S.391 CrPC | Additional Evidence Of Witness Can Be Recorded At Stage Of Death Reference If Needed For Arriving At Just Conclusion: Orissa High Court

The Orissa High Court has recently allowed a petition filed on behalf of nine persons, convicted and sentenced to death by trial Court for murder of three family members on the suspicion of witchcraft, for recording of additional evidence of a prosecution witness at the stage of hearing of death reference by the High Court.

While allowing the prayer of the convicts, the Division Bench of Justice Sangam Kumar Sahoo and Justice Radha Krishan Pattanaik observed –

“Criminal justice is not one-sided. It has many facets and the Court has to draw a balance between conflicting rights and duties. The victim of offence or the accused should not suffer for laches or omission of Public Prosecutor or the defence counsel respectively and even of the Court.”

Factual Background

The nine appellants were tried by the Sessions Judge, Rayagada on the charge of murder of three members of a family on the suspicion of witchcraft in the year 2016. The trial Court found the appellants guilty and handed down death sentence for the offence of murder.

The order of death punishment was referred to the High Court for confirmation under the provision of Section 366 of the CrPC and the appellants also filed a criminal appeal assailing the judgment and order, which were heard analogously by the High Court.

During the course of hearing, it came to light that a juvenile offender was involved in the commission of the crime and he was tried separately before the Juvenile Justice Board. The star witness on behalf of the prosecution, however, gave contradictory statements in both the trials, i.e. one before the Sessions Judge, Rayagada and another before the JJB, Rayagada.

The counsel appearing for the appellants filed an interim application seeking leave of the Court to examine the said witness again and put certain questions to her. It was contended that though the witness gave contradictory statements before the trial Court, she could not be contradicted effectively as the counsel conducting the case had no knowledge about the deposition made by the witness before the JJB.

Court's Observations

The Court observed that the term 'previous statement' mentioned under Section 145 of the Evidence Act would mean and refer to the statement made by a witness earlier in time of his deposition in Court.

The Court placed reliance on a catena of decisions rendered by the High Court as well as the Apex Court wherein it was commonly held that a previous statement made by a witness during the trial continues to be a 'previous statement' as per Section 145 and the accused is entitled to contradict the maker of such statement with his previous statement.

The Court noted that the deposition of the concerned witness was recorded by the Sessions Judge on 02.03.2020. Thus, the evidence which she gave before the JJB can be construed as 'previous statement' and it was permissible for the defence counsel to contradict her on the basis of her previous statement. However, no question in that regard was put by the defence counsel to contradict the witness.

Therefore, the kernel issue which cropped up for consideration was whether the Court should deny permission to recall the witness for recording additional evidence only because the defence counsel failed to bring out such contradictions while conducting her cross-examination.

To answer the above question, the Court referred to a number of precedents, including the observations made by the High Court in Purna Chandra Samal v. State of Orissa, wherein it was observed:

“…the discretion of the Appellate Court under section 391 of Cr. P.C. either to take further evidence itself or to direct it to be taken by the lower Court should be exercised in a judicious manner where the admission of such further evidence to the Appellate Court's record is considered essential for arriving at the truth of the matter…Such power can be invoked by the Appellate Court on the prayer of either side or even suo motu. The same principle applies to the revisional Court when a party seeks for adducing the additional evidence.”

Considering the facts of the case and the precedents, the Court was of the considered view that in the interest of justice and to arrive at the just conclusion of the case, if additional evidence is required to be taken and if such exercise would not cause prejudice to any of the parties, then the appellate Court may direct recording of such evidence.

“The right of speedy trial in criminal case which includes disposal of criminal appeal preferred by the accused against conviction is a valuable and important right of the accused, but for the sake of speedy trial, there should not be denial of justice or grave miscarriage of justice.”

Accordingly, the Court allowed the interim application and directed the trial Court to record the additional evidence of the said witness. However, the Bench made it clear that the recording of additional evidence shall be confined to putting her only those questions which were mentioned in the interim application. It also gave liberty to the prosecution to re-examine the witness, if needed.

Case Title: State of Odisha v. Dengun Sabar & Ors.

Case No: DSREF No. 01 of 2021 & CRLA No. 750 of 2021

Date of Order: May 03, 2024

Counsel for the Condemned Prisoners: Mr. Himanshu Bhusan Dash & Mr. Manas Chand, Advocates

Counsel for the State: Mr. Arupananda Das, Addl. Govt. Advocate

Citation: 2024 LiveLaw (Ori) 41

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