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State vs Man Singh @ Mool Chand Sharma & Anr on 13 March, 2020

$~4.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 550/2019
STATE ….. Appellant
Through: Mr. Ravi Nayak, APP with Inspector
Mukesh Kumar, P.S. Govindpuri, for
the State.

versus

MAN SINGH @ MOOL CHAND SHARMA
ANR. ….. Respondents
Through: Mr. Nitish Chaudhary, Advocate for
Mr. Chetan Lokur, Advocate.

CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MR. JUSTICE RAJNISH BHATNAGAR

ORDER
% 13.03.2020

CRL.M.A. 43496/2019

1. By this application, the State seeks leave to lead additional evidence.
The respondents stand acquitted in the case arising out of FIR No. 282/2010
under Sections 302/ 394/ 411/ 34 IPC and Section 376 IPC, registered at PS
Govindpuri. Respondent No.1 had been charged for the offence under
Sections 302 IPC read with Section 34 IPC and Section 394 IPC read with
Section 34 IPC and Section 411 IPC and the amended charge under Section
376 IPC was also framed against him.

2. The submission of the appellant is that the respondent No. 1/ accused
was found to be using Mobile No. 9717189276, which was issued in his
name. The Customer Application Form (CAF) is Ex. PW-34/F and the CDR
thereof is Ex. PW-34/DB. The same shows that the said mobile number was
being used with an instrument having IMEI No. 862720000544437 (the last
digit being variable). The same shows that the last conversation that the
respondent No. 1/ accused had, was with the deceased on the mobile number
used by her, i.e. 9899780960 as per the CDR of Mobile No. 9899780960.
The said CDR is Ex. PW-23/H. The deceased was using another Mobile
No., i.e. 9654624353 vide CAF Ex. PW-23/A, in which the deceased had
disclosed her alternate Mobile No. as 9899780960.

3. The case of the prosecution is that the Mobile No. 9917543524 was
being used with an instrument having similar IMEI No.862720000544437
(the last digit being variable).

4. The further case of the prosecution is that there are calls made
between the deceased and the respondent/ accused from the said Mobile
No.9917543524. The mobile instrument having the aforesaid IMEI number
was seized from the respondent/ accused. The further case of the
prosecution is that the Cell ID chart of Mobile No. 9917543524 shows the
location of respondent No. 1 near the place of incident at the relevant point
of time.

5. Mr. Nayak submits that IO had collected CAF, CDR, Section 65B
Certificate and Cell/ Site ID from the concerned mobile company, i.e. Idea
Cellular Limited in respect of Mobile No. 9917543524, which apparently
was being used by respondent No. 1/ accused and the IO had also made the
said documents part of the charge-sheet and duly reflected the same in
Column No. 13 of the charge-sheet giving the particulars of the witnesses to
be examined. Mr.Hussain M. Zaidi, Nodal Officer, Idea Cellular Ltd. had
been cited as a witness to prove the aforesaid documents. In this regard,
Mr.Nayak has tendered before us the extract of the charge-sheet, which
enlists the list of witnesses. At Serial No. 11, Mr.Hussain M. Zaidi, Nodal
Officer, Idea Cellular Ltd. has cited to exhibit the call details, IMEI number
and location of Mobile No. 9917543524 along with the Certificate under
Section 65B of the Indian Evidence Act. Mr. Hussain M. Zaidi was also
examined as PW-25, however, inadvertently, only the CAF in respect of
Mobile No. 9917543524 was exhibited as Ex. PW-25/A and the other
documents filed with the charge-sheet, which he had to prove on record,
were inadvertently left out.

6. In this background, the appellant – with a view to further fortify its
case to show the circumstance that the respondent was present at the site of
the crime at the relevant time, wishes to exhibit the CDR, Section 65B
Certificate and the cell ID in respect of Mobile No. 9917543524 through the
concerned Nodal Officer of Idea Cellular Limited or any other officer
similarly placed or competent to depose in respect of the said documents.

