Himachal Pradesh High Court
Jitender Sharma vs State Of H.P on 27 September, 2024
Neutral Citation No. ( 2024:HHC:9309 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No. 28 of 2012
Reserved on: 06.08.2024
.
Date of Decision: 27.09.2024
Jitender Sharma ...Appellant
Versus
State of H.P. ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Appellant : Mr. Hemant Vaid, Advocate.
For the Respondent/State : Mr. Lokender Kutlehria,
Additional Advocate General.
Rakesh Kainthla, Judge
The present revision is directed against the judgment
passed by learned Sessions Judge, Shimla in Criminal Appeal No.
107-S/10 of 2009, vide which, the judgment passed by learned
Judicial Magistrate, First Class, Court No. IV, Shimla (learned
Trial Court) dated 07.05.2005 and order of sentence dated
09.11.2009 were upheld. (Parties shall hereinafter be referred to in
the same manner as they were arrayed before the learned Trial Court
for convenience).
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Neutral Citation No. ( 2024:HHC:9309 )
2. Briefly stated, the facts giving rise to the present
revision are that the police filed a charge sheet before the learned
Trial Court against the accused for the commission of offences
.
punishable under Sections 457 and 414 of the Indian Penal Code
(in short ‘IPC’). It was asserted that Chander Dutt Sharma (PW4)
made a statement (Ext. PW4/A) before Brijesh Sood (PW11) that
he (the informant) was posted as a Chowkidar with the Baljees
restaurant. He was on duty on the intervening night of
17/18.10.2004. He had bolted the shutters and the windows at
about 11:00 pm. He was sitting in the hall at about 3:45 am. The
lights of the sweet shop and counter were switched on. One
person tried to get away from the sweet shop. The informant
went to the sweet shop after hearing the noise. The person ran
upwards. Chander Dutt followed him. Safai Karamchari was
sleeping in one room and revealed that one person had gone
towards the Fascination Hall. Chander Dutt (PW4) and Ram
Singh (PW6) went to the Fascination Hall. They found Dhanpat
(PW9) and Sanjay Kumar (PW1) sleeping in the hall. They found
one person having concealed himself in the blanket. They
disclosed these facts to HC-Baldev Singh and Constable-Brij Lal,
who informed the police. The person revealed his name as
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Jitender Sharma. He was searched. He was found in possession of
two screwdrivers, plier and one mobile phone. The statement
(Ext. PW4/A) was sent to the police station, where FIR (Ext.
.
PW8/A) was recorded. Brijesh Sood conducted the investigation.
He seized the screwdrivers (Ext. PA and PB), mobile phone (Ext.
PD), and plier (Ext. PC) vide memo (Ext. PW4/B). He prepared the
site plan (Ext. PW11/A) and recorded the statements of witnesses
as per their version. The accused made a disclosure statement
that he had concealed jeans pants, jackets and other articles in
his room which could be got recovered by him. The statement
(Ext. PW3/A) was reduced into writing. The accused and the
police went to the room of the accused at Rana Cottage Jakhu and
recovered the articles. These were seized vide memo (Ext.
PW3/B). Deepak Mohan Sood (PW10) identified the articles to be
the stolen ones. The site plan (Ext. PW11/B) was prepared. The
articles were put in a carton and the carton was sealed with seal
‘A’. The seal impression (Ext. PW11/C) was taken on a separate
piece of cloth and the seal was handed over to Rajeev Sood (PW3)
after use. The photographs of the spot (Exts. P1 to P6 whose
negatives are Ext. P7 to P12) were taken. Chequebooks (Ext. P13 to
P15), and a copy of the insurance policy (Ext. P16) were recovered
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Neutral Citation No. ( 2024:HHC:9309 )
during the search of the room, which were seized vide memo
(Ext. PW3/B). The statements of the witnesses were recorded as
per their version and after the completion of the investigation,
.
the challan was prepared and it was presented before the Court.
3. Learned Trial Court charged the accused with the
commission of offences punishable under Sections 457 and 414
of IPC. The accused pleaded not guilty and claimed to be tried.
4.
The prosecution examined 11 witnesses to prove its
case. Sanjay Kumar (PW1), Chander Dutt Sharma (PW4), Het Ram
(PW5), Ram Singh (PW6), and Dhanpat (PW9) were the
employees of Baljeess restaurant who apprehended the accused.
HC Govind Ram (PW2) took photographs of the articles recovered
from the room of the accused. Rajeev Sood (PW3) and Sunil Dutt
(PW7) are the witnesses to the disclosure statement and the
recovery of various articles. ASI Purshottam Chand (PW8) signed
the FIR. Deepak Sood (PW10) identified the articles recovered
from the shop as the stolen articles. Brijesh Sood (PW11)
conducted the investigation.
5. The accused in his statement recorded under Section
313 of Cr.P.C. denied the prosecution case in its entirety. No
defence was sought to be adduced by the accused.
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6. The learned Trial Court held that the testimonies of
the prosecution witnesses duly corroborated each other. The
accused made a disclosure statement and got recovered various
.
articles which were identified as stolen property. Therefore, the
accused was convicted of the commission of offences punishable
under Sections 457 and 414 of IPC. He was sentenced to undergo
rigorous imprisonment for a period of three years each for the
commission of offences punishable under Sections 457 and 414
of IPC.
7. Being aggrieved from the judgment and order passed
by the learned Trial Court, an appeal was preferred, which was
decided by learned Sessions Judge, Shimla (learned Appellate
Court). Learned Appellate Court held that the learned Trial Court
had not considered the question of granting the benefit of the
Probation of Offenders Act or Section 360 of Cr.P.C. No reasons
were assigned for not doing so; hence, the matter was remitted
to the learned Trial Court with a direction to hear the parties on
the question of sentence and pass appropriate orders.
8. The learned Trial Court held that the convict was not
entitled to the benefit of the Probation of Offenders Act in view of
the gravity of the offence. Hence, the learned Trial Court
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sentenced the accused to undergo simple imprisonment for two
years and to pay a fine of ₹ 2,000/- for the commission of an
offence punishable under Section 457 of IPC and in default of
.
payment of the fine to further undergo simple imprisonment for
one year. The learned Trial Court also sentenced the accused to
undergo simple imprisonment for one year and pay a fine of ₹
1,000/- and in default of payment of the fine to further undergo
simple imprisonment for 15 days for the commission of an
offence punishable under Section 414 of IPC.
