LAKHAN SINGH versus AMARJEET SINGH & ANR on 6 December 2022

820

[2022] 17 S.C.R. 820

SUPREME COURT REPORTS

[2022] 17 S.C.R.

LAKHAN SINGH

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v.

AMARJEET SINGH & ANR.

(Criminal Appeal No. 2191 of 2022)

BDECEMBER 06, 2022

[DINESH MAHESHWARI AND SUDHANSHU DHULIA, JJ.]

Code of Criminal Procedure, 1973 – s.391 – Additionalevidence in criminal appeal – When impermissible – Respondentno.1-accused was convicted u/s 302, IPC and sentenced to life –CConviction and sentence challenged by respondent before HighCourt, also filed application for recording of evidence in respect ofhis plea of unsoundness of mind – Application allowed, Trial Courtwas directed to take on record the additional evidence and documents and to send the file back along with additional evidence – On appealDby complainant, held: Evidence regarding mental condition of therespondent was already on record – He also got himself examinedas DW-2 to put forward the aspect of his mental incapacity – Factsand conclusions in the orders passed by the Trial Court and bySupreme Court were available before the High Court – While dealingwith the appeal, it ought to have examined the material on recordEbefore taking a decision as to whether any further evidence wasrequired in the matter or not – Deciding the application forpermission to lead additional evidence in the appeal without hearingthe parties on merits and without examining the record and thereasoning that prevailed in the Trial Court, cannot be countenancedF– Further, if at all any further evidence was considered requisite, itcould have been taken by the High Court itself or by directing theregistry to do the same, after recording specific reasons therefor –Impugned order set aside – Criminal appeal restored forreconsideration of the High Court on merits – Application filed byrespondent also restored – Penal Code, 1860 – ss.302, 84.G

Code of Criminal Procedure, 1973 – s.391 – Scope of – Held:Proposition of taking additional evidence in a criminal appealcannot be adopted as a matter of course by the Appellate Court –Appellate Court could take a considered decision on the prayer foradducing additional evidence in appeal only after the appeal itselfHhas been heard on merits and not before.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.2191 of 2022.

From the Judgment and Order dated 29.03.2022 of the High Courtof Delhi at New Delhi in Crl. M.A. No.1828 of 2020 in Crl. A. No. 453of 2019.

Tanmay Mehta, Lakshya Gupta, V. K. Sidharthan, Advs. for theAppellant.

Vikramjeet Banerjee, ASG, Roshan Santhalia, Ms. Suruchi Jaiswal,P.V. Yogeswaran, Ms. Vishakha,. Raghav Sharma, Akshit Pradhan, Ms.Shruti Agarwal, Ms. Janhvi Prakash,. Kartik Dey, Gurmeet Singh Makker,Advs. for the Respondents.

The Order of the Court was passed by

DINESH MAHESHWARI, J.

Leave granted.

2. By way of this appeal, complainant of the criminal case arisingfrom FIR No. 211 of 2011 has questioned the order dated 29.03.2022passed by the High Court of Delhi at New Delhi in Crl. M.A. No. 1828of 2020 in Criminal Appeal No. 453 of 2019, whereby the High Courtallowed an application moved by the accused-applicant (appellant beforethe High Court-respondent No.1 herein) with reference to Sections 311and 391 of the Code of Criminal Procedure, 1973[1] and directed the TrialCourt to take on record the additional evidence and documents, asmentioned in the subject application; and to send the file back along withadditional evidence.

3. The relevant background aspects of the matter are that thesaid appeal bearing No.453 of 2019 has been filed by the applicant-respondent No.1 against the judgment of conviction dated 15.12.2018and order on sentence dated 19.12.2018, as passed by the AdditionalSessions Judge, Tis Hazari Courts, West Delhi in relation to FIR No. 211of 2011, whereby he was convicted of the offence punishable underSection 302 of the Indian Penal Code, 1860[2] and was sentenced toimprisonment for life with fine of Rs.1 lakh.

1 ‘CrPC’, for short.

2 ‘IPC’, for short.

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1 ‘CrPC’, for short.

2 ‘IPC’, for short.

