Full Judgment Text
Bhagyawant
jud wp 112819.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1128 OF 2019
Shailesh Vinayak Chavan ]
Age 40 Years, Occ Business ]
Having address at Ish Chayya Society ]
Gavanipada, Nahur Road, Mulund, ]
(West), Mumbai. ] ...Petitioner
]
Versus ]
]
The State of Maharashtra ]
(Being represented by Mulund Police ]
Station) ] ...Respondent
Mr. H.V. Kanjalkar, for petitioner.
Mr. A.R. Patil, APP for State.
CORAM : S. S. SHINDE, J
th
DATE : 24 June 2019
JUDGMENT:
nd
1. This petition takes an exception to the impugned order dated 22
October 2018 passed on Exhibit “2” in Criminal Appeal No. 964 of 2018 by
Sessions Court, Mumbai. There is further prayer to direct the said Court to
recall Jagannath Shripti Pawar (PW 6) and allow the petitioner to cross
examine him on the point of omissions in the statements of Janardhan Lohar
(PW 5) and more specifically portions marked 'A', 'B' & 'C' as per provisions of
Section 391 of the Criminal Procedure Code (for short 'Cr.Pc'). In the
alternative, it is also prayed that, the petitioner may be permitted to record
further evidence of Jagannath Pawar (PW 6) and allow the petitioner to cross
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examine him on the point of omission in the statements of Janardhan Lohar
(PW 5).
2. The petitioner herein was tried in C.C. No. 376/P/2001 and Trial
Court relying upon the evidence of eye witnesses including injured witnesses
Keshav Vane (PW 1) & Mrs. Kusum Lohar (PW 6) coupled with the medical
evidence convicted the petitioner for the offence punishable under Section 324
of Indian Penal Code. Being aggrieved by the said judgment and order dated
23.11.2016, the petitioner filed Criminal Appeal No.964 of 2016 before the
rd
Sessions Court for Greater Bombay. In the said appeal the petitioner on 3 May
2016 preferred an application vide Exhibit2 under section 391 Cr.Pc for
recalling the investigating officer Janardhan Pawar (PW 6) in order to confront
him with the omissions and contradictions, which portion was marked in the
testimony of Janardhan Lohar (PW 5) at the stage of the trial. The said
application came to be rejected, hence the present petition.
3. Learned counsel appearing for the petitioner submits that, due to
inadvertence during the course of trial, the portions marked in the evidence of
Jnardhan Lohar (PW 5) have not been exhibited for not being confronted with
the investigating officer. The said factum also finds place in the judgment and
order passed by the learned Magistrate. It is submitted that the portion marked
'A', 'B', & 'C' in the testimony of Janardhan Lohar (PW 5) has been noticed by
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the learned Magistrate. If the evidence of Mr. Janardhan Lohar (PW 5) is
perused, it can be noticed that, there are formal errors in his testimony in so
far as his presence on the spot of incident is concerned. Mr. Janardhan Lohar
(PW 5) claims to be an eye witness and the omissions that have already been
made by him in his testimony go to the very root of the matter and therefore,
with at most importance, it is necessary to confront the IO Mr. Janardhan
Pawar (PW 6) with the portion marked 'A', 'B' and 'C' in the testimony of
Janardhan Lohar (PW 5) for adjudication of the Appeal pending before the
Sessions Court. It is submitted that the learned Metropolitan Magistrate while
passing impugned order fails to take into consideration the law settled by
Hon'ble Supreme Court as well as Bombay High Court especially dealing with
an application moved under section 391 Cr.Pc specially when it concerns with
curing technical and formal defects in recording of evidence. In support of
aforesaid submissions learned counsel appearing for the petitioner relied upon
ratio laid down in the case of Ashok Tshering Bhutia Vs. State of Sikkim
reported in CDJ 2011 SC 170, Rambhau Vs. State of Maharashtra, reported
in CDJ 2001 SC 294 & Babu Choudhary & Ors. Vs. The State of Bihar &
Ors. Reported in SCC Online Jhar 379: (2012) 3 AIR Jhar R 185: 2013 Cri
Lj (Noc 37) 14.
4. On the other hand learned APP submits that even if the evidence
of Janardhan Lohar (PW 5) is excluded from the consideration, there is
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evidence of Keshav Vane (PW 1) and Vijay Gujar (PW 2) who are injured
witnesses. It is submitted that, the medical evidence fully supports the
prosecution case and therefore, the Trial Court has rightly convicted the
petitioner. It is further submitted that, the provision of Section 391 Cr.Pc
cannot be invoked to fill up the lacuna as it is made clear by the Hon'ble
Supreme Court as well as various High Courts including in aforesaid reported
judgment relied upon by the learned counsel appearing for the petitioner.
5. Heard learned counsel appearing for the parties, with their able
assistance perused pleadings and grounds taken in the petition, annexures
thereto, impugned order and also reported judgments of Hon'ble Supreme
Court & High Court relied upon by the learned counsel appearing for the
petitioner. Admittedly, the petitioner during the course of trial did not file any
application praying therein to allow the petitioner to examine the investigating
officer in relation to portion marked 'A', 'B' & 'C' in the testimony of Janardhan
Lohar (PW 5). It further appears that, the Trial Court relying upon the
evidence of prosecution witnesses including injured witnesses Keshav Vane
(PW 1) and Vijay Gujar (PW 2) and coupled with the medical evidence
convicted the petitioner. At belated stage when the appeal is filed by the
petitioner, petitioner filed an application to allow him to confront investigating
officer so as to prove the omissions i.e. portion marked 'A', 'B' & 'C' in the
testimony of Janardhan Lohar (PW 5), such prayer by the petitioner is only to
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fill up the lacuna, and there was no attempt on his part to file such application
during the course of trial. It is true that in appropriate cases the Court can
invoke provisions of Section 391 Cr.Pc so as to cure errors, omissions,
irregularities however, the Hon'ble Supreme Court in the case of Ashok
Tshersing Bhutia Vs. State of Sikkim in para 15 held that:
Additional Evidence:
15. Additional evidence at appellate stage is
permissible, in case of a failure of justice. However,
such power must be exercised sparingly and only in
exceptional suitable cases where the court is
satisfied that directing additional evidence would
serve the interests of justice. It would depend upon
the facts and circumstances of an individual case as
to whether such permission should be granted
having due regard to the concepts of fair play,
justice and the wellbeing of society. Such an
application for taking additional evidence must be
decided objectively, just to cure the irregularity. The
primary object of the provisions of Section 391
Cr.P.C. is the prevention of a guilty man's escape
through some careless or ignorant action on part of
the prosecution before the Court of for vindication
of an innocent person wrongfully accused, where
the court omitted to record circumstances essential
to elucidation of truth. Generally, it should be
invoked when formal proof for the prosecution is
necessary. (Vide Rajeswar Prasad Misra V. The
State of West Bengal & Anr., AIR 1965 SC 1887;
Ratilal Bhanji Mithani V. The State of
Maharashtra & Ors., AIR 1971 SC 1630; Rambhau
& Anr. V. State of Maharashtra, AIR 2001 SC
2120; Anil Sharma & Ors. V. State of Jharkhand,
AIR 2004 SC 2294; Zahira Habibulla H. Sheikh &
Anr. V. State of Gujarat & Ors. (2004) 4 SCC 158;
and Sidhartha Vashist @ Manu Sharma V. State
(Nct of Delhi), AIR 2010 SC 2352).
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6. On perusal of aforesaid observations of Hon'ble Supreme Court, it
is crystal clear that, the power under section 391 Cr.Pc must be exercised
sparingly and only in exceptional cases where the Court is satisfied that
additional evidence would serve interest of justice. In the present case,
Sessions Court has given cogent reasons for rejecting the application filed by
the petitioner. The Sessions Court has observed that, granting permission to
appellant to cross examine the investigating officer to prove portion mark 'A',
'B' & 'C' in the evidence of Janardhan Pawar (PW 5) would amount to giving an
opportunity to fill up the lacuna, and it cannot be said to be irregular or formal
defects.
7. The view taken by the Sessions Court is reasonable, plausible and
is in consonance with the material placed on record. There is no reason to
interfere with the impugned order. Hence, petition stands rejected.
[S. S. SHINDE , J]
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1128 OF 2019
Shailesh Vinayak Chavan ]
Age 40 Years, Occ Business ]
Having address at Ish Chayya Society ]
Gavanipada, Nahur Road, Mulund, ]
(West), Mumbai. ] ...Petitioner
]
Versus ]
]
The State of Maharashtra ]
(Being represented by Mulund Police ]
Station) ] ...Respondent
Mr. H.V. Kanjalkar, for petitioner.
Mr. A.R. Patil, APP for State.
CORAM : S. S. SHINDE, J
th
DATE : 24 June 2019
JUDGMENT:
nd
1. This petition takes an exception to the impugned order dated 22
October 2018 passed on Exhibit “2” in Criminal Appeal No. 964 of 2018 by
Sessions Court, Mumbai. There is further prayer to direct the said Court to
recall Jagannath Shripti Pawar (PW 6) and allow the petitioner to cross
examine him on the point of omissions in the statements of Janardhan Lohar
(PW 5) and more specifically portions marked 'A', 'B' & 'C' as per provisions of
Section 391 of the Criminal Procedure Code (for short 'Cr.Pc'). In the
alternative, it is also prayed that, the petitioner may be permitted to record
further evidence of Jagannath Pawar (PW 6) and allow the petitioner to cross
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examine him on the point of omission in the statements of Janardhan Lohar
(PW 5).
2. The petitioner herein was tried in C.C. No. 376/P/2001 and Trial
Court relying upon the evidence of eye witnesses including injured witnesses
Keshav Vane (PW 1) & Mrs. Kusum Lohar (PW 6) coupled with the medical
evidence convicted the petitioner for the offence punishable under Section 324
of Indian Penal Code. Being aggrieved by the said judgment and order dated
23.11.2016, the petitioner filed Criminal Appeal No.964 of 2016 before the
rd
Sessions Court for Greater Bombay. In the said appeal the petitioner on 3 May
2016 preferred an application vide Exhibit2 under section 391 Cr.Pc for
recalling the investigating officer Janardhan Pawar (PW 6) in order to confront
him with the omissions and contradictions, which portion was marked in the
testimony of Janardhan Lohar (PW 5) at the stage of the trial. The said
application came to be rejected, hence the present petition.
3. Learned counsel appearing for the petitioner submits that, due to
inadvertence during the course of trial, the portions marked in the evidence of
Jnardhan Lohar (PW 5) have not been exhibited for not being confronted with
the investigating officer. The said factum also finds place in the judgment and
order passed by the learned Magistrate. It is submitted that the portion marked
'A', 'B', & 'C' in the testimony of Janardhan Lohar (PW 5) has been noticed by
2 of 6
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the learned Magistrate. If the evidence of Mr. Janardhan Lohar (PW 5) is
perused, it can be noticed that, there are formal errors in his testimony in so
far as his presence on the spot of incident is concerned. Mr. Janardhan Lohar
(PW 5) claims to be an eye witness and the omissions that have already been
made by him in his testimony go to the very root of the matter and therefore,
with at most importance, it is necessary to confront the IO Mr. Janardhan
Pawar (PW 6) with the portion marked 'A', 'B' and 'C' in the testimony of
Janardhan Lohar (PW 5) for adjudication of the Appeal pending before the
Sessions Court. It is submitted that the learned Metropolitan Magistrate while
passing impugned order fails to take into consideration the law settled by
Hon'ble Supreme Court as well as Bombay High Court especially dealing with
an application moved under section 391 Cr.Pc specially when it concerns with
curing technical and formal defects in recording of evidence. In support of
aforesaid submissions learned counsel appearing for the petitioner relied upon
ratio laid down in the case of Ashok Tshering Bhutia Vs. State of Sikkim
reported in CDJ 2011 SC 170, Rambhau Vs. State of Maharashtra, reported
in CDJ 2001 SC 294 & Babu Choudhary & Ors. Vs. The State of Bihar &
Ors. Reported in SCC Online Jhar 379: (2012) 3 AIR Jhar R 185: 2013 Cri
Lj (Noc 37) 14.
4. On the other hand learned APP submits that even if the evidence
of Janardhan Lohar (PW 5) is excluded from the consideration, there is
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evidence of Keshav Vane (PW 1) and Vijay Gujar (PW 2) who are injured
witnesses. It is submitted that, the medical evidence fully supports the
prosecution case and therefore, the Trial Court has rightly convicted the
petitioner. It is further submitted that, the provision of Section 391 Cr.Pc
cannot be invoked to fill up the lacuna as it is made clear by the Hon'ble
Supreme Court as well as various High Courts including in aforesaid reported
judgment relied upon by the learned counsel appearing for the petitioner.
5. Heard learned counsel appearing for the parties, with their able
assistance perused pleadings and grounds taken in the petition, annexures
thereto, impugned order and also reported judgments of Hon'ble Supreme
Court & High Court relied upon by the learned counsel appearing for the
petitioner. Admittedly, the petitioner during the course of trial did not file any
application praying therein to allow the petitioner to examine the investigating
officer in relation to portion marked 'A', 'B' & 'C' in the testimony of Janardhan
Lohar (PW 5). It further appears that, the Trial Court relying upon the
evidence of prosecution witnesses including injured witnesses Keshav Vane
(PW 1) and Vijay Gujar (PW 2) and coupled with the medical evidence
convicted the petitioner. At belated stage when the appeal is filed by the
petitioner, petitioner filed an application to allow him to confront investigating
officer so as to prove the omissions i.e. portion marked 'A', 'B' & 'C' in the
testimony of Janardhan Lohar (PW 5), such prayer by the petitioner is only to
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fill up the lacuna, and there was no attempt on his part to file such application
during the course of trial. It is true that in appropriate cases the Court can
invoke provisions of Section 391 Cr.Pc so as to cure errors, omissions,
irregularities however, the Hon'ble Supreme Court in the case of Ashok
Tshersing Bhutia Vs. State of Sikkim in para 15 held that:
Additional Evidence:
15. Additional evidence at appellate stage is
permissible, in case of a failure of justice. However,
such power must be exercised sparingly and only in
exceptional suitable cases where the court is
satisfied that directing additional evidence would
serve the interests of justice. It would depend upon
the facts and circumstances of an individual case as
to whether such permission should be granted
having due regard to the concepts of fair play,
justice and the wellbeing of society. Such an
application for taking additional evidence must be
decided objectively, just to cure the irregularity. The
primary object of the provisions of Section 391
Cr.P.C. is the prevention of a guilty man's escape
through some careless or ignorant action on part of
the prosecution before the Court of for vindication
of an innocent person wrongfully accused, where
the court omitted to record circumstances essential
to elucidation of truth. Generally, it should be
invoked when formal proof for the prosecution is
necessary. (Vide Rajeswar Prasad Misra V. The
State of West Bengal & Anr., AIR 1965 SC 1887;
Ratilal Bhanji Mithani V. The State of
Maharashtra & Ors., AIR 1971 SC 1630; Rambhau
& Anr. V. State of Maharashtra, AIR 2001 SC
2120; Anil Sharma & Ors. V. State of Jharkhand,
AIR 2004 SC 2294; Zahira Habibulla H. Sheikh &
Anr. V. State of Gujarat & Ors. (2004) 4 SCC 158;
and Sidhartha Vashist @ Manu Sharma V. State
(Nct of Delhi), AIR 2010 SC 2352).
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6. On perusal of aforesaid observations of Hon'ble Supreme Court, it
is crystal clear that, the power under section 391 Cr.Pc must be exercised
sparingly and only in exceptional cases where the Court is satisfied that
additional evidence would serve interest of justice. In the present case,
Sessions Court has given cogent reasons for rejecting the application filed by
the petitioner. The Sessions Court has observed that, granting permission to
appellant to cross examine the investigating officer to prove portion mark 'A',
'B' & 'C' in the evidence of Janardhan Pawar (PW 5) would amount to giving an
opportunity to fill up the lacuna, and it cannot be said to be irregular or formal
defects.
7. The view taken by the Sessions Court is reasonable, plausible and
is in consonance with the material placed on record. There is no reason to
interfere with the impugned order. Hence, petition stands rejected.
[S. S. SHINDE , J]
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