
has opposed the application and has submitted that no
such plea at this stage be allowed. Learned advocate
has further contended that looking to the wordings of
the statutory provisions of Section 391 of the
Cr.P.C ., the prayer at this stage may not possible to
be acceded to as yet the appeal proceedings have not
commenced and if ultimately during the course of
adjudication of appeal, it is found expedient then
only the application can be considered and, therefore,
Mr.Gondaliya has submitted that this is not a stage
where such request may be permitted. Learned advocate
has, therefore, submitted that when this application
is ordered to be heard along with the main appeal by
way of an order dated 11.6.2014, the application may
not be given any preference at this stage and thereby,
has requested the Court to dismiss the application,
being devoid of merits.
Having heard the learned advocates appearing for
the respective parties and having considered the rival
submissions and the material on record, we are of the
considered opinion that two main circumstances have
not been pointed out by either side to assist the
Court while dealing with an application under Section
391 of the Cr.P.C . at stage before the commencement of
the main Criminal Appeal itself.
It has been noticed by us that in this very
application, the coordinate Bench of this Court has,
on 11.6.2014, passed the following order :
"Rule. To be heard with main appeal."
Despite that fact, a request is pressed into
service when appeal proceedings have not been opened
up by the Court. In addition thereto, during the
course of dealing with the submission, we have come
across a decision of the Apex Court in the case of
Union of India v. Ibrahim Uddin & Anr ., reported in
(2012) 8 SCC 148, in which, in an almost similar
situation, the Court has observed that even if the
application for additional evidence is filed during
the pendency of appeal, the same has to be dealt with
and heard at time of final hearing of an appeal and
before taking up of an appeal, such kind of
applications are normally not to be entertained.
Following observations contained in Para.52, 53 and
85.7 of the said decision are not possible to be
ignored, hence reproduced hereinafter :
"52. Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored.
In the instant case, the application under Order XLI Rule 27 CPC was filed on
6.4.1998 and it was allowed on 28.4.1999 though the first appeal was heard and disposed of on 15.10.1999. In view of law referred to hereinabove, the order dated 28.4.1999 is just to be ignored.
85.7 The first appellate court committed a grave error in deciding the application under Order XLI Rule 27 CPC much prior to the hearing of the appeal. Thus, the order allowing the said application is liable to be ignored as the same had been passed in gross violation of the statutory requirement."
Though the aforesaid decision is related to civil
proceedings, but as held by the Apex Court the analogy
on the issue of leading additional evidence is also
similar to that of Order 41 Rule 27 of the CPC and,
therefore, when such is the situation prevailing on
record, we deem it appropriate not to accept the
application.
Yet another decision delivered by the Apex Court
in the case of Rambhau & Anr. v. State of
Maharashtra, reported in AIR 2001 SC 2120, is taken
into consideration while arriving at an opinion not to
accept the application at this stage of the
proceedings. Relevant observations of the said
decision are in Para.4 which is quoted, thus;
"4. 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 sub serve 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 C.P.Code. "
In the aforesaid premise, therefore, we are of
the considered opinion that before opening of an
appeal for final hearing, at this stage to opine
anything on the issue of additional evidence would be
a premature exercise at our end and since at this
stage, we are of the considered view that though the
application is pressed into service in view of
aforesaid proposition of law, we are not in a
position to accept the same. We refrain ourselves from
dealing with the contentions raised by the respective
sides in detail and, therefore, we deem it appropriate
not to examine the merit of the submissions, leaving
it open to the learned advocate for the applicant to
submit an appropriate application at an appropriate
stage of the main proceedings of the appeal. Hence, we
are not inclined to entertain the application at this
stage of the proceedings. Accordingly, the same is
hereby dismissed. Rule is discharged.