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A4. Looking to the nature of order passed by the High Court andthe order proposed to be passed by us herein, narration of all the factualaspects is not necessary. Suffice it to notice for the present purpose thatwhile challenging the judgment and order leading to his conviction andsentence, the applicant-respondent No. 1 submitted before the High Courtthat on the date of incident, he was of unsound mind and hence, couldBnot have been tried and convicted in this matter; and such a relevantfact had not been considered by the Trial Court. In support of this plea,the applicant sought to rely upon, amongst others, the OPD Reportsdated 12.07.2011 and 19.07.2011 along with the Medical Store Bill dated12.07.2011; and to examine the doctor who had attended on him andCprescribed the medicines as also the chemist who had supplied suchmedicines. The applicant also made the submission that he wanted toexamine the Director, IHBAS, Dilshad Garden, Delhi or any doctor fromIHBAS to ascertain his medical condition on the day of incident, as alsohis father, who was having the original record of the said OPD Reportsand Bill of medicines.D

5. After taking note of the contents of application and the provisionsof Section 391 CrPC[3], the High Court noticed that on behalf of theState, there was no objection to the recording of evidence in respect ofthe plea of unsoundness of mind, which the applicant intended to raiseEand which was not considered in the trial; and also observed that thecontentions sought to be urged were going to the root of the matter. Onthese considerations and with reference to the General Exception 3 Section 391 CrPC reads as under: -F“391. Appellate Court may take further evidence or direct it to be taken.- (1) Indealing with any appeal under this Chapter, the Appellate Court, if it thinksadditional evidence to be necessary, shall record its reasons and may either takesuch evidence itself, or direct it to be taken by a Magistrate, or when the AppellateCourt is a High Court, by a Court of Session or a Magistrate.(2) When the additional evidence is taken by the Court of Session or the Magistrate,it or he shall certify such evidence to the Appellate Court, and such Court shallGthereupon proceed to dispose of the appeal.(3) The accused or his pleader shall have the right to be present when the additionalevidence is taken.

(4) The taking of evidence under this section shall be subject to the provisions ofChapter XXIII, as if it were an inquiry.”

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provided in Section 84 IPC[4], the High Court deemed it appropriate toallow the applicant to lead additional evidence before the Trial Court.Though the High Court expressed that the appeal was remanded backbut, issued directions that the Trial Court shall get the evidence recordedafter giving shortest possible dates and thereafter, the file shall be returnedalong with additional evidence.

6. The relevant observations and directions of the High Courtread as under: -

“9.Keeping in view the facts and circumstances of the case beforeus and also the fact that the state has accorded no objection to therecording of the evidence in respect of the plea of insanity, whichthe appellant now intends to raise, as the same were not consideredduring the course of the trial, and also the circumstance that thecontention raised at this stage by the appellant does go to the rootof the matter; the appellant wants to place on record documentspertaining to his mental condition as well as wanting to examinethe witnesses in support of his contention; and the same in ourconsidered opinion does not amount to filling up the lacuna in thepresent case. The plea of insanity is covered under generalexceptions under Section 84 of the Indian Penal Code and thesame would definitely have a bearing on this case. Even otherwiseit is pertinent to observe that the Applicant/Appellant had in factraised the issue of his being of unsound mind at the stage of trialbefore the learned Additional Sessions Judge which was dismissedand declined vide order dated 20.02.2014. Thus, in this view ofthe matter, and in the interest of justice, we consider it appropriateto allow applicant/appellant to lead additional evidence before thelearned Trial Court.

10. Appeal is remanded back with the directions to learned TrialCourt to take on record the additional evidence and documents asmentioned in the subject application, under Section 311 of Codeof Criminal Procedure, 1973 dated 23.01.2020. Let the file be 4 Section 84 IPC reads as under: - “84.Act of a person of unsound mind.- Nothing is an offence which is done by aperson who, at the time of doing it, by reason of unsoundness of mind, is incapableof knowing the nature of the act, or that he is doing what is either wrong or contraryto law.”

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Aplaced before the learned District Judge – Tis Hazari Courts tomark the case to the concerned Trial Court and the concernedTrial Court shall fix a shortest possible date for recording of theevidence. The Trial Court shall not give more than one opportunityto the applicant/appellant to lead the additional evidence as prayedfor and shall not give any unnecessary adjournments. Thereafter,Bthe file shall be sent back to this Court along with additionalevidence recorded.”

