Summary
In his pending appeal against conviction for raping a minor, the accused applied under Section 391 CrPC to summon a former Deputy Commissioner of Police who wrote in a book that he filmed the crime scene on his mobile phone on 21 August 2013, a day before the site maps were drawn, contending that the victim had been tutored from such a video. The High Court allowed the application. The Supreme Court set the order aside: the presence of a police team at the scene that day was an accepted fact, the book nowhere said the video was given to the investigating officer or shown to the victim, the trial court had rejected the tutoring plea on the evidence, and the discretion under Section 391 is narrower than under Section 311 and is exercised only to prevent failure of justice, not to reopen a concluded trial eight years after the occurrence.
Issues
- What is the scope of the appellate court's power under Section 391 CrPC to take additional evidence, and how does it compare with the trial court's power under Section 311.
- Whether an author's statement in a book that he filmed the crime scene on his mobile phone warranted summoning him as a court witness at the appellate stage to support a plea that the victim was tutored.
Provisions considered
- Section 391, Code of Criminal Procedure, 1973Additional evidence at the appellate stage is permitted only where, on good and justifiable grounds, there would be a failure of justice without it; the discretion is narrower than under Section 311 because the trial court has already pronounced on guilt, and it must not be used to delay the appeal or to explore contradictions. (¶¶ 14, 15, 16, 17, 18)
- Section 311, Code of Criminal Procedure, 1973Empowers the trial court to summon or recall witnesses essential to a just decision; recall must be bona fide and balanced against hardship to witnesses and delay, as held in Shiv Kumar Yadav. (¶¶ 16, 17)
- Sections 161 and 162, Code of Criminal Procedure, 1973Statements recorded by the police during investigation are not evidence, though the accused may use parts of them under the proviso to Section 162; the deposition in court is the evidence. (¶ 11)
Held
- The prosecution's own case was that the police team visited the Kutiya on 21 August 2013, and a newspaper photograph showing a police officer there confirmed it; the trial court rejected the tutoring plea not on the ground that the police had not entered the scene but on a detailed examination of the victim's and investigating officer's evidence. The author's statement in the book nowhere says that his mobile video was handed to the investigating officer or shown to the victim, so summoning him on that ground is inconsequential and irrelevant. (¶¶ 10, 11)
- The touchstone for additional evidence on appeal is whether there would be a failure of justice without it, not inability to pronounce judgment; the discretion must be exercised with caution and only on good and justifiable grounds, and the power under Section 391 is more restricted than under Section 311 since the appellate court deals with a case already decided. (¶¶ 14, 15, 16)
- The appellate court must be equally cautious of attempts to delay the appeal or to lead additional evidence to explore a chance of contradiction; the right to speedy disposal is an obligation towards society and the victim as well as the accused, and the application, filed nearly eight years after the occurrence, was an attempt to reopen the entire case and re-examine the victim and the investigating officer who had already been examined on eleven occasions each. (¶¶ 17, 18)
Result
Appeal allowed; High Court judgment dated 10.02.2022 directing summoning of Ajay Pal Lamba as a court witness under Section 391 CrPC set aside; High Court requested to hear the criminal appeal expeditiously, the respondent having been incarcerated for nearly ten years, uninfluenced by the observations made.