TOKH RAM Vs. STATE DELHI ADMINISTRATION

JUDGEMENT

(1.) The facts giving rise to this revision petition against order dated 23rd November, 1981 of an Additional Sessions Judge in brief are thatJai Narain and Nand Kishore, respondents 2 and 3 (hereinafter referred as the complainants) instituted a complaint dated 7th of April, 1975 against the petitioner) for his prosecution under Section 420 IPC. It was contended that the petitioner had sold a plot of land bearing No. 18 measuring 213 sq. yards, forming part of khasra No. 1181, situated at village Burari (Delhi) to them vide registered sale deed dated 3rd of May, 1972 and in order to inspire confidence in their mind as regard his title to the said land as bhumidar/owner he showed a certified copy of the judgment dated 12th of May, 1966 passed in his favour by the Court of Shri H.C.Gupta, Sub-Judge 1st Glass, Delhi, in Suit No. 213/65 whereby the petitioner was declared bhumidar/owner of the land in dispute. After about two years the complainants went to the spot but found S/Shri Asa Ram and others in actual physical possession of the land bearing khasra No. 1181. So they approached the petitioner and asked him to deliver actual physical possession. The petitioner put them off saying that proceedings relating to factum of possession were pending in Court of S.D.M. between him and Asa Ram etc. and he was expecting a favourable decision. However, in March, 1975 the Complainants came to know that even the said proceedings had been decided in favour of Shri Asa Ram and others and they were declared to be in actual physical possession of the land in question. On further probe it transpired that the petitioner was neither bhumidar/owner nor was he in possession of the land in dispute at the time when he proposed to sell the same to the complainants and, in fact, the decree for declaration passed in his favour by the Court of H.C. Gupta had been set aside on appeal and the suit was ultimately dismissed by the trial court even before the sale of the plot in question by the petitioner to them.

(2.) During the course of preliminary enquiry under Section 202, Code of Criminal Procedure, 1973 (for short the Code) the complainants placed on the record certified copies of (i) judgment dated 12th of May, 1966 ofShri H.G. Gupta, Ex. Public Witness 3/A, (ii) judgment dated 30th of September, 1967 of the Senior Sub-Judge vide which the aforesaid judgment ofShri Gupta was set aside and the case was remanded to the trial court for a fresh trial, Ex. PW 3/B and (iii) order dated 21st of April, 1970 of Shri Gianinder Singh, Sub- Judge 1st Class, dismissing the suit as having been withdrawn with liberty to institute a fresh suit on the same cause of action. Ex. Public Witness 3/G. The petitioner was summoned vide order dated 10th of August, 1978 to stand trial on a charge under Section 415/420 IPC. Eventually he was convicted of the aforesaid offence by the Metropolitan Magistrate on 11th of March, 1981. The petitioner went in appeal against his conviction and sencence and arguments were addressed by both the parties before the learned Additional Sessions Judge on 18th of November, 1981 when the judgment was reserved. However on 20th of November, 1981 the complainants moved an application stating that the aforesaid documents Ex. Public Witness 3/A, Public Witness 3/B and Public Witness 3/G which had been tendered in evidence and were exhibited during the course of preliminary enquiry were not formally tendered in evidence at the stage of trial by oversight inadvertence. So a prayer was made that the same be admitted in evidence either under Section 294 or Section 311 (Section 311 quoted wrongly) of the Code by way of additional evidence. The prayer was opposed by the petitioner on the ground that the application having been made after the conclusion of the arguments the Court should not entertain the same and that the complainants should not be permitted to fill up the lacuna in the prosecution evidence when they had ample opportunity to adduce their evidence during the course of trial. However, the learned Additional Sessions Judge vide impugned order while allowing the foresaid prayer of the complainants considered it necessary to remand the case. Hence, he accepted the appeal, set aside the conviction and sentence of the petitioner and remanded the case to the trial court with a direction that an opportunity be given to the complainants to formally prove the certified copies of the order/judgment Ex. Public Witness 3/A, Public Witness 3/B and Public Witness 3/G and then re-examine the petitioner under Section 313 of the Code with regard to the said evidence. He gave a further direction to the trial court to allow an opportunity to the petitioner to lead any defence evidence which he may like to adduce in view of the aforesjaid additional evidence of the complainants and then decide the case afresh.

(3.) The learned counsel for the petitioner has made a two-pronged attack on the order in question. In the first instance, he has urged with considerable vehemence that the powernder Section 391 to take additional evidence should not be exercised for the purpose of filling up gaps in the prosecution case when the necessary evidence was available to the prosecution at the trial and the complainants had full opportunity to adduce the same. The result of accepting such a prayer would naturally be to punish the accused for a fault which was not committed by him but by the prosecution itself. Thus, according to him, the impugned order directing admission of additional evidence is prejudicial to the petitioner and the discretion vesting in the appellate court has been improperly exercised. Reliance in this context has been placed by him on a number of reported decisions of various High Courts as also of the Supreme Court, namely, Ramananda Agarwalla and Another v. The State., AIR 1951 Calcutta 120 (FB), Bir Singh and Others v. State of Uttar Pradesh, AIR 1978 SC 59, Abinash Chandra Base v. Bimal Krishan Sen and Another, AIR 1963 SC 316, Kashmirn Singh v. State, AIR 1965 J&K. 37, JoginderSingh v. State of Punjab, 1975 Cr. L J. 1604, AshwaniKumar v. State of Haryana,1974 (81) PLR 241 and Bachan Singh v. State of Punjab, 1981 CLR 369. The gist of all these authorities no doubt is that additional evidence can be allowed only in very rare circumstances and it should never be admitted and allowed merely to fill up gaps left by prosecution in the case. Some of these authorities also emphasise that the careless conduct and non-application of mind on the part of the prosecution creating lacuna should not be permitted to be plugged at the appellate stage. Thus, according to the learned counsel for the petitioner, tlie documents in question were left out because of lack of appropriate interest and non-application of mind by counsel for the complainants and as such the question of inadvertence or oversight on their part does not arise.