7. Seeking to challenge the order aforesaid, learned counsel forthe complainant-appellant has argued that the order dated 20.02.2014,as referred to by the High Court in the order impugned, was indeedCconsidered and affirmed by this Court in the order dated 12.10.2015 inCriminal Appeal Nos. 1345-1346/2015; and the impugned order, as passedby the High Court, does not stand in conformity with the order so passedby this Court.

7.1. Learned counsel has further submitted that during the courseDof trial, two-fold submissions were made in the application dated17.11.2011 moved on behalf of the accused-applicant: one about hismental illness at the time of incident and another about his unsoundnessof mind during the trial; and sought relief in terms of Section 330 CrPC.Learned counsel would submit that in the order dated 20.02.2014, theEapplication so made was duly considered by the Trial Court and then, thesame was dismissed with reference to the deposition of witnessesexamined for the purpose. Learned counsel has pointed out that in theorder dated 20.02.2014, the Trial Court, inter alia, found and held asunder:-

F“18. I am of the view that in view of medical board report dated06.02.2013, the deposition of CW-1 & CW-2 and in view of furtherreport dated 01.01.2014 of IHBAS, the accused is fit to face trial.The accused is not incapable of making his defence. The applicationunder Section 330 CrPC filed by Sunehera Singh father of theaccused is without any merits and same is hereby dismissed. WithGthis application is disposed off.”7.2. Learned counsel has further submitted that the said ordercame to be specifically affirmed by this Court in the order dated12.10.2015, that reads as under: - “Leave granted.H

LAKHAN SINGH v. AMARJEET SINGH & ANR.[DINESH MAHESHWARI, J.]

The instant appeal has been filed by the father-in-law of thedeceased, assailing the orders passed by the High Court,suspending the trial of the respondent-Amarjeet Singh. Thequestion which came to be considered by the High Court, relatedto the mental fitness of the respondents to face trial. Insofar asthe instant aspect of the matter is concerned, the High Court reliedon the first medical evaluation conducted by a Medical Board on06.02.2013. It also relied on the statement of two Court witnessesexamined by the Trial Court, namely, CW-1 on 20.07.2013 andCW-2 on 11.10.2013.

In addition to the above, the High Court also took intoconsideration a second report of the Medical Board dated01.01.2014. In both the aforementioned Medical Reports, and also,the statement made before the trial court by the two court witnesses,respondents had been considered to be fit to face the trial.

In the above view of the matter and keeping in mind the opinion/statements of experts on the subject, we are satisfied that thedirection issued by the High Court on 04.09.2014, to suspend thetrial, was not justified. The impugned order passed by the HighCourt is accordingly set aside. The order passed by the trial courtdated 20.02.2014, affirming the fitness of the respondents to facetrial, is confirmed.

In the above circumstances, the appeals stand allowed.”

7.3. Learned counsel would submit that both the issues as regardsmental capacity of the applicant-respondent No.1 at the time of incidentas also during the course of trial stand concluded by the aforesaid orders;and the High Court has not been justified in granting opportunity forfurther evidence on the very same aspects.

8. Per contra, learned counsel for respondent No.1 has submittedthat in the order dated 20.02.2014 passed by the Trial Court as also theorder dated 12.10.2015 passed by this Court, only the aspect as regardsthe mental capacity of the applicant–respondent No.1 to face the trialcame to be considered and pronounced upon but, his mental capacity atthe time of incident and his capacity to know the nature of his actsdefinitely remains a question for consideration and hence, the High Courthas not committed any error in allowing evidence to be adduced in thatregard before the Trial Court.

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A8.1. Learned counsel would further submit that the High Courthaving taken a particular view which remains just and proper and servesthe cause of justice, no interference is called for.

9. Learned ASG appearing for the State has duly assisted us withreference to the provisions of Sections 311, 391 and 330 CrPC.B

10. Having given thoughtful consideration to the submissions madeand having examined the record, we are clearly of the view that theorder impugned cannot be sustained for more than one reason.

