Manohar Lal Gupta vs State Of U.P. And Anr
2021 Latest Caselaw 3882 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 76
 

 
Case :- APPLICATION U/S 482 No. - 24032 of 2018
 

 
Applicant :- Manohar Lal Gupta
 
Opposite Party :- State Of U.P. And Anr
 
Counsel for Applicant :- Nirvikar Gupta,Ishwar Chandra Tyagi
 
Counsel for Opposite Party :- G.A.,Manish Kumar Pandey
 

 
Hon'ble Dinesh Kumar Singh-I,J.

Heard Sri Nirvikar Gupta, learned counsel for the applicant, Sri Manish Kumar Pandey, learned counsel for the opposite party no. 2 and Sri G. P. Singh, learned A.G.A. for the State and perused the record.

It has been prayed by the present application that order dated 11.05.2018 be quashed which has been passed by the Additional District & Session Judge, Nagina (Bijnor) rejecting the application of the applicant moved under Section 391 Cr.P.C. in Criminal Appeal No. 28 of 2016; (Manohar Lal Gupta and Another Vs State of U.P.), simultaneously it has been prayed that a direction may be issued for examining the witness Mistri Abdul Salam cited in the charge sheet as witness no. 2) with a further prayer to stay further proceedings in the aforesaid case.

The submission of the learned counsel for the applicant is that in the impugned order, it is mentioned that 23 Kha application was moved from the side of the applicant under Section 391 Cr.P.C., with the averment that at the time of recording the evidence before the trial court from the side of prosecution two witnesses were prayed to be summoned i.e. Mahendra @ Banarasi and Abdul Salam but it came to light during trial that witness Mahendra @ Banarasi had died and the other witness was not presented because many time summons had been issued to him and also under Section 311 Cr.P.C., several applications were moved for examination of Abdul Salam but his statement could not be recorded and the case was decided by the trial court only on the basis of statement of injured witness Omveer. The witness Abdul Salam would have been an important witness in this case in order to help the court to reach on right conclusion and therefore, the said witness ought to have been summoned which has not been done in this case, therefore, it was prayed that the appellate court should summon the said witness to arrive on right conclusion at the appellate stage. The said witness is sill alive and could be summoned by this Court. The trial court has further recorded in the impugned order that 25Kha objection was filed from the side of opposite party no. 2 in which it was mentioned that it was prerogative of the prosecution to decide as to which witness it wants to examine and how many witnesses are to be examined and hence, the prosecution cannot be directed to examine any particular witness. After having considered the arguments of both the sides, the appellate court below has recorded that it is apparent from the record that the trial in this case has begun on the police report/charge sheet in which Dharamveer Singh, Abdul Salam, Mahendra alias Banarasi, HCP Vijay Bahadur Singh, Dr. R. K. Ambist and SI S. P. Singh were shown prosecution witnesses. From the side of prosecution, injured Omveer Singh has been examined as PW1, SI S.P. Singh has been examined as PW2, M. N. Multani, Chief Pharmacist, Samudayik Swasthya Kendra, Nagina was examined as PW3. The trial court had given various opportunities to prosecution to examine the witnesses from their side and thereafter on 02.06.2008, the opportunity to adduce evidence was closed from the side of prosecution and the case was listed for statement of accused under Section 313 Cr.P.C. on 06.06.2008. Prior to 02.06.2018, the prosecution had examined only two witnesses PW1 & PW2. On 06.06.2008, from the side of prosecution one application under Section 311 Cr.P.C. was given stating that chief pharmacist was present in the court and therefore permission was given for his cross-examination, the said application was allowed and then statement of pharmacist was recorded as PW3 and thereafter when no other witness had appeared, the evidence of prosecution was closed and for recording the statement of accused under Section 313 Cr.P.C., 11.06.2018 was fixed. Thereafter, from the side of injured/victim application no. 63B was given which was rejected by the trial court vide order dated 01.07.2008. Thereafter, on 26.09.2012 the statement of the accused under Section 313 Cr.P.C. were recorded who stated they would like to give evidence in their defence and thereafter the judgment was pronounced on 08.07.2016. From this, the appellate court has concluded that the applicant accused had sufficient opportunity in the last four years to examine the witnesses of prosecution as a defence witness who were not got examined from the side of prosecution but the same was not done and therefore, the trial court has held the accused guilty under Section 323 & 326 of I.P.C., against which an appeal has been filed. It is further recorded in the impugned order that the present application has been moved only with a view to delaying the disposal of the appeal because there was no specific reason given as to why the said witness Abdul Salam should now be got examined and therefore accordingly, the said application 23Kha has been rejected.

