Bhagwan Singh vs The State of Punjab

Ujagar Singh, J.—The Petitioner is standing trial in the case, First Information Report No. 88 dated 24-4-1986 u/s 61(1)(a) of the Punjab Excise Act of Police Station Ajnala, District Amritsar.

After the report u/s 173 of the Code of Criminal Procedure, 1973 (the Code in brief) was presented, the Petitioner was charged to stand trial under the said offence. Thereafter the prosecution examined its evidence and tendered the report of the Assistant Chemical Examiner as Ex. PE. The case was fixed for arguments and it was argued on 19-10-1987. The trial Court, after hearing arguments, fixed the case for orders on 20-10-1987.

On 20-10-1987 the Petitioner was informed by the Court that an application u/s 311 of the Code had been submitted by the prosecution for summonning the Assistant Chemical Examiner, Amritsar as a Court witness. A perusal of the application Annexure P1 shows that report of the Chemical Examiner, not signed by the Assistant Chemical Examiner, had been tendered in advance as Ex.1E inadvertently. Permission of the Court was required to summon the Assistant Chemical Examiner, along with the relevant report dated 18-6-1986 for examination as a witness. The said prayer was opposed, but the trial Court, after referring to Narain Singh and Ors. v. State 1982 (1) C. L. R. 547, wherein it was held that undoubtedly the Courts at the trial stage, appellate stage and revisional stage have wide powers to examine additional evidence if the interest of justice so requires and that there is an equally fundamental concept of criminal jurisprudence that the prosecution cannot be permitted to fill in the lacuna in its evidence, by trying to examine the evidence at the close of the defence, as the same can generally cause prejudice to the accused, found in favour of allowing the said application. It allowed the application of the prosecution with the observation that the report placed on the file was admittedly not signed by the Assistant Chemical Examiner, but it was not noted inadvertently when tendered in evidence and that this fact was brought to light during arguments by the learned defence counsel. The trial Court has further observed that the facts of Narain Singh''s case (supra) were not applicable to the facts of the present case; inasmuch in that case Moharrar Head constable was already examined, but in the instant case the Assistant Chemical Examiner has not been examined. Therefore, his examination as a witness would not amount to filing up the lacuna.

The learned Counsel has relied upon State of Rajasthan Vs. Daulat Ram, and Narain Singh and Anr. v. State 1982 (1) C. L. R. 547. On the other hand, the learned Counsel for the Respondent, while relying upon Sukhdev Singh v. State 1982 Cr. L. R. 2201, has laid stress that the mere fact that additional evidence is permitted to be taken after the entire prosecution case is over, is not in itself in excess of the powers of the Court. He has argued that the principles that such evidence should not demolish the case set up by accused in his defence, if he has done so should be present to the mind of the Judge at the time when he takes a decision. The Court u/s 311 is to help neither the prosecution nor the accused.

I have considered the arguments of the learned Counsel for both the sides. In Daulat Ram''s case (supra), the samples taken remained in custody of about six persons and yet none of those persons was examined by the prosecution to prove that while in their custody, the seals were not tempered with. The High Court of Rajasthan held that the prosecution has not proved that right from the stage of seizure of opium, upto the time when the samples were handed over to the Public Analyst, the seals remained intact. The prosecution in that case realised its mistake and at the fag end of the trial, an application was made u/s 540 of the Code to examine three of those persons. This application was rejected by the learned Magistrate and at the High Court level stand taken by the learned Counsel for the State was extremely vacilliating and at one time, he filed an application for additional evidence and some time later, choose to withdraw it. Their Lordships of the Supreme Court held that it was obvious that the onus is on the prosecution to prove the entire case at the trial and the prosecution should not be allowed to fill up the gaps or lacuna left at the trial, at the appellate or at the revisional stage. The acquittal order passed by the High Court was, therefore, maintained.

In Narain Singh''s case (supra), the case was fixed for arguments on 24-1-1984 and the arguments of the parties were heard. The case was adjourned to 2-2-1981 for pronouncement of judgment. The Public Prosecutor made an application under Sections 391/311 of the Code, praying that one witness be recalled, because the same was necessary for a just decision of the case. The trial Magistrate declined the application on 9-12-1980 on the ground that the witnesses had been examined by the prosecution and cross-examined by the accused and the effort was to fill in the lacuna in the prosecution evidence. The accused were convicted and appeal was filed. Pending the appeal, Public Prosecutor again moved an application for summoning the same witness on the same ground, saying that when the statement of the witness was recorded, the relevant report had not been put to him at that time. Therefore, examination of that witness was in the interests of justice. The appellate Court allowed this application and ordered that the witness be recalled.

7 Against the appellate order, the accused came in Criminal Miscellaneous u/s 482 of the Code, challenging the same. During arguments, a reference was made to Daulat Ram''s case (supra) and some other rulings. Ultimately the following observation was made by learned brother, S. S. Kang, J.,

The State was represented through a competent Public Prosecutor, who was supposed to know his case. The police file was with him. It is well known that in a case of recovery of contraband the link evidence has to be established by the prosecution. The witness appeared in Court. He was not examined on the point as to when the sample was received by him and through whom the delivered the sample to Chemical Examiner. Thereafter the defence had been closed and the argument were going to be addressed when an application was made to the learned Magistrate for summoning the witness. The Magistrate rightly declined this application because the resummoning of this witness would have amounted to filing in lacuna in the case. Undoubtedly the Courts at the trial stage, the appellate stage, the revisional stage have wide powers to examine additional evidence if the interest of justice so requires. However, there is equally fundamental concept of Criminal Jurisprudence that the prosecution cannot be permitted to fill in the lacuna in its evidence by trying to examine the evidence at the close of the defence.

The case of Jamatraj Kewalji Govani Vs. The State of Maharashtra, was also referred to by the State counsel. The facts in that case were that the learned trial Magistrate had allowed that Shri Dutta be examined as a Court witness. The accused did not challenge the order of the Magistrate, allowing the prosecution to examine the witness. Shri Dutta was examined and thereafter Govani accused was again examined and was given an opportunity to lead defence evidence and he stated that he had nothing to add and no defence evidence to lead. The accused was convicted and sentenced u/s 135(a) and Section 135(b) of the Customs Act. The appeal was dismissed by the High Court, agreeing with the Magistrate. While observing that there are two aspects of the matter which must be distinctly kept apart, it was held that the first is that prosection cannot be allowed to rebut the defence evidence unless the prisoner brings forward something suddenly and unexpectedly. It was further observed as under:

The prosecution examined Ranade, Prevention Officer Customs who had assisted at the search but failed to examine Dutta who seized the watches and under whose direction the search was conducted. The question was, why were the watches seized ? They were obviously not seized because they were stolen property or belonged to some other person. They were seized after search on a warrant which expressed the belief that they were smuggled and after affording Govani an opportunity by notice to explain his possession. This belief obviously was entertained by Dutta. This was not a case in which the prosecution was trying to fill a gap in the prosecution case. The Court was right in thinking that a just decision of the case required that the nature of the belief underlying the seizure should be before it on oath of the person making the seizure so that Govani, might be required, as the policy of the Customs Act, 1962, requires, to prove his innocent possession Govani had really no defence in view of the Control Order of 1955 and the gap of time between the promulgation of the order and the date of seizures. He admitted this...

In Sukhdev Singh''s case (supra) the facts were as under:

The Petitioner were facing trial for an offence u/s 9 of the Opium Act and the prosecution closed its evidence on 20-4-1981. He was examined u/s 313 of the Code on 29-4-1981. The defence was closed by him on 20-7-1981 and 23-7-1981, the prosecution filed an application in the light of the judgment of this Court in Criminal Revision 336 of 1979, decided on 24-2-1981, reported as Atma Singh v. State of Punjab 1981 Ch. Cr. C. 181, for examining a clerk of the office of the Chemical Examiner to prove that the sample had been received in that office with seals intact and that the sample was handed over to the Chemical Examiner in that very condition. It was in those circumstances that that case was decided. A more important circumstance was taken into consideration while deciding the case and it was observed that since the prosecution gave a weighty reason in support of this application by referring to the judgment in Atma Singh''s case (supra), impressing upon the prosecution to produce evidence from the office of the Chemical Examiner that the sample was received there with seals intact and the seals remained in that very condition till the sample was analysed by the Chemical Examiner. Therefore, the discretion in that case was held to have been properly exercised by the learned trial Court. The emphasis in that case was that since earlier much importance was not given to the link evidence, the prosecution was relying upon earlier practice and Atma Singh''s case (supra) changed the whole concept and made it necessary to satisfactorily prove the link evidence. The decision is not very helpful in the instant case, especially, in view of the facts of the instant case. Considering the facts of this case, the report of the Chemical Examiner was received during the investigation. It was attached with the report u/s 1?3 of the Code and before it was submitted to the Court, according to the usual practice, the report was checked up by law officers on behalf of the prosecution, as also by the higher Police officers. Later on charge was framed on the basis of the report and it was specifically tendered in evidence most probably in his statement by the Public Prosecutor. It is not the case of the prosecution that the absence of signatures of the Assistant Chemical Examiner did not come to their notice at any stage. Even if they had advanced such a case, it would have been difficult to accept. In any case, the only ground for accepting the application is that since the report happened to be not signed by the Assistant Chemical Examiner, the prosecution may be allowed to examine him as a witness. It seems that it was only in the course of arguments that the defence counsel pointed out that the report was not admissible as it was not signed by anybody. In these circumstances, it will amount to giving a long handle to the prosecution to patch up the infirmities in its case, by allowing additional evidence. The phrase "for ends of justice" do not only mean that the prosecution should not suffer from such infirmities. Actually, the Court has to keep up a balance. This case was registered some time, much before 18.6.1986 and the investigation continued for a period of about a year. The report u/s 173 of the Code was presented on 27.3 1987. Arguments were heard on 19.10.1987. It was only on 19.10.1987, as stated above, that the present application was filed. The only ground mentioned for summoning additional evidence is that the report of the Chemical Examiner is not signed by the Assistant Chemical Examiner and the same was tendered in evidence as Ex. PE inavertently. This ground does not appeal to reason, because earlier as already remarked, the prosecution had so many opportunities of checking up all the documents to be produced with the challan so as to see, whether a case is made out against the accused or not. If no body has looked into the report at any stage till the day of arguments, it is the fault of no body else except that of the prosecution itself for which it must suffer.

Keeping the foregoing discussion in view, this petition is accepted and the impugned order of the trial Court, allowing additional evidence, i. e. summoning the Assistant Chemical Examiner as a witness, is set aside. The Criminal Miscellaneous stands disposed of accordingly.