11. Insofar as the question of unsoundness of mind of theCrespondent No. 1 is concerned, it is noticed that in the application movedbefore the Trial Court in reference to Section 330 CrPC, it was preciselythe contention on his behalf that he was suffering from mental illnessduring the period of incident. It was also submitted that being of unsoundmind, he was incapable of making his defence. It is also noticed that inthe earlier round of proceedings, the High Court set aside the orderDdated 23.02.2012 passed by the Trial Court and issued directions forexamination of respondent No.1 from the specialist/medical board.Thereupon, the file was sent to the concerned Magistrate to get theapplicant examined by the medical board. After receiving report fromthe medical board that respondent No. 1 was fit to stand trial, the TrialECourt posted the matter for examination of witnesses and in fact,examined two Doctors as CW-1 and CW-2 respectively. After takingnote of the entire evidence on record, the Court found that the respondentNo. 1 was fit to face the trial and was not incapable of making hisdefence. Thus, the application was rejected. This Court approved theorder so passed by the Trial Court, particularly in view of the opinion/Fstatement of the experts and found no justification in the High Courtinterfering with the matter.

12. In the given set of facts and circumstances, when the evidencewas indeed taken for the purpose of dealing with the plea put forwardGon behalf of the applicant-respondent No.1; and a specific view wastaken by the Trial Court, which was affirmed by this Court with referenceto the evidence available on record, we find it difficult to approve theapproach of the High Court in permitting further evidence of the samenature to be adduced and for that purpose, sending the matter to theTrial Court.H

13. The procedure as adopted in the present matter is difficult tobe approved, more particularly when specific evidence as regards mentalcondition of the applicant–respondent No.1 is already on record andthen, it is also seen that the aspect of his mental incapacity was soughtto be put forward by respondent No.1 himself by entering into witness-box and getting himself examined as DW-2. The facts and conclusionsin the orders passed by the Trial Court and by this Court are availablebefore the High Court. The High Court dealing with the appeal ought tohave examined the material on record before taking a decision as towhether any further evidence was required in the matter or not. Secondly,if at all any further evidence was considered requisite, in the totality ofcircumstances of the present case and nature of plea sought to be raised,such evidence could have been taken by the High Court itself or bydirecting the registry to do the same, of course, after recording specificreasons therefor.

13.1. Put in a nutshell, it is apparent that while passing the orderdated 29.03.2022, neither the order passed by this Court on 12.10.2015has been taken note of by the High Court nor even the evidence alreadyavailable on record has been examined by the High Court.

14. The proposition of taking additional evidence in a criminalappeal cannot be adopted as a matter of course by the Appellate Courtand in fact, the occasion for the Appellate Court to take a considereddecision on the prayer for adducing additional evidence in appeal couldarrive only after the appeal itself has been heard on merits and not before.Taking up an application moved in the appeal for permission to leadadditional evidence and deciding the same without hearing the parties onmerits of the appeal and without examining record of the case and thereasoning that has prevailed in the Trial Court, in our view, cannot becountenanced.

15. In the aforesaid view of the matter, the impugned order dated29.03.2022 deserves to be and is hereby set aside and the appeal i.e.,Criminal Appeal No.453 of 2019, stands restored for reconsideration ofthe High Court in accordance with law.

16. Having regard to the circumstances of the case, though weare not approving the order dated 29.03.2022 but, while restoring theappeal for consideration on merits, we would also restore the saidapplication, Cr.M.A. 1828 of 2020, as moved by the applicant-respondent A

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ANo.1, which may be considered at an appropriate stage by the HighCourt in accordance with law; and appropriate orders may be passed,as deemed fit and necessary in the facts and circumstances of the case.

17. The parties through their respective counsel shall stand atnotice to appear before the High Court in Criminal Appeal No.453 ofB2019 on 10.01.2023.

18. In the totality of the circumstances of the case, the interimarrangement made by the High Court in its order dated 15.09.2022 duringthe pendency of the appeal shall continue until the first date of appearanceof the parties before the High Court i.e., 10.01.2023.

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19. It goes without saying that we have not made any commentson merits of the case either way; and all the aspects relating to themerits remain open to be argued by the parties before the High Court.

20. With the observations, relaxations and requirements foregoing,the appeal stands allowed.

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Divya Pandey

(Assisted by : Deepak Panwar, LCRA)

Appeal allowed.

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