7. Mr. Nayak submits that since the aforesaid documents form part of
the charge-sheet, no prejudice is caused to the respondent/ accused and such
a lapse should not come in the way of dispensation of justice. He places
reliance on Zahira Habibullah Sheikh Vs. State of Gujrat, (2004) 4SCC
158 wherein the Supreme Court observed as follows:

“47. Section 391 of the Code is another salutary provision
which clothes the courts with the power to effectively decide an
appeal. Though Section 386 envisages the normal and ordinary
manner and method of disposal of an appeal, yet it does not and
cannot be said to exhaustively enumerate the modes by which
alone the court can deal with an appeal. Section 391 is one
such exception to the ordinary rule and if the appellate court
considers additional evidence to be necessary, the provisions in
Section 386 and Section 391 have to be harmoniously
considered to enable the appeal to be considered and disposed
of also in the light of the additional evidence as well. For this
purpose it is open to the appellate court to call for further
evidence before the appeal is disposed of. The appellate court
can direct the taking up of further evidence in support of the
prosecution; a fortiori it is open to the court to direct that the
accused persons may also be given a chance of adducing
further evidence. Section 391 is in the nature of an exception to
the general rule and the powers under it must also be exercised
with great care, especially on behalf of the prosecution lest the
admission of additional evidence for the prosecution operates
in a manner prejudicial to the defence of the accused. The
primary object of Section 391 is the prevention of a guilty man’s
escape through some careless or ignorant proceedings before a
court or vindication of an innocent person wrongfully accused.

Where the court through some carelessness or ignorance has
omitted to record the circumstances essential to elucidation of
truth, the exercise of powers under Section 391 is desirable.

48. The legislative intent in enacting Section 391 appears to be
the empowerment of the appellate court to see that justice is
done between the prosecutor and the persons prosecuted and if
the appellate court finds that certain evidence is necessary in
order to enable it to give a correct and proper finding, it would
be justified in taking action under Section 391.

49. There is no restriction in the wording of Section 391 either
as to the nature of the evidence or that it is to be taken for the
prosecution only or that the provisions of the section are only to
be invoked when formal proof for the prosecution is necessary.
If the appellate court thinks that it is necessary in the interest of
justice to take additional evidence, it shall do so. There is
nothing in the provision limiting it to cases where there has
been merely some formal defect. The matter is one of discretion
of the appellate court. As reiterated supra, the ends of justice
are not satisfied only when the accused in a criminal case is
acquitted. The community acting through the State and the
Public Prosecutor is also entitled to justice. The cause of the
community deserves equal treatment at the hands of the court in
the discharge of its judicial functions.”

8. The application is opposed on behalf of the respondent accused.
Learned counsel for the respondent/ accused submits that there is nothing to
show that Mobile No. 9917543524 was registered in the name of the
respondent and, therefore, even if the appellant were permitted to lead the
additional evidence, the same would not carry their case any further. He
further submits that if the application were to be allowed, it would open
floodgates and the State would routinely move such applications to make up
the lacuna and shortcomings in the evidence led by the prosecution before
the Trial Court.

9. We have heard learned counsels and considered the rival submissions.
There is no dispute about the fact that the documents now sought to be
exhibited form part of the charge-sheet. These are not new documents.
Therefore, not only the accused had notice of the same but also the clear
intention of the State to exhibit the said documents is established. There
was no reason why the witness PW-25 was not put the question to exhibit
the aforesaid documents when the CAF in respect of Mobile
No.9917543524 was exhibited as PW-25/A. The only reason that we can
discern is that there was inadvertent lapse on the part of the Public
Prosecutor.

10. The case of the prosecution is based on circumstantial evidence and
the presence of the accused at the site of the crime at the relevant time, is a
relevant circumstance. It is this circumstance which is sought to be
established by the State by leading the additional evidence.

11. So far as the submission of learned counsel for the respondents that
Mobile No.9917543524 was not registered in the name of the accused is
concerned, the same is a matter of appreciation of evidence. In this regard,
we may only observe, at this stage, that the case of the prosecution is that the
said mobile number was being used on the same instrument on which the
other mobile number of the respondent – of which he is the registered
consumer, was being used.

12. Keeping in view all the aforesaid circumstances and in the light of the
observations made in Zahira Habibullah Sheikh (supra), we allow this
application and permit the State to lead the additional evidence, as aforesaid.

13. We direct the State to record the additional evidence within the next
two months. The Trial Court Record along with a copy of this order be sent
to the Trial Court forthwith to enable the recording of the additional
evidence. Once the additional evidence is recorded, the file be sent to this
Court.

14. The application stands disposed of in the aforesaid terms.

VIPIN SANGHI, J

RAJNISH BHATNAGAR, J
MARCH 13, 2020
B.S. Rohella

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