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PETITIONER: ABDUL LATIF AND ORS.

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT24/01/1978

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA SHINGAL, P.N.

CITATION:  1978 AIR  472            1978 SCR  (2) 611  1978 SCC  (1) 466

ACT: Additional Evidence or examining some witnesses by appellate court--Criminal Procedure Code (Act II of 1974), 1973 S. 391 r/w   311.   [S.   428  r/w  540   ,of   1898   Code]--Scope of--Discretionary  power of the High Court u/s 311 Crl.   P. C.   (Old   540)--Constitution   of   India,   1950,    Art. 136--Interference by Supreme Court in special leave.

HEADNOTE: The  appellants  variously armed entered the house  of  Khan Mohammad,  deceased and husband of P.W. I Jamila,  assaulted him  with various sharp cutting instruments, and  took  away his body which was later recovered from a river where it was found  to  have been cut into pieces.  On  the  evidence  of Jamila  (PW  1) Nazeer (PW 3) father of  the  deceased,  and Sughara (PW 4) mother-in-law of the deceased, the appellants were convicted u/s 302/149 and 201/f49 I.P.C. and  sentenced to life imprisonment and various terms of imprisonment under various  sections.   The conviction and the  sentences  were affirmed  by the High Court in appeal, after  rejecting  the oral  application  to take the additional evidence  of  P.W. Dhannu (brother of the deceased) and PW Zinat (sister of  PW 1)  by examining them as material witnesses in view  of  the affidavits  dt. 12-7-69 and 27-1-68 filed by  them  alleging that  six  of the appellants including Abdul Latif  bad  not participated in the occurrence at all. Dismissing the appeal by special leave the Court. HELD  :  1. Unless there is some substantial  error  in  the judgment  of  the  High  Court,  Supreme  Court  would   not interfere  in special leave on the findings ,of  fact  which has  been  arrived  at by the, High Court  on  the  relevant material. [613 A-B] 2.All  the  decisions of this Court u/s 540  Crl.   P.C., 1898 indicate that the main test is to determine whether the evidence  is necessary "for the just decision of the  case". [613 F] In the instant case:- (a)The evidence of PW Dhannu and PW Zinat was not material and  would  not help, in proving the case,  especially  when even in their affidavits both did not allege that they  were not examined by the Police or that the statements taken down by  the  Police were wrongly recorded or that they  made  no

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statement  before  the police supporting the case.   On  the contrary, their statements were recorded by the Police on 1- 8-67.   Even if these witnesses were allowed to be  examined by the High Court and had deposed in favour of the accused, ,they would have been confronted with the previous statement made  before  the  police which would  have  rendered  their testimony   wholly  contradictory  and  discrepant.    Their examination  in  the High Court would have  amounted  to  an ,exercise in futility. [613 A, C, D] (b)It  would have been better if Ramagopal  the  constable would have been examined before the Sessions Court, but  his non-examination  does  not Put the prosecution case  out  of Court  and  his  evidence was not  necessary  for  the  just decision of the case and [613 G] (c)there  is no error of law in the judgment of  the  High Court so as to justify any interference. [613 G]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 376 of 1977. 612 Appeal  by Special Leave from the Judgment and  Order  dated 13-12-1973  of the Allahabad High Court in  Criminal  Appeal No. 300 of 1970. R.K.  Garg,  S. C. Agarwal and Shiv Pujan Singh  for  the Appellants. D. P. Uniyal and O. P. Rana for the Respondent. The Judgment of the Court was delivered by FAZAL  ALI, J.-This is an appeal by Special  Leave  confined only to the question, whether section 428 read with  section 540 of the old Cr. P.C. was applicable to the facts of  this case.   The appeal is directed against the judgment  of  the High  Court  of Allahabad by which the  convictions  of  the appellant under various sections of the Penal Code have been upheld  by the High Court.  The main conviction against  the appellants were under section 302/149 and 201/149 I.P.C. All the  appellants  were  sentenced to  life  imprisonment  and various terms of imprisonment under various sections.  It is not necessary for us to give a narrative of the  prosecution case,.  because in view of the limited nature of the  leave, we  have  to deal only with the question as to how  far  the High Court was justified in rejecting the oral prayer of the appellant  for taking additional evidence or examining  some witnesses,.  who were not examined by the  prosecution.   It appears that on the night of 31st July, 1967 the  appellants variously  armed  entered the house of  Khan  Mohammad,  the husband  of  P.W. I Jamila, and assaulted him  with  various sharp  cutting instruments.  Thereafter his body  was  taken away  by accused and was later recovered from a river  where it was found to have been cut into pieces.  The defence  was that the appellants were falsely implicated due to enmity. The central evidence in this case consisted of testimony  of P.W.  I  Jamila,  the wife of the deceased,  P.W.  3  Nazeer (father of the deceased) and P.W. 4 Sughara,  (mother-in-law of  the  deceased).  One of the main grievances,  which  was made before the High Court by the counsel for the appellant, was  that  P.W.  Dhannu, the brother of  the.  deceased  and Zinat,  sister  of Jamila though very  material  witnesses,. were  not  examined by the Sessions Judge.   It  was  prayed before  the  High,  Court  that  it  should  examine   these witnesses  under  section 540 read with section 428  of  the Code of Criminal Procedure.  There, is no doubt that section 428  confers  power  on the High Court  to  take  additional

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evidence  in  suitable cases.  Section 540 further  gives  a power to the High Court to summon witnesses, whose  evidence it  thinks  necessary  for the just decision  of  the  case. There  can be no doubt that both Dhannu and Zinat were  also close  relations  of the deceased and their  evidence  would have been branded as almost similar to the evidence of P.Ws. 1, 3 and 4, that is to say interested witnesses.  It was not a case where there were some independent witnesses, who  had seen the occurrence and were deliberately suppressed by  the prosecution.   The  sheet  anchor of  the  argument  of  the appellant  consisted  of the affidavits filed  by  Zinat  on 27.1.1968  and  by Dhannu on 12.7.1969 in  which  they  have averred that six of the appellants including Abdul Latif had not  participated  in the occurrence at all.  It  is  common ground that 613 in the affidavits, while the aforesaid avertments were  made both  Zinat  and Dhanno did not allege that  they  were  not examined by the police or that the statements taken down  by the  police were wrongly recorded or that they had  made  no statement before the police supporting the prosecution case. In  these  circumstances,  therefore,  we  feel  that  their evidence was not very material and would not help in proving the   case.    The   High  Court   after   considering   the circumstances  and  facts  of the case  has  given  a  clear finding  that  the  evidence  of  these  Witnesses  was  not necessary  for  a  just decision of the  case.   This  is  a finding of fact which has been arrived at by the High  Court on the relevant material before it and unless there is  some substantial  error in the judgment of the High  Court,  this Court  would not interfere in special leave.   Moreover  the High  Court  has  pointed  out that so  far  as  Dhannu  was concerned  there is clear evidence of P.W. I Jamila  to  the effect that after the occurrence she was concluding with the accused  and became inimical to P.W. I and her family in  so much  so  that P.W. I had to make some  alterations  in  the house  for her safety.  In the interest of  justice-we  have per-used the statements of Dhannu and Zinat, recorded by the police  on  1. 8.1967 and we find that they had  fully  sup- ported  the prosecution case in their statements before  the police.   It  is obvious that even if these  witnesses  were allowed to be examined by the High Court and had deposed  in favour of the accused, they would have been confronted  with their  previous  statements made before  the  police,  which would have rendered their testimony wholly contradictory and discrepant.  Thus their examination in the High Court  would not  have served any useful purpose but would have  amounted to  an exercise in futility.  For these reasons,  therefore, we are satisfied that the High Court was right in  rejecting the  oral prayer of the appellant for summoning  Dhannu  and Zinat. Secondly  it  was argued by Mr. Garg that there  appears  to have  been  some  delay  in  lodging  the  F.I.R.  and   the constable,   Ramgopal,   for  taking  the  F.I.R.   to   the Superintendent  of  Police from the Police  Station,  should have been examined.  It would have been better, if  Ramgopal would have been examined before the Session’s Court but  his non-examination  does  not put the prosecution case  out  of Court and in our opinion his evidence was not necessary  for the just decision of the case.  The learned counsel for  the appellant  cited some decisions of this Court  spelling  out the  circumstances  under which Court  should  exercise  its discretion under section 540 Cr.P.C. have gone through these decisions  and fully agree with the principles laid down  by these  cases which hold that the main test is  to  determine

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whether the evidence is necessary for the just decision,  of the  case.  In our opinion the High Court has  rejected  the prayer  of  the  accused  after being  fully  alive  to  the principles laid down by this Court. For these reasons, therefore, we are clearly of the  opinion that  there is no error of law in the judgment of  the  High Court so as to justify any interference.  The result is that the   appeal  fails-and  is  accordingly   dismissed.    The appellants who are on bail will now surrender and serve  out the remaining period of the sentence imposed. S.R. Appeal dismissed. 614