Criminal Appeals Nos 251  307 of 1990
From the Judgment and Order dated 1181989 of the Allahabad High Court in Crl
A No 1239 of 1978
687 SC Maheshwari YC Maheshwari Miss Sandhya Goswami and PK Chakraborty for the Appellants
Prithvi Raj Prashant Chaudhary and Dalveer Bhandari for the Respondent
The Judgment of the Court was delivered by section RATNAVEL PANDIAN J
The appellants in criminal appeal No 251 of 1990 were accused Nos 3 and 4 before the trial court namely the VIIth Additional Sessions Judge Meerut whereas the appellants in criminal appeal No 307 of 1990 were accused Nos 1 and 2 before the said court
These four appellants along with one Braham Singh since acquitted took their trial for offences under Sections 302 read with section 149 IPC and 323 read with section 149 IPC
Besides these four appellants were also charged for offence under section 147 IPC whilst Braham Singh under section 148 IPC
The trial court on appreciation of the evidence adduced by the prosecution found the 5th accused Braham Singh not guilty of any charges and acquitted him
However these four appellants were found guilty of offences under section 302 read with section 34 IPC and under section 323 read with section 34 IPC and sentenced to undergo imprisonment for life and to six months  rigorous imprisonment respectively
The High Court on appeal preferred by all the appellants for the reasons mentioned in its judgment held that the prosecution has not made out a case punishable under section 302 read with section 34 IPC but only under section 304 Part II IPC read with section 34 and consequently set aside the conviction and the sentence imposed for the offence under section 302 read with section 34 IPC and instead convicted them under section 304 Part II read with section 34 IPC and sentenced each of them to undergo rigorous imprisonment for a period of five years
The conviction of all the appellants under section 323 read with 149 IPC was altered into one under section 323 read with 34 IPC and the sentence of six months  rigorous imprisonment was retained
The facts of the case which have given rise to the present appeals as unfolded by the evidence can be briefly stated thus Appellants in criminal appeal No 30790 are brothers
Similarly appellants in criminal appeal No 25190 and Braham Singh who was arrayed as accused No 5 before the trial court are also brothers among themselves
PWs 1 and 5 are the brother and wife respectively of one Bali 688 the deceased herein
PW 1 and the deceased Bali had a common Chak 
The appellants belonged to a village named Kaulbhandora which is at a distance of about four furlongs from the Chak situated just adjacent to the road and Rajbaha 
The appellants used to take the Rajbaha  Patri in auction for grazing their cattle
It seems that there was strained relationship between the appellants and the deceased for a considerable length of time
According to the prosecution the cattle belonging to the appellants when allowed to enter the Patri  grazing field used to stray into the field of Bali and cause damage to the standing crops
Although Bali made a protest it did not yield any result
On account of this there was simmering feeling between the parties
Added to that there were certain criminal prosecutions between the parties pending for over a period of two years
On 23121976 at about 1 pm when Bali along with PWs 1 and 5 was in his field these appellants each armed with a Lathi along with Braham Singh armed with a Ballam  came there
On the exhortation of Chandroo all other appellants and Braham Singh attacked Bali with their respective weapons and caused injuries to him
While PW 3 tried to save her husband she too was injured
When PW 1 along with PWs 3 and 4 rushed to the scene of occurrence the assailants took to their heels
Injured Bali was removed to the Hastinapur hospital for treatment
PW 6 the medical officer attached to the said hospital examined Bali and found on his person as many as fifteen injuries of which injury No 15 was a stab wound and most of the other injuries were contusions
PW 6 prepared a medical report Exhibit Ka 6 and on the same day he examined PW 5 and found on her person 2 contusions in respect of which he prepared the injury report exhibit Ka 7
However Bali succumbed to his injuries on the same day at about 745 pm PW 1 lodged a written report exhibit Ka 1 at about 8 pm before PW 2 a Head Constable attached to the Hastinapur Police Station
PW 2 prepared Exhibit Ka 2 on the basis of exhibit Ka 1 and made GO entry ie exhibit Ka 3
PW 9 the then sub Inspector of Police attached to the Police Station took up the investigation and examined PW 1 and others
He held the inquest over the dead body of the deceased and prepared exhibit Ka 11 PW 5 could not make any statement as she was unconscious
The PW 9 inspected the spot and prepared a site plan exhibit Ka 14 and seized certain material objects including a piece of wood and blood stain earth
PW 7 yet another Medical Officer conducted the post mortem examination on the dead body of the deceased Bali on 24121976 and found a number of injuries as noted in his post mortem report 689 exhibit Ka 8
According to PW 7 the death was due to shock and haemorrhage as a result of the injuries sustained by the deceased