The main argument made by the learned counsel for the applicant is that under Section 391 Cr.P.C., it is provided that 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 a Magistrate. In the present case, he has stated that the statement of Abdul Salam is very important for just determination of the case because it was at his shop that the occurrence had taken place and he was the only independent witness of this case who could have give correct version of the occurrence. The other witness cross-examined by the prosecution in this case is injured witness only, whose statement ought to have been corroborated by the independent witness which has not been done in this case. Thereafter, he has shown various infirmities in the charge framed by the trial court on 20.08.1996, which is annexed at page no. 41 of the paper book and has stated that these mistakes ought have resulted in judgment being vitiated. He has drawn attention to applications earlier moved by prosecution side which are annexed at page no. 80 & 83. In the application annexed at page no. 80 of the paper book, prayer was made for summoning Dr. R. K. Ambar, CHC Vahni, Lakhimpur Khiri, Mahendra alias Banarasi and Abdul Salam and by application dated 23.06.2015, prayer was made for summoning Mahendra @ Banarasi and Abdul Salam, Radiologist and both these applications were disposed of by the court of Additional C.J.M./trial court vide order dated 31.07.2015 recording therein that the present case is one of the oldest cases, pending in the court, of the year 1991 and if in case, the application under Section 311 Cr.P.C. was allowed that would delay the disposal of the said case. It is also recorded that the Additional Public Prosecutor has not made it clear as to under what circumstances these witnesses could not be got examined by him and as to what was the necessity now to examine them and it was held that the said applications were moved in order to delay the disposal of this case and accordingly the application 83B was rejected.

After having drawn attention to this order, it is argued that the sole ground of the rejection was delay which should not have been a ground for rejecting the application of prosecution for just disposal of this case. Further it is argued by the learned counsel for the applicant that there was no allegation against the accused applicant to have made assault upon the victim as it was the co-accused who had assaulted upon him and yet he has been held guilty. Therefore, the impugned order deserves to be set aside and direction is required to be issued to the appellate court below to take evidence of witness Abdul Salam. The said argument has been vehemently opposed by the learned counsel for the opposite party no. 2 by saying that the summoning of the said witness Abdul Salam who was prayed to be summoned by the prosecution before the trial court was being thoroughly opposed by the learned counsel for the applicant before the trial court by moving objection 84B in which it was mentioned by him that the said application deserved to be dismissed because the prosecution had been given enough opportunity. On the other hand, now the applicant who earlier had opposed the summoning of said witness, is praying for summoning the said witness which is a contrary stand which should not be allowed. It is also argued that any lacuna in the charge would not vitiate the judgment unless it is proved by the defence that some prejudice had been caused to the accused by that. It is also to be noted in this case even if the applicant/accused has not been assigned direct role causing assault on the victim, the charge has been levelled against him with the aid of Section 34 of I.P.C., therefore, it cannot be said that there was infirmity in the charge framed against the accused applicant. As regards, innocence of the accused applicant, the same can be decided only by the appellate court after a fresh appraisal before the trial court. Further it is argued that accused applicant should have examined the said witness in defence for which opportunity was given by the trial court to him but the accused failed to avail the said opportunity and the invocation of Section 391 Cr.P.C. cannot be made for negligence or latches made on the part of the accused and in view of this the prayer of the applicant deserves to be rejected.

I have heard the arguments of both the sides and am of the view that it is apparent from the arguments from both the sides as well as evidence on record that the trial court had given sufficient opportunity to the prosecution to examine the witnesses including the present witness i.e. Abdul Salam to be examined from the side of prosecution but when he could not be produced before the trial court, the trial court had no option but to close the evidence and it is also brought on record that it was the accused applicant who was opposing the said application of prosecution summoning the additional evidence under Section 311 Cr.P.C. and now to the contrary of that he is himself pressing for summoning that witness at appellate stage. It is also to be noted here that independent witness need not necessarily be examined, in case there is evidence of an injured witness. In the present case there is an injured witness, on the basis of statement of whom, the trial court has come to the conclusion that the accused was guilty of the commission of offence, therefore, the appellate court now has an opportunity to make appraisal all afresh again and reach the conclusion whether the approach of trial court in holding the accused guilty was correct or not. So far as the the summoning of the said witness under Section 391 Cr.P.C., I find that primary object of this Section is to empower the Court to see that justice is done between the prosecutor and the person prosecuted, and if appellate court finds that certain evidence is necessary in order to enable it to give a correct finding, it would be justified in taking action under this Section. This Section is not intended to remedy the negligence or latches of the prosecution, nor should it be invoked to give prosecution a second chance of proving their case. However, where by some oversight or some difficulty, some evidence was not produced, an appellate court might be asked to send the case back for taking such evidence. Where there were ample time for prosecution to deal with every possible point in the case and it failed to establish the essential part thereof, this Section should not be utilized. Its aim is prevention of guilty man's escape through some careless or ignorant proceedings before a court or vindication of a innocent person wrongfully made accused. Where the Court through some carelessness or ignorance has omitted to record the circumstances essential for elucidation of truth, exercise of power under Section 391 Cr.P.C. is desirable. It is apparent that it is the court's prerogative and not anybody else's to invoke this provision and in this case I find that the court below appears to have rightly invoked its power by not summoning the witness Abdul Salam.

I find no infirmity in the impugned order and the same is upheld and the prayer for setting aside the order dated is refused.

Accordingly, this application is rejected.

Order Date :- 18.3.2021

VPS