IMPORTANT POINT
Production of additional evidence – For sake of speedy trial, there should not be denial of justice or grave miscarriage of justice.

ORDER

I.A. No.1036 of 2024 filed in CRLA No.750 of 2021

Both the matters are taken up for hearing through Hybrid arrangement (video conferencing/physical mode).

2. This interim application has been filed under section 391 of Cr.P.C. by the appellants in CRLA No.750 of 2021 for recording of additional evidence of P.W.1 Melita Sabar, who is the informant by way of further cross-examination and allowing the questions mentioned in the questionnaire to be put to P.W.1 in the interest of justice.

3. It is stated in the petition that P.W.1 was examined in C.T. Case No.07 of 2017 in the Court of learned Addl. Sessions Judge, Gunupur on 31.07.2017. In the said trial, all the appellants were found guilty and death sentence was imposed on them. The learned trial Court submitted the proceeding to this Court for confirmation of the death sentence which was registered as DSREF No.01 of 2018. The appellants also preferred an appeal against the judgment and order of conviction and sentence passed by the trial Court in JCRLA No.46 of 2018 before this Court. Both the DSREF and the JCRLA were heard together and the judgment was delivered on 05.11.2019 and the matter was remanded back to the learned trial Court with a direction to add charges for the offences under sections 364 and 365 of the I.P.C. and to proceed in the trial, keeping in view the provision under section 217 of Cr.P.C.

4. It is further stated in the petition that on 14.11.2017, P.W.1 was examined before the Principal Magistrate, Juvenile Justice Board, Rayagada (hereinafter ‘the J.J.B.’) as P.W.12 in G.R. Case No.418 of 2016 which arises out of the same F.I.R. in respect of juvenile Jamsu Sabar and that the evidence which she adduced before the J.J.B. was completely contrary to her evidence adduced as P.W.1 in the trial of the appellants.

5. It is further stated in the petition that after remand of the case, it was tried in the Court of learned Sessions Judge-cum-Special Judge, Rayagada in Criminal Trial No.08 of 2020 and P.W.1 was recalled and examined on 02.03.2020 and even though learned defence counsel was given an opportunity to cross-examine P.W.1 but the contradictions which are appearing in her evidence with reference to her evidence given as P.W.12 in G.R. Case No.418 of 2016 could not be confronted.

6. Learned counsel for the appellants

submitted that in the interest of justice, this Court should exercise the power under section 391 of Cr.P.C. and allow the I.A. and permit the defence counsel to put the questions mentioned in the questionnaire of the interim application to P.W.1 in the further cross-examination.

7. As per the order dated 29.04.2024, learned counsel for the State has produced the written instruction dated 02.05.2024 received from the Inspector in-charge of Puttasing police station which indicates that P.W.1 is now staying with her husband in village Tamegarjang under Seranga police station in the district of Gajapati. The written instruction is taken on record.

8. Learned counsel for the State has filed objection to the interim application wherein it is highlighted that the power of appellate Court to take further evidence should be exercised when the party making such request was prevented from presenting the evidence in the trial Court despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that non-recording of such further evidence might lead to failure of justice and that the power under section 391 of Cr.P.C. is to be exercised with great care and caution and not to fill up the gaps or lacuna of either of the parties. It is further argued that though it is submitted on behalf of the learned counsel for the appellants that the evidence given by P.W.1 as P.W.12 before the Juvenile Justice Board was not within the knowledge of the learned defence counsel for which the same could not be confronted but in the appeal memo, in ground no.M, it is stated as follows:—