PW 9 after completing the investigation laid the chargesheet against all the five accused
Though the appellants admitted the earlier criminal prosecutions between the parties totally denied their complicity with the offence of murder
Of the witnesses examined PWs 4 and 5 corroborated the testimony of PW 1 but PW 3 was declared hostile as this witness mentioned only the name of the first appellant and denied participation of rest of the appellants and Braham Singh and also the presence of the ocular witnesses except PW 5
The trial court however found accused Nos 1 to 4 all the appellants herein alone guilty of the offence convicted and sentenced them as aforementioned and acquitted the 5th accused Braham Singh
On appeal the High Court accepted the testimony of PWs 1 4 and 5 holding that they are giving a consistent version in regard to the participation of the appellants in attacking the deceased and agreed with the finding of the trial court that these appellants were responsible for inflicting the injuries on the deceased Bali and PW 5
But coming to the nature of the offence perpetrated on the deceased the High Court held the offence as one punishable under section 304 Part II but not under section 302 IPC and consequently altered the conviction and the sentence as indicated above while retaining the conviction under section 323 against all the appellants for causing injuries to PW 5
Hence the present appeals are directed by the appellants who were accused Nos 1 to 4 before the trial court
Mr Maheshwari Senior Counsel appearing on behalf of the appellants in both the appeals forcibly contended that since both the courts below have overlooked the glaring infirmities and ignored the material evidence supporting the defence theory as well as the manifest errors appearing in the evidence this Court would be justified in interfering with the concurrent findings of both the courts otherwise substantial injustice would be caused to the appellants
According to the learned counsel the prosecution has shifted the scene of occurrence changed the time of occurrence unduly delayed the registration of the case and put forth a false explanation for its tardiness both in the matter of registration and investigation of the case that PW 9 the investigating officer has deliberately feigned ignorance of the receipt of exhibit Kha 1 in order to shield his indolence and failure in immediately and promptly taking up the investigation that PW 1 and 4 in order to ventilate their grievance which they were bearing against the appellant s party on account of the previous 690 animosity and simmering feelings that existed between them and to settle their personal scores that the credibility of these two witnesses is impaired and their testimony is successfully impeached
The learned defence counsel further states that a thorough and strict scrutiny of the evidence furnished by PWs 1 3 and 4 shows that the entire prosecution story in concocted fanciful and incredible and as such it deserves to be rejected with scorn and that both the courts below have completely pretermitted all the pitfalls in the prosecution and have summarily disposed of the case without subjecting the evidence under the usual test of scrutiny
Before we analyse the above contentions with reference to the evidence adduced by the prosecution and see whether the prosecution case suffers from any illegality and the conclusion of the courts below from perversity we shall deal with the scope of interference of this Court in an appeal arising from concurrent findings of fact
This Court in The State of Madras vs A Vaidyantha Iyer  at 588 while interpreting the scope of Article 136 of the Constitution has ruled as follows In article 136 the use of the words Supreme Court may in its direction grant special leave to appeal from any judgment decree determination sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India shows that in criminal matters no distinction can be made as a matter of construction between a judgment of conviction or acquittal
Having made the above rule it has been said that the interference by the Supreme Court will be called for even with the findings of fact given by the High Court if the High Court has acted perversely or otherwise improperly
Jaganmohan Reddy J agreeing with the view taken in Vaidyanatha Iyer s case has observed in Himachal Pradesh Administration vs Shri Om Prakash thus In appeals against acquittal by special leave under Article 136 this Court has undoubted power to interfere with the findings of fact no distinction being made between judgments of acquittal and conviction though in the case of acquittals it will not ordinarily interfere with the appreciation of evidence or on findings of fact unless the High Court acts perversely or otherwise improperly
691 Again in Balak Ram vs State of UP 1975 3 SCC 219 at page 227 this Court held as follows The powers of the Supreme Court under Article 136 are wide but in criminal appeals this Court does not interfere with the concurrent findings of fact save in exceptional circumstances
 In Arunachalam vs PSR Sadhananthan  at page 487 this Court while reinstating the principles laid down in Vaidyanatha Iyer  Om Prakash cases has stated thus The power is plenary in the sense that there are no words in Article 136 itself qualifying that power
But the very nