Sonu Dahiya vs State The Govt. Of Nct Of Delhi
2015 Latest Caselaw 3994 Del

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*    IN THE HIGH COURT OF DELHI NEW DELHI

+       CRL.A.9/2015

%                                         Judgment dated 19.05.2015

SONU DAHIYA                                        ......Appellant
                     Through :    Mr. Siddharth Yadav, Advocate for Appellant

                                         Versus

STATE THE GOVT. OF NCT OF DELHI..........Respondent

Through : Mr. Feroz Khan Ghazi, APP for the State with Inspr.M.S. Dahiya, P.S. Vasant Kunj (South) CORAM:

HON'BLE MR. JUSTICE G.S. SISTANI HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

G.S. SISTANI, J (ORAL) CRL.M.A. 132/2015.

1. This application under Section 391 read with Section 482 Code of Criminal Procedure has been filed by the appellant praying for issuance of directions to the Investigating Officer of the case to produce the bank account statement of PW-4 (Aribam Kinghem Sharma) in respect of the account maintained with Standard Chartered Bank.

2. The facts relevant for the disposal of this application are that the appellant herein alongwith Suraj @ Sonu was sentenced to life imprisonment for the offence punishable under Section 302 of the Indian Penal Code (for short IPC) and rigorous imprisonment for 2 years for the offence punishable under Section 201 IPC. Appellant has preferred the present appeal against his conviction.

3. By the present application, Appellant has pleaded that prosecution has falsely shown recovery of Rs. 33,000/- as the amount that was allegedly taken out by the appellant by using an ATM card of the deceased.

4. Appellant has further stated that PW-4, Aribam Kinghem Sharma had given a cheque drawn on Standard Chartered Bank in the name of „Self‟ for Rs. 50,000/- on 07.02.2011 and the same was withdrawn by the appellant from Vasant Vihar Branch and out of the same Rs. 49,000/- were deposited by him in his account with Canara Bank later another „Self‟ cheque for Rs. 50,000/- was given to the applicant by PW-4, Aribam Kinghem Sharma on 09.02.2011 and the same was withdrawn by him from the account of PW-4 with Standard Chartered Bank and it was out of this amount, that sum of Rs. 33,000/- was deposited by the applicant in his account with Canara Bank. In this background, he has prayed for issuance of directions to the Investigating Officer of the case to produce the bank account statement of PW-4 (Aribam Kinghem Sharma) in respect of the account maintained with Standard Chartered Bank.

5. To fortify his submission, learned counsel for the Appellant has placed reliance on the judgment passed in Crl. Appeal 1091/2005 titled as Mohd. Hussain @ Julfikar Ali Vs The State (Govt of NCT) of Delhi, Crl.A. 384/2000 titled Pankaj Chaudhary Vs State (Govt of NCT of Delhi) and Dilip Premnarayan Tiwari Vs State of Maharashtra, 2010 (1) SCC.

6. Learned counsel for the State has opposed this application mainly on the ground that appellant had sufficient opportunity to produce the witnesses as well as material in his defense but he failed to do so.

7. We have heard learned counsel for the both parties.

8. Briefly stated, learned Trial Court has held the appellant herein along with Suraj @ Sonu guilty for causing death of deceased Bansidhar Patra. It was opined by the learned Trial Court that the deceased who was working

as a labour contractor, consumed alcohol which was laced with „Alpraquil‟ as a result of which the deceased lost his consciousness and thereafter, he was smothered to death. Further, to shield the identity of the deceased, the accused persons removed all his clothes. During the investigation, mobile phone and the ATM card of the deceased was found in the possession of the appellant. It was revealed from the investigation that a phone call was made by the appellant to the brother of the deceased on the night of the incident and there was a withdrawal of Rs 33,000/- from the ATM of the deceased which was deposited in the joint account of the appellant with his sister at Canara Bank.

9. Before dealing with the arguments of learned counsel for the Appellant, it would be useful to reproduce Section 391 (2) of the Code of Criminal Procedure.

"A) Section 391(2): This section contemplates a further inquiry by taking additional evidence when the conviction by the lower court has been based upon some evidence which might legally support it, but which in the opinion of the appellate court is not quite satisfactory.

B) Section 391(3) : It is an exception to the general rule and the power conferred by this provision must be exercised with great care, so that the reception of additional evidence for the prosecution may not operate in any manner prejudicial to the defense of the accused.

C) The power to take additional evidence in appeal has been vested to ensure that the concept of justice does not suffer, and "to rectify the irregularities".

D) Where the documents are already on record, the application of the accused for taking additional evidence obviously to delay the trial of the case and is rightly rejected as the set evidence could be filed before the trial court.

E) Where the witnesses, nor any attempt was made to file them before the trial court, the same cannot be admitted in evidence in the appellate court.

F) Affidavits of the prosecutrix or the witness which have the effect of demolishing the entire prosecution case cannot be received in evidence in appeal.

G) The appellate court cannot permit the production of the new documents in exercise of its powers under S. 391 Cr.P.C.

H) Section 391(8) : The object of this section is not to enable the prosecution to produce evidence at a later stage which could have been produced at the first Trial and fill up the lacuna left by it. Therefore an order allowing an application under this section must be set aside as it would tantamount to allowing the prosecution to reinvestigate the matter and adduce further evidence."

10. The law in this regard is well settled. The Court must exercise its jurisdiction with care and caution and only in cases where appellate court is satisfied that some evidence, which ought to have been brought on record, has been left out, the Court must satisfy itself that additional evidence is essential to prevent miscarriage of justice.

11. A reading of the above Section clearly stipulates that the power under Section 391 of the Code of Criminal Procedure needs to be exercised with great care. It is binding upon the Court that where the documents are already on record, the prayer for adducing additional evidence may be inferred as delaying the disposal of the case and in case of production of new documents, the Appellate Court cannot permit such ground as raised by the Appellant.

12. We have also gone through the Trial Court record. Learned Trial Court has also dealt with the issue in question extensively. It has come on

record that ATM was in use till 14.02.2011 despite the fact that deceased was killed on the intervening night of 10.02.2011/11.02.2011. The ATM cards were found in possession of accused Sonu Dhaiya (Appellant herein). The use of ATM cards by the accused persons and their pointing out of the ATM machines from where they withdrew the money by using the ATM card of the deceased itself strengthens the case of the prosecution.

13. It is relevant to point out that during the course of trial, accused Sonu Dahiya (appellant herein) did not opt to bring forth any evidence in his defence. He had a full run of trial to adduce evidence in this regard but he has not taken steps for leading additional evidence during the course of trial. An effort is being made to introduce new facts which is an afterthought and has been raised for the first time at the stage of appeal. The only inference which can be drawn is that the application has been made with an intention to delay the proceedings of the case. Moreover the judgments cited by the learned counsel for the appellant are only case specific and cannot be relied in this case.

14. In the case of Criminal Appeal Nos.710 to 712 of 2011 titled T.Velnadar Vs P.Ayyanathan, Hon‟ble Madras High Court has held that:-

"The exercise of power by the Appellate Court under Section 391 Cr.P.C. is one of discretion. It is true that the power of an Appellate Court to take additional evidence in Appeal is vested based on the view that the 'Concept of Justice' does not suffer and to rectify an irregularity, in the considered opinion of this Court. Undoubtedly, Section 391 Cr.P.C. is to be exercised with great care and circumspection so that the respond of additional evidence for prosecution may not operate in any manner detrimental to the interest of an accused, as opined by this Court."

15. In the case of Harijit Singh vs The State Of Punjab And Others AIR 2002 SC 3040, Hon‟ble Supreme Court has held that:-

"Powers under Section 391 Cr.P.C. are to be exercised and such testimony could be accepted only if the appellate court is satisfied for reasons on record that such a course should be adopted. It is also observed in this case that the necessity for additional evidence arises when the court feels that some evidence which ought to have been before it is not there or that some evidence has been left out or erroneously brought in none of these considerations would arise in the present case. There is, thus, no merit in the petition. The same is accordingly dismissed."

16. In the case of Y. Sreelatha @ Roja Vs V. Mukuchand Bothra Crl. A.

261/2000 passed on 25.01.2000, the Madras High Court has held as under:-

"While both these matters were taken up for final disposal and the arguments were heard, the accused/ appellant chose to file an application before this Court in Crl. M. P. No. 6640 of 2000 to permit her to adduce additional evidence under Section 391 Cr. P.C. pending appeal.

Under Section 391Cr. P.C., the appellant Court is empowers, if it thinks that the additional evidence is necessary, to record its reason and take such evidence it itself or direct it to be taken by the lower court.

In this case, in the application filed under Section 391 Cr. P.C., it is seen that this Court has been asked to permit the accused to adduce additional evidence by summoning various records relating to several criminal cases pending in various Criminal Courts and the records relating to the civil suits pending in City Civil Court and in the High Court.

Under those circumstances, the application in CRl.M.P. NO. 6440 of 2000 filed under Section 391Cr. P.C. is liable to be dismissed.

In view of the discussions made in the earlier paragraphs with regard to the merits of the appeal, the appeal against the conviction is also liable to be dismissed."

17. Under the facts and circumstances of the case in hand, we are of the view that it is not a fit case in which powers conferred under Section 391 of the Code of Criminal Procedure should be invoked. Consequently, the present application filed by the appellant for adducing additional evidence is dismissed. However his submission with regard to use of ATM of the deceased will be considered at the relevant stage. CRL.A.9/2015

18. List in due course.

G. S. SISTANI, J

SANGITA DHINGRA SEHGAL, J

MAY 19, 2015 sc