STATE OF RAJASTHAN Vs. VED PRAKASH

JUDGEMENT

(1.) This order will decide application filed by the State of Rajasthan under Section 391 read with section 311 of the Code of Criminal Procedure, 1973 for recording statements of (1) Raghuveer Singh, Assistant Sub-Inspector, (2) Raja, and (3) Babool, by way of additional evidence. This application has been moved in the midst of the hearing of the criminal death reference made by the trial court for the confirmation of the death sentence awarded to the accused in accordance with the provisions of section 366 of the Cr.P.C., 1973 and the appeal filed by the accused under Section 374 Cr.P.C., 1973 It is contended in the application that the fingerprint memo (Exhibit P-36) of the accused regarding the bottle (Exhibit P-6) was prepared by Raghuveer Singh, A.S.I. MOB Branch, Office of Superintendent of Police, Jhunjhunu, in presence of two independent witnesses, namely, (1) Raja S/o Jukkhe, by caste Ahirwar, aged 26 years, resident of village and post Kheerakachhar, District Chhatarpur, State of M.P., Police Station Sitsar Sadar, and (2) Babool S/o Shri Madhur, by caste Ahirwar, aged 28 years, resident of Sarvai, District Chhatarpur, State of M.P., Police Station Sitsar Sadar.

(2.) Mr. Anurag Sharma, learned Additional Advocate General, submitted that though the aforesaid document was exhibited by the Investigating Officer Mr. Madan Lal Jef (PW-17), but the afore named witness could not be produced because the Investigating Officer, while filing the charge-sheet, due to oversight or negligence, did not include their names in the calendar of witnesses. This court, by invoking the provision of Section 391 Cr.P.C., 1973 can even now direct the recording of statement of those witnesses as the appeal is merely a continuation of the trial. Hearing of the matter can be deferred till receipt of statements of those witnesses. For this purpose, the record of the trial court may also be sent back to the trial court and after recording the same, the trial court may remit the same to this court. Learned Additional Advocate General submitted that looking to the gravity of the offence and the bearing it would have on the matter, it was indeed a serious lapse on the part of the Investigating Officer. In this regard, he wrote a letter to the Director General of Police proposing strict action against the then Investigating Officer Mr. Madan Lal Jef (PW-17) as also against the Public Prosecutor. Relying on the judgment of the Supreme Court in State of Gujarat v. Mohanlal Jitamalji Porwal and Another - AIR 1987 SC 1321 and Zahira Habibulla H. Sheikh and Another v. State of Gujarat and Others - 2004(4) SCC 158 , learned Additional Advocate General, submitted that recording of such additional evidence in the facts of the case would be necessary as the appellate court, by virtue of specifically engrafted provision in section 391 of the Cr.P.C., 1973 has been empowered by the Parliament to do so. Reference is also made to Section 311 of the Cr.PC. to argue that any court, which also includes the appellate court or reference court, in the facts of the present case, may at any stage of inquiry, trial or other proceedings under the Cr.P.C., summon any person as the witness or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.

(3.) Learned Additional Advocate General argued that in the present case, Ved Prakash is accused of committing rape upon a female child, aged about six years, who happened to be the younger sister of his own wife, by taking her to a deserted place. Summoning of the witnesses, aforementioned, according to him, by order of the court invoking Section 311 read with section 391 of the Cr.P.C., 1973 would not tantamount to filling up the lacunae. In order to support this contention, learned Additional Advocate General relied on judgments of the Supreme Court in Mohan Lal Shamji Soni v. Union of India and Another - 1991 Supp. (1) SCC 271 and Rajendra Prasad v. Narcotic Cell, 1999(6) SCC 110.