9. Being aggrieved from the Judgment and order passed
by the learned Trial Court, the accused filed an appeal before the
learned Sessions Judge (learned Appellate Court). Learned
Appellate Court concurred with the findings recorded by the
learned Trial Court that the testimonies of the witnesses
corroborated each other. The disclosure statement and the
consequent recovery were also proved. The accused was found in
possession of 4 mobile sets, 4 chargers, 7 SIM cards and 70
items. The non-examination of independent witnesses was not
sufficient to doubt the prosecution case. The presence of the
accused along with two screwdrivers and one plier was a strong
circumstance against him. There was no infirmity in the
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judgment and order passed by the learned Trial Court; hence, the
appeal was dismissed.
10. Being aggrieved from the judgments and order passed
.
by the learned Courts below, the accused has filed the present
revision asserting that the learned Courts below failed to
properly appreciate the material on record. It was wrongly held
that the prosecution had proved its case beyond reasonable doubt
for the commission of offences punishable under Sections 457
and 414 of IPC. The presence of the accused in the restaurant was
improbable because the doors and shutters were bolted from
inside and no person could have entered the restaurant unless
the doors were opened by some person. The defence version was
highly probable. No stolen property was recovered from the
possession of the petitioner/accused. A thief or a criminal would
not take the risk of entering the bed where the witnesses were
sleeping. The prosecution had suppressed the genesis of the
incident, which has affected the basic fabric of the prosecution
case. Police had planted 15 cases against the accused out of
which, the accused was acquitted in 12 cases. Once, he was
acquitted of the charge of theft and criminal trespass, he could
not have been convicted for the commission of the same
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offences. The Courts disbelieved the memo of recovery and the
disclosure statements. The learned Appellate Court had failed to
exercise the jurisdiction vested in it. The circumstances proved
.
against the petitioner/accused did not establish his guilt beyond
a reasonable doubt; therefore, it was prayed that the present
revision be allowed and the Judgment and order passed by
learned Courts below be set aside.
11.
r to
I have heard Mr. Hemant Vaid, learned counsel for the
petitioner/accused and Mr. Lokender Kutlehria, learned
Additional Advocate General, for the respondent/State.
12. Mr Hemant Vaid, learned counsel for the
petitioner/accused submitted that the accused had filed an
application under Section 391 read with Section 311 of Cr. P.C. for
leading the additional evidence. The learned Appellate Court had
taken up the application along with the appeal and erred in
dismissing the same. The evidence proposed to be led by the
appellant/accused was highly material and learned Appellate
Court erred in dismissing the application. Therefore, he prayed
that the matter be remanded to the learned Appellate Court with
a direction to decide the application as per the law. He submitted
in the alternative that the prosecution version was inherently
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improbable. As per the prosecution, the accused had concealed
himself in the blanket of the employees of the hotel. No person
would take the risk of being detected by concealing himself in the
.
blanket with the occupants of the premises where he intended to
commit the theft. The prosecution had not proved the theft in the
present case. Separate charge sheets were filed for committing
the theft but the accused was acquitted in those cases. He could
not have been convicted in the present case. Therefore, he prayed
that the present revision be allowed and the Judgment and order
passed by the learned Courts below be set aside.
13. Mr. Lokender Kutlehria, learned Additional Advocate
General, for the respondent/State supported the judgments and
order passed by learned Courts below and submitted that no
interference is required with the same.
14. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
15. It was laid down by the Hon’ble Supreme Court in
Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204:
(2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional
court is not an appellate jurisdiction and it can only rectify the
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Neutral Citation No. ( 2024:HHC:9309 )patent defect, errors of jurisdiction or the law. It was observed on
page 207: –
“10. Before adverting to the merits of the contentions, at
.
the outset, it is apt to mention that there are concurrent
findings of conviction arrived at by two courts after a
detailed appreciation of the material and evidence broughton record. The High Court in criminal revision against
conviction is not supposed to exercise the jurisdiction like
to the appellate court and the scope of interference in
revision is extremely narrow. Section 397 of the CriminalProcedure Code (in short “CrPC”) vests jurisdiction for the
purpose of satisfying itself or himself as to the
correctness, legality or propriety of any finding, sentence
or order, recorded or passed, and as to the regularity ofany proceedings of such inferior court. The object of the
provision is to set right a patent defect or an error of
jurisdiction or law. There has to be a well-founded error
which is to be determined on the merits of individual
cases. It is also well settled that while considering thesame, the Revisional Court does not dwell at length upon
the facts and evidence of the case to reverse those
findings.
16. This position was reiterated in State of Gujarat v.
Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294 wherein it was
observed:
“13. The power and jurisdiction of the Higher Court under
Section 397 Cr. P.C. which vests the court with the power
to call for and examine records of an inferior court is for
the purposes of satisfying itself as to the legality and
regularities of any proceeding or order made in a case. The
object of this provision is to set right a patent defect or an
error of jurisdiction or law or the perversity which has
crept into such proceedings. It would be apposite to refer
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Neutral Citation No. ( 2024:HHC:9309 )Chandra, (2012) 9 SCC 460 where the scope of Section 397
has been considered and succinctly explained as under:
“12. Section 397 of the Code vests the court with the power
to call for and examine the records of an inferior court for.
the purposes of satisfying itself as to the legality and
regularity of any proceedings or order made in a case. The
object of this provision is to set right a patent defect or an
error of jurisdiction or law. There has to be a well-foundederror and it may not be appropriate for the court to
scrutinise the orders, which upon the face of it bear a token
of careful consideration and appear to be in accordance with
the law. If one looks into the various judgments of thisCourt, it emerges that the revisional jurisdiction can be
invoked where the decisions under challenge are grossly
erroneous, there is no compliance with the provisions of
law, the finding recorded is based on no evidence, materialevidence is ignored or judicial discretion is exercised
arbitrarily or perversely. These are not exhaustive classes
but are merely indicative. Each case would have to be
determined on its own merits.
13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one and
cannot be exercised in a routine manner. One of the inbuiltrestrictions is that it should not be against an interim or
interlocutory order. The Court has to keep in mind that theexercise of revisional jurisdiction itself should not lead to
injustice ex-facie. Where the Court is dealing with thequestion as to whether the charge has been framed properly
and in accordance with law in a given case, it may be
reluctant to interfere in the exercise of its revisional
jurisdiction unless the case substantially falls within the
categories aforestated. Even framing of charge is a much-
advanced stage in the proceedings under the CrPC.”
17. The present revision has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
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18. It was submitted that learned First Appellate Court
erred in taking the application for hearing along with the main
.
appeal and the application should have been taken up separately.
This submission cannot be accepted. It was laid down by the
Karnataka High Court in Umesh Prabhu versus State, 2019 (0)
Supreme (Kar) 157 that an application for additional evidence has
separately.
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to be disposed of along with the main appeal and cannot be taken
“10. On close reading of the said paragraph, it has been
observed that the provisions of Section 391 of Cr.P.C., are
akin to Order 41 Rule 27 of CPC. If the same analysis is
applied in the present case, the trial Court ought to have
allowed to produce the said documents, thereafter instead
of deciding the application separately, it could have been
heard the appeal along with the said application and have
looked into the relevancy of the documents which are
produced and thereafter, the appeal as well as the
application for production of documents under Section 391
of Cr.P.C., could have been disposed.”
19. A similar view was taken in Dharmendra v. State of
M.P., 2006 SCC OnLine MP 26: (2006) 1 MP LJ 436: (2006) 4 CCR
350: 2006 Cri LR (MP) 216 wherein it was observed at page 438:
6. The Code of Criminal Procedure gives power to the
appellate Court to take additional evidence which for
reason to be recorded by the Court, it considers to be
necessary to pronounce the judgment. The additional
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Neutral Citation No. ( 2024:HHC:9309 )occasion of failure of justice. The additional evidence must
have some direct bearing on the facts of the case. The
opening words of section 391, Criminal Procedure Code
says that: —
“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 aMagistrate or when the Appellate Court is a High Court,
by a Court of Session or a Magistrate.”
7. These opening words clearly suggest that the
application moved under section 391, Criminal Procedure
Code should be considered by the Appellate Court while
dealing with the criminal appeal and when it comes to the
conclusion that this additional evidence is necessary, such
application can only be dealt with after going through the
entire record of the trial Court and after hearing both the
parties. Therefore, the wording of section 391, Criminal
Procedure Code suggests that the application moved under
this section should not be considered in isolation but
should be considered after hearing the parties on merits. If
after hearing parties on merits Court comes to the
conclusion that the additional evidence is unnecessary
then while deciding the appeal application moved under
section 391 Code of Criminal Procedure can be dismissed.
If such additional evidence appears necessary regarding
decision of the matter and without which the appeal
cannot be disposed of then such additional evidence may
be taken on record either by the Appellate Judge himself or
by the trial Court. The Appellate Judge may also remand
back the matter to the trial Court for the purpose of
recording additional evidence as provided under sub-
section (2) of the said section 391 therefore, the whole
scheme of section 391 suggests that like civil cases an
application for taking additional evidence on record under
section 391 of the Code of Criminal Procedure should also
be considering and disposed of after hearing the criminal
appeal on merits and such application should not be
disposed of in isolation without hearing the appeal on
merits because if such application is disposed of without
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hearing the appeal on merits then there may be cases of
failure of justice.
8. In the sixth edition of Sarkar on Criminal Procedure on
page 1048 it has been observed that an Appellate Court
cannot decide if additional evidence should be admitted
.
unless it has heard the appeal on merits. This opinion of
the learned author is based on the case of Varada Rajulu
Vol. 42 ILR Madras page 885 and appears to be the correct
view of the legal position.
20. This view was reiterated in Pramod Gupta v. State of
M.P., 2013 SCC OnLine MP 2239: ILR 2013 MP 984: (2013) 3 MP LJ
363. It was observed at page 987:
6. From a reading of the aforesaid provision, it is evident
that the opening words of sub-section (1) of Section 391
clearly suggest that the application moved under Section
391 of Cr.P.C. should be considered by the Appellate Court
while dealing with the criminal appeal and when it comes
to the conclusion that this additional evidence isnecessary, such application can only be dealt with after
going through the entire record of the Trial Court and after
hearing both the parties. Therefore, the provisions ofSection 391 of Cr.P.C. suggest that the application moved
under this section should not be considered in isolationbut should be considered after hearing the parties on
merits. If after hearing parties on merits, the Court ifcomes to the conclusion that the additional evidence is
unnecessary then while deciding the appeal, the
application moved under Section 391 CrPC can be
dismissed. If such additional evidence appears necessary
for rendering a decision on the matter and without which
the appeal cannot be disposed of, then such additional
evidence may be taken on record either by the Appellate
Judge himself or by the Trial Court. The Appellate Court
may also remand back the matter to the trial Court for the
purpose of recording additional evidence as provided
under subsection (2) of the said section 391 of Cr.P.C.
Therefore, the whole scheme of Section 391 of Cr.P.C.
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Neutral Citation No. ( 2024:HHC:9309 )
suggests that like civil cases an application for taking
additional evidence on record under Section 391 of Cr.P.C.
should also be considered and disposed of after hearing
the criminal appeal on merits and such application should
not be disposed of in isolation without hearing the appeal
.
on merits because if such applications are disposed of
without hearing the appeal on merits, then there may be
cases of failure of justice. (Dharmendra s/o Chandan
Singh v. State of M.P., (2006) 1 MP LJ 436 referred to).
21. Madras High Court also held in M. Nagarajan v. M.
Navarajan, 2020 SCC OnLine Mad 6451 that the application for
additional evidence has to be taken up with the main matter and
cannot be disposed of separately. It was observed:
“10. In Rambhau v. State of Maharashtra, CDJ 2001 SC 294
(2001) 4 SCC 759. the Hon’ble Supreme Court in para No. 4
has observed as follows: —
“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 withcaution and circumspection so as to meet the ends of
justice. Be it noted further that the doctrine of finality ofjudicial proceedings does not stand annulled or affected in
any way by reason of the exercise of power under Section391 since the same avoids a de novo trial. It is not to fill up
to 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 C.P. Code.”
11. From the aforesaid decision, it is clear that the
application filed under Section 391 of Cr.P.C., is akin to an
application filed under Order 41 Rule 27 of CPC. With
regard to the aforesaid position of law, there is no quarrel
among the parties because the learned counsel for both
parties relied upon the aforesaid decision.
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12. In Premier Automobiles Limited, Bombay v. Kabirunissa,
CDJ 1990 SC 518., during the pendency of the appeal before
the Appellate Court, an application for admitting
additional evidence under Order 41, Rule 27 of the Code of
Civil Procedure was filed by the appellants, which
.
remained undisposed of. Even while pronouncing its
judgment disposing of the appeal finally, the Appellate
Court did not advert to it. It was only after the case was
disposed of that the application for additional evidence
was rejected by a short order, observing that the
appellants had sufficient opportunity to produce the
documents in the trial Court, and it had failed to do so.
Under the said circumstances, the Hon’ble Supreme Court
has held that the Appellate Court will, in the first instance,
hear and dispose of the application under Order 41, Rule
27, Civil Procedure Code and only thereafter take up the
final hearing of the appeal.
13. In Eastern Equipments & Sales Limited v. ING. Yash
Kumar Khanna Appeal (Civil) No. 3178 of 2008 dated
30.04.2008, the Hon’ble Supreme Court has held that in
order to decide the pending appeal in which the
application under Order 41 Rule 27 of CPC was filed ought
to have been taken by the Appellate Court along with the
application for acceptance of additional evidence under
Order 41 Rule 27 of CPC.
14. A similar view was taken by the Hon’ble Supreme Court
in the subsequent judgment in Muzaffar Ali v. Dasaram,
Appeal (Civil) No. 85 of 2009 (Arising out of SLP(C) No.
6241 of 2008 dated 12.01.2009 wherein the Hon’ble
Supreme Court has directed the High Court, it decide the
Second Appeal along with the application under Order 41
Rule 27 of CPC on merits.
15. Though in Premier Automobiles Limited,
Bombay v. Kabirunissa, (cited supra) the Hon’ble Supreme
Court has directed the Appellate Court that in the first
instance, hear and dispose of the application under Order
41, Rule 27 of CPC and only thereafter take up the final
hearing of the appeal, in the subsequent decisions it has
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held that the application which was filed under Order 41,
Rule 27 of CPC shall be heard along with the main appeal.
16. In Brig. Sukhjeet Singh (Retd.) MVC v. The State of Uttar
Pradesh, CDJ 2019 SC 078., the Hon’ble Supreme Court has
.
not issued any guidelines as to whether the application
under Section 391 Cr.P.C., is to be heard and disposed of
independently or along with the main appeal. In that case,
considering the facts and circumstances of the case, the
Hon’ble Supreme Court has held that the Appellate Court
failed to exercise the power under Section 391 of Cr.P.C.,
properly. So the said decision will not help this Court to
decide the issue whether the application filed under
Section 391 of Cr.P.C., has to be disposed of independently
or not.
17. In K. Thakshinamoorthy v. The Inspector of Police,
SPE/CBI/ACB, Chennai, MP.(MD). No. 1 of 2011 in Crl.A.(MD).
No. 544 of 2007 dated 14.03.2012, (cited supra) also the
question as to whether the application which is filed under
Section 391 of Cr.P.C., has to be disposed of independently
or not did not arise. Hence, the said decision also will not
help the petitioner.
18. In Parasmal Jain v. M. Rajesh (Criminal Revision Case
Nos. 224 to 226 of 2015) dated 31.07.2015, also the question
as to whether the application filed under Section 391 of
Cr.P.C., has to be disposed of separately or not did not
arise.
19. In Ravichandran v. Paramasivam, 2013 SCC OnLine Mad
3828 : (2014) 3 CTC 421 this Court while dealing with the
application filed under Order 41 Rule 27 of CPC has held
that the said application shall be heard along with the
main appeal and if the Court comes to the conclusion that
the said application is liable to be dismissed, the Appellate
Court can dismiss the said application at the time of
pronouncement of the judgment in the appeal on merits.
Further, it was held that in case, the Court comes to the
conclusion that the application filed under Order 41 Rule
27 of CPC has to be allowed, then it has to pass a separate
order and thereafter follow the procedure contemplated
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under Order 41 Rule 28 of CPC for recording additional
evidence. Since the application which was filed under
Section 391 of Cr.P.C., is akin to the application filed under
Order 41 Rule 27 of CPC, the procedure which has been
prescribed by this Court
.
in Ravichandran v. Paramasivam (cited supra) can be
followed in this case also.
20. In Satishkumar v. Raj Kumar, (Criminal Revision No.
3714 of 2018 dated 14.02.2018) a similar question arose
before the Punjab – Haryana High Court wherein the said
High Court has observed as follows:–
“It is the contention of learned counsel for the petitioner
that an application for additional evidence under Section
391 Cr.P.C. was filed by the petitioner before the Appellate
Court which application has been ordered to be taken upalong with the main appeal at the time of final arguments.
Counsel contends that had the application under Section391 Cr.P.C. been considered and decided first and rejected,
the petitioner would be able to avail the remedy to
challenge the same before this Court. Because of theapplication is being ordered to be heard along with the
main appeal, the petitioner would lose that opportunity
and a chance to challenge the said order and, therefore,prejudice would be caused to the petitioner.
She, therefore, contends that the present petition be
allowed and the learned Appellate Court be directed to
consider and decide the application under Section
391 Cr.P.C. preferred by the petitioner for additionalevidence prior to taking up the main appeal for arguments.
Having considered the submissions made by learned
counsel for the petitioner and on going through the
provisions of Section 391 Cr.P.C., I find that there is no
mandate as such for deciding the application at an earlier
date than the one which is fixed by the Appellate Court for
final disposal of the appeal. That discretion has been given
to the Appellate Court to be exercised in the given facts and
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Neutral Citation No. ( 2024:HHC:9309 )merely because the petitioner apprehends that the
application for leading additional evidence preferred by
him under Section 391 Cr.P.C. would not be accepted. In any
case, the Appellate Court has directed the application
under Section 391 Cr.P.C. to be considered and decided at.
the time when the appeal is listed for arguments.
Obviously, in case the Appellate Court comes to a
conclusion that the application for additional evidence is to
be allowed as the evidence which is being sought to beproduced is required for a just and proper decision of the
case, the Court would take further appropriate steps. This
approach, in any case of the Appellate Court, appears to be
fully justified keeping in view the fact that when the case isopen for arguments, the Court would be aware of all the
details and evidence led by the parties before it.
It goes without saying that the application for additional
evidence has to be considered and decided prior to the final
appeal being decided or along with the main appeal itself.
The contention of the counsel for the petitioner, therefore,
cannot be accepted.
The order dated 06.11.2017 as passed by the learned
Additional Sessions Judge, Faridabad, cannot be faulted
with.
The present petition being devoid of merit, therefore,
stands dismissed.”
21. The aforesaid decision will squarely apply to the facts
of this case. Therefore, the discretion as has been
exercised by the Appellate Court cannot be faulted with,
merely because the petitioner apprehends that the
application for leading additional evidence preferred by
him under Section 391 Cr.P.C., would not be accepted. The
approach of the Appellate Court appears to be fully
justified keeping in view the fact that when the case is
open for arguments, the Court would be aware of all the
details and evidence led by the parties before it. Whether
the application for additional evidence has to be
considered and decided prior to the disposal of the appeal
or along with the main appeal is purely the discretion of
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the Appellate Court. In this case, the Appellate Court has
exercised its discretion and decided to take up the said
application along with the main appeal. This court does
not find any infirmity in the said order.”
.
22. Therefore, there is no infirmity in taking up the
application along with the main appeal.
23. It was submitted that the evidence was essential and
learned First Appellate Court erred in dismissing the application.
A perusal of the application filed under Section 391 read with
Section 311 shows that the application was filed for bringing on
record the statement made by Rajeev Sood and Sunil Dutt in
other cases. It was stated that their statements made in the
present case were contradictory to the statements recorded in
other cases and the statements in other cases were required to be
brought on record by way of additional evidence. It was not
mentioned under which provision of law, a subsequent
statement made by a person after the previous statement had
been made, would be relevant or admissible. The only provision
which allows the cross-examination regarding the statement
made by a witness is Section 145 of the Indian Evidence Act,
which enables the cross-examination regarding the previous
statement made in writing. Since the statement was not previous
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to the statement made in the present case and was subsequent
thereto; therefore, the same
cannot be brought on record by taking recourse to Section 145 of
.
the Indian Evidence Act. Similarly, Section 155(3) of the Indian
Evidence Act permits impeaching of the credit of the witness by
the proof of the former statement inconsistent with any part of
the statement, which is liable to be contradicted. Again, this
Section speaks about the former statement and not the
subsequent statement. Hence, the learned Appellate Court was
right in refusing to admit the additional evidence and it cannot
be said that the learned Appellate Court erred in any manner in
dismissing the application.
24. Informant Chander Dutt (PW4) stated that he was
posted as a Chowkidar in Baljees Restaurant in 1993. He was on
duty on the intervening night of 17/18.10.2004. He bolted the
shutters and the windows properly during the night. He was
sitting on the sofa at about 3:30 and 3:45 am when he heard some
noise. He saw a stranger. He looked for him and found Dhanpat
and Sanjay Kumar sleeping in the hall. The stranger was found
sleeping in their bed. He called the police officials. The stranger
revealed his name as Jitender Sharma, who was present in the
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Court. The police searched Jitender and found a screwdriver, a
plier and two mobile phones. The police also recorded his
statement (Ext. PW4/A) and seized the article found in
.
possession of Jitender vide Memo (Ext. PW4/B). He identified the
articles recovered during the search of the accused.
25. He stated in his cross-examination that 80-85 people
were employed in Baljees Restaurant. 25-30 people were present
during the night. 4 to 6 people are sleeping on every floor. He
woke up Ram Singh, Dhanpat, Sanjay, and Het Ram. Paras Ram
and Khub Chand also reached the spot subsequently. Usually, 20-
25 people sleep on the five floors of the building. He volunteered
to say that one staff member was getting married and the other
staff members had gone to attend his marriage. He was
discharging the duties from 8:00 pm to 8:00 am. He admitted
that the entrance of Baljees is located adjacent to Mall Road. He
usually sits near the counter but takes rounds during the night.
He locks the main shutter after bolting it from inside. No person
could enter the restaurant without his permission. A register is
maintained regarding the attendance, which was seized by the
police. He admitted that a plier, screwdrivers and mobile phones
were commonly available. He denied that these articles were
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available in the restaurant. There are rooms on the 4 th and 5th
floor, which are occupied by the people but these rooms were
vacant on the date of the incident. He is informed about the
.
occupancy. He denied that some people had visited the
restaurant to inquire about the room. He denied that a false case
was made against the accused.
26. Sanjay Kumar (PW1) corroborated his version. He
stated that he has been employed as a Masalchi in Baljees
Restaurant since October 2002. He was sleeping on the
intervening night of 17/18.10.2004. Somebody entered in the
blanket at about 3:40 am. Chander Sharma called him and said
that some person had concealed himself in the bedding. He woke
up and apprehended the person. Chowkidar called the police. He
identified the person who had concealed himself in the bed as the
accused present in the Court. The police recovered a plier,
screwdriver and mobile phone from the accused. The accused
revealed his name as Jitender on inquiry.
27. He stated in his cross-examination that he could not
know when the person entered inside his bed. The screwdrivers,
plier and mobile phone were carried by the accused in his hand.
The accused was lying towards the feet. He came to know about
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the presence of the person after Chander Dutt Sharma told him.
He could not tell the hand in which the plier etc. was held by the
accused. The accused showed the mobile phone to the police and
.
he saw the mobile phone at that time. The police reached the spot
at 3:30 am. He denied that no person had entered inside the bed
and a false case was made by the police against the accused.
28. Ram Singh (PW6) stated that he was sleeping on the
night of 17/18th October 2004. Chowkidar woke him up at about
4:00 am and enquired whether someone had visited the hall in
which he was sleeping. He replied that no one had entered the
hall. They looked and saw Sanjay and Dhanpat were sleeping.
They were asked to wake up. A stranger had concealed himself
between them. The police were called. The police searched the
stranger and recovered screwdrivers, plier and mobile phone.
The accused revealed his name as Jitender Sharma.
29. He stated in his cross-examination that the
chowkidar bolts all the doors and the windows. Nobody could
enter the restaurant without the permission of the chowkidar.
There is only one door to enter the restaurant. Chowkidar usually
sits on the door. He also takes a round of the premises. The
building consists of three storeys and it has three rooms for the
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stay of the visitors. 15-20 people on the staff were sleeping. He
was sleeping in one hall and two persons were sleeping in the
other hall. He was not aware whether the rooms were occupied or
.
not. He admitted that pliers etc. were commonly available. He
denied that the accused had visited the premises to get a room
and he had a scuffle due to which he was falsely implicated.
30. The statements of these witnesses corroborate each
other. The presence of the accused was not disputed in the cross-
examination of the witness; rather it was suggested that the
accused had visited the premises to take a room on rent. All the
witnesses denied this fact. A denied suggestion does not amount
to any proof and no advantage can be derived from the same. No
evidence was led to prove that the accused had visited the
premises to take the room on rent. The accused had also not
stated this fact in his statement recorded under Section 313 of
Cr.P.C. Therefore, this fact was not proved and the version of the
prosecution witnesses that the accused was found in the
restaurant with the screwdrivers, plier and mobile phone has to
be accepted as correct.
31. The testimonies of these witnesses are corroborated
by Dhanpat (PW9). He stated that he had been working as a
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Masalchi in Baljees Restaurant for five years. On the night of
17/18th October 2004, he and Sanjay were sleeping in the hall on
the floor. Ram Singh was sleeping in another room. Chander
.
Dutt-Chowkidar was sleeping in the lower hall then corrected to
say that Chander Dutt was on duty. At about 3:30-3:45 am,
Chander Dutt woke them up and told them that a thief had
entered the premises. They found that someone was sleeping
with them. Chowkidar revealed that one person went towards the
cash counter and ran upstairs after seeing the Chowkidar.
Therefore, Chowkidar was searching for him. They called the
police. They apprehended the stranger who revealed his name as
Jitender Sharma. A search of the accused was conducted.
Screwdrivers, plier and mobile phone were recovered from the
accused. He identified these articles in the Court.
32. He stated in his cross-examination that 20-25 people
were sleeping in the restaurant during the night. He volunteered
to say that they sleep on 4 floors. There is only one passage going
upstairs. He admitted that no one could enter the restaurant after
the main door was closed. He admitted that people stay in the
upper three rooms. However, those rooms were unoccupied on
the date of the incident. He admitted that Chowkidar discharges
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his duty at the main gate. Many times, the people of staff visit the
restaurant for a stay. He admitted that the articles recovered
from the accused were commonly available and they did not bear
.
any mark. He denied that the accused had an argument with the
Chowkidar and a false case was made by Chowkidar with his
connivance.
33. This witness has corroborated the statements of other
witnesses regarding Chowkidar waking them up and the
presence of the stranger in the bed. He also corroborated their
version regarding the recovery of plier, screwdriver and mobile
phone.
34. Brijesh Sood (PW11) stated that he was patrolling
along with other employees when he was informed by HC Baldev
that some person had entered Baljees Restaurant. He went to the
restaurant and found the employees and the accused in the
restaurant. He recorded the statement of Chander Dutt Sharma
(Ext. PW4/A) as per his version and sent it to the police station
where FIR (Ext. PW8/A) was registered. The search of the accused
was conducted. Two screwdrivers, one plier and one mobile
phone were recovered in the presence of Chander Dutt Sharma
and Het Ram. These were seized vide memo (Ext. PW4/B). The
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memo was signed by witnesses. He identified the recovered
articles. He stated in his cross-examination that Baljees
Restaurant does not have any room for a stay. He was not aware
.
that 4-5 rooms were available on the top floor of the building.
15-20 people were employed in the restaurant. He had made an
entry regarding his departure. He received information at about
4:00-4:15 am. He admitted that Baljees restaurant had one
entrance and the people had to use that entrance. Once, the
restaurant is closed, no one can enter without the permission of
the staff. He denied that the accused had visited the restaurant to
take the room on rent and he had an argument with Chowkidar
and the Chowkidar lodged a false complaint against the accused.
35. The statement of this witness also corroborates the
testimonies of other witnesses regarding the presence of the
accused on the premises of Baljees restaurant. The accused has
not denied his presence in his cross-examination as it was
suggested that the accused had entered the premises to take the
room on rent. It was laid down by the Hon’ble Supreme Court in
Balu Sudam Khalde v. State of Maharashtra, 2023 SCC OnLine SC
355 that the suggestion put to the witness can be taken into
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consideration while determining the innocence or guilt of the
accused. It was observed: –
“34. According to the learned counsel, such suggestions
.
could be a part of the defence strategy to impeach the
credibility of the witness. The proof of guilt required of the
prosecution does not depend on the suggestion made to awitness.
35. In Tarun Bora alias Alok Hazarika v. State of Assam
reported in 2002 Cri. LJ 4076, a three-judge Bench of this
Court was dealing with an appeal against the order passedby the Designated Court, Guwahati, in the TADA Sessions
case wherein the appellant was convicted under Section
365 of the IPC read with Section 3(1) and 3(5) of the
Terrorists and Disruptive Activities (Prevention) Act, 1987.
36. In the aforesaid case, this Court, while considering the
evidence on record took note of a suggestion which was
put to one of the witnesses and considering the reply given
by the witness to the suggestion put by the accused,arrived at the conclusion that the presence of the accused
was admitted. We quote with profit the following
observations made by this Court in paragraphs 15, 16 and
17 as under:
“15. The witness further stated that during the
assault, the assailant accused him of giving
information to the army about the United Liberation
Front of Assam (ULFA). He further stated that on thethird night, he was carried away blindfolded on a
bicycle to a different place and when his eyes were
unfolded, he could see his younger brother Kumud
Kakati (P.W.-2) and his wife Smt. Prema Kakati (P.W.-
3). The place was Duliapather, which is about 6-7 km.
away from his village Sakrahi. The witness identified
the appellant-Tarun Bora and stated that it was he
who took him in an ambassador car from the
residence of Nandeswar Bora on the date of the
incident.
16. In cross-examination the witness stated as under:
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“Accused-Tarun Bora did not blind my eyes nor he
assaulted me.”
17. This part of the cross-examination is suggestive of
the presence of accused Tarun Bora in the whole
.
episode. This will clearly suggest the presence of the
accused-Tarun Bora as admitted. The only denial is
the accused did not participate in blind-folding the
eyes of the witness nor assaulted him.”
37. In Rakesh Kumar alias Babli v. State of Haryana reported
in (1987) 2 SCC 34, this Court was dealing with an appeal
against the judgment of the High Court affirming the
order of the Sessions Judge whereby the appellant and
three other persons were convicted under Section 302 read
with Section 34 of the IPC. While re-appreciating the
evidence on record, this Court noticed that in the cross-
examination of PW 4, Sube Singh, a suggestion was made
with regard to the colour of the shirt worn by one of the
accused persons at the time of the incident. This Court
taking into consideration the nature of the suggestion put
by the defence and the reply arrived at the conclusion that
the presence of the accused namely Dharam Vir was
established on the spot at the time of occurrence. We quote
the following observations made by this Court in
paragraphs 8 and 9 as under:
“8. PW 3, Bhagat Singh, stated in his examination-
in-chief that he had identified the accused at the time
of occurrence. But curiously enough, he was not
cross-examined as to how and in what manner hecould identify the accused, as pointed out by the
learned Sessions Judge. No suggestion was also given
to him that the place was dark and that it was not
possible to identify the assailants of the deceased.
9. In his cross-examination, PW 4, Sube Singh, stated
that the accused Dharam Vir was wearing a shirt of
white colour. It was suggested to him on behalf of the
accused that Dharam Vir was wearing a shirt of cream
colour. In answer to that suggestion, PW 4 said: “It is
not correct that Dharam Vir accused was wearing a
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observed that the above suggestion at least proves the
presence of accused Dharam Vir, on the spot at the
time of occurrence.”
.
38. Thus, from the above, it is evident that the suggestion
made by the defence counsel to a witness in the cross-
examination if found to be incriminating in nature in any
manner would definitely bind the accused and the accused
cannot get away on the plea that his counsel had no
implied authority to make suggestions in the nature of
admissions against his client.
39. Any concession or admission of a fact by a defence
counsel would definitely be binding on his client, except
the concession on the point of law. As a legal proposition,
we cannot agree with the submission canvassed on behalf
of the appellants that an answer by a witness to a
suggestion made by the defence counsel in the cross-
examination does not deserve any value or utility if it
incriminates the accused in any manner.”
36. Het Ram (PW5) stated that the police searched the
accused on the night of 17/18th October 2004 at about 3:30-3:45
pm and recovered two screwdrivers, one plier and one mobile
phone, which were seized vide memo (Ext. PW4/B), which was
signed by him and chowkidar. He identified the accused and the
case property.
37. He stated in his cross-examination that he was
sleeping alone in the corner of a hall. He admitted that both the
restaurants had a common entrance and it was not posssible to
enter the premises without the permission of Chowkidar. The
building had three rooms but he was not aware how many rooms
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were occupied on that day. He admitted that the people visit the
premises during the night to take the rooms on rent. Memo was
prepared in the restaurant. 8-10 people were sleeping in the
.
room. He admitted that the articles are commonly available and
are also kept in the restaurant for the repair of gas cylinders etc.
38. It was submitted that the police had associated the
employees of the restaurant and no independent person was
appreciated, therefore, an adverse inference has to be drawn
against the prosecution. This submission cannot be accepted.
The incident had taken place inside the restaurant early in the
morning when even the inmates of the restaurant were sleeping.
The inmates of the restaurant would have been the best
witnesses to depose as to what transpired inside the restaurant.
It is the specific case of the prosecution that the doors and the
windows were bolted, therefore, no other person could have been
present inside the premises. It was suggested that there were
rooms, which were occupied by the people but the witnesses
categorically stated that rooms were vacant. Thus, no
independent person was present inside the premises and the
prosecution cannot be faulted for not associating any
independent witness.
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38. It was suggested that the mere recovery of the plier,
screwdriver and mobile phone would not help the prosecution
because these articles are commonly available. This submission
.
cannot be accepted. It was suggested to Het Ram that the pliers
and screwdrivers were kept in the restaurant for the work of gas
cylinders etc. which means that the pliers and screwdrivers were
available inside the restaurant. The accused has not given any
explanation for the availability of the plier and the screwdrivers;
hence, the prosecution’s version that these were stolen from the
restaurant has to be accepted as correct.
39. It was submitted that the prosecution version is
improbable because the accused is stated to have concealed
himself inside the blanket, which is contrary to normal
behaviour. This submission will not help the accused. The
accused admitted his presence inside the restaurant by
suggesting to the witnesses that he had entered the restaurant to
enquire about the room. This fact was not proved. Hence, the
prosecution case will not become doubtful because the accused is
stated to have concealed in the blanket. Further, when the staff of
the restaurant was searching for the accused, the blanket was the
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best place where he could have been mistaken for a staff member
and there is nothing improbable in it.
40. Brijesh Sood (PW11) stated that he interrogated the
.
accused and the accused made a disclosure statement that he had
concealed jeans pants, sweater, jackets, bags of Adidas, reebok,
powder, shampoo, C.D. Player, small T.V., Tubelights, etc. in his
room in Rana Cottage, Jhakhu which he could get recovered.
Memo (Ext. PW3/A) was prepared in the presence of Sunil Dutt
and Rajeev Sood. The accused put his signatures and the
witnesses also put their signatures. The accused led the police
party and the independent witnesses to Rana Cottage. He took
out the key kept on the window and opened the door. He
recovered the articles, which were seized vide memo (Ext.
PW3/B). Deepak Mohan Sood identified the articles as stolen
property. A memo and site plan were prepared and the articles
were seized. The photographs of the spot were taken.
41. He stated in his cross-examination that the accused
had rented the room. He did not know about the residence of the
owner of the room. He had not associated the owner as a witness
and he could not give any reason for the same. He had not
mentioned in the statement recorded under Section 27 of the
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Indian Evidence Act that the keys were taken from the window.
Deepak Mohan Sood had registered the FIR earlier to the
incident. He admitted that no articles were found stolen in the
.
present case.
42. Rajeev Sood (PW3) stated that he and Sunil Dutt
remained associated with the police during the investigation. The
accused made a disclosure statement in his presence, in which he
said that he could get the stolen articles recovered from his
house. The memo (Ext. PW3/A) was prepared, which was signed
by him and Sunil Dutt. Sweaters, Bags, T. Shirts, jackets, cream,
powder, shampoo, mobile phone, CD Player, tube light etc. were
found in the room which were seized via memo (Ext. PW3/B).
Deepak Mohan and Dinesh Mohan came to the spot and
identified the stolen articles. These were seized by the police. He
identified the chequebook and an LIC policy.
43. He stated in his cross-examination that he was
running a shop of books on Mall Road. Deepak Mohan was
running a shop of readymade garments on Mall Road. He knew
Deepak Mohan because he was a member of the shopkeeper
association. He and Sunil Dutt were walking on Mall Road at
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about 7:00 am. The police had apprehended the accused. He
denied that no recovery was effected from the accused.
44. Sunil Dutt (PW7) is the other witness to the recovery.
.
He stated that on 18.01.204 at about 6:30-7:00 am, he and Rajesh
were roaming on the mall road when they heard some noise.
They went towards the spot and found that one person was
apprehended who was being beaten. He was taken to the police
reporting room. The accused made a statement during his
custody that he could recover the stolen articles. He took them to
Rana Cottage. The accused took out the key after opening the
window. The other articles were found inside the hall. He and
Rajeev Sood signed the memo as witnesses. Deepak Mohan Sood
signed it as an identifier. He gave the details of the recovered
articles.
45. He stated in his cross-examination that his shop is
opposite the reporting room. They went to Jakhu after 7 pm.
There were 3-4 houses near Rana Cottage. No one was associated
with the police. He was not aware whether the family members of
the accused also resided with him. He admitted that the articles
are commonly available in the market. He knew Deepak Mohan
Sood who reached after 30 minutes of his arrival. He denied that
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no recovery was effected and all the documents were prepared in
the police station.
46. The statements of these witnesses corroborate each
.
other regarding the making of the disclosure statement by the
accused and the subsequent recovery of the articles in Rana
Cottage. Nothing was suggested to them in their cross-
examination that they were deposing falsely or they had any
motive to do so.
47. to
Deepak Sood (PW10) stated that he was called by
Rajeev Sood on 18/19.10.2004 to Rana Cottage. He went to Rana
Cottage where Rajeev Sood, Sunil Dutt and police were present
with the accused. He identified the stolen articles, which were
seized by the police vide memo (Ext. PW3/B). The accused had
kept the stolen articles in his room. He signed the memo as the
identifier.
48. He stated in his cross-examination that the police
had not demanded the bills from him. He has been running a
shop for about 30 years. He did not remember the colours of the
articles belonging to him. Some of the articles belonged to the
other shopkeepers. Brother, sister-in-law, father of the accused
and another person were present in the house. He did not know
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since when they were residing with the accused. Rajeev Sood and
Sunil Dutt were his neighbours. Rana Cottage has two or three
storeys. He remained on the spot for about one hour. He denied
.
that no articles were stolen and he was making a false statement.
49. The cross-examination of this witness does not show
that he has any enmity with the accused or any motive to falsely
implicate him. He identified the articles belonging to him out of
many articles recovered from the room. Had he been lying, he
would have identified all of the articles as stolen and the fact that
he had not done so shows that he is a truthful witness.
50. It was suggested to the prosecution witnesses that the
accused had gone to demand the room and he had an argument
with the Chowkidar, who falsely implicated the accused. This
suggestion is not believable. If the accused wanted a room , he
was a customer and Chowkidar would not have gained anything
by quarreling with the accused and thereafter, falsely implicating
him. There was no reason for quarrel if he wanted a room for
himself or any other person. Further, he was a resident of Rana
Cottage and had no reason to book the room. Even if, he wanted
to book the room, he would not have gone early in the morning
to do so. It is difficult to believe that everyone including the staff
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of the Baljees restaurant, shopkeepers and the police would have
conspired with the Chowkidar to falsely implicate the accused
simply because the Chowkidar quarrelled with the accused. This
.
submission is too far-fetched and cannot be accepted.
51. It was submitted that a person could not enter the
restaurant after the door and windows were bolted from the
inside; hence, the prosecution case is inherently suspect. This
submission cannot be accepted. The accused was seen and
apprehended inside the restaurant. How the accused managed to
enter inside the restaurant can only be explained by him and the
prosecution case cannot be discarded because the prosecution
has not explained the manner of entry of the accused.
52. It is not permissible for this Court to re-appreciate
the evidence while exercising the revisional jurisdiction. Both the
learned Courts below have concurrently found that the accused
was found inside the restaurant with the plier, screwdrivers and
mobile phones. They have also found that the accused had made
a disclosure statement and led the police and independent
persons to his room in Rana Cottage from where the recovery of
articles was effected and some of the articles were identified as
the stolen articles. There is no perversity in the appreciation of
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40
Neutral Citation No. ( 2024:HHC:9309 )
the evidence by learned Courts below and no interference is
required with these findings in the exercise of the revisional
jurisdiction.
.
53. Consequently, the present revision fails and the same
is dismissed.
54. Records be sent back forthwith. Pending applications,
if any, also stand disposed of.
27 September, 2024
th
r to (Rakesh Kainthla)
Judge
(saurav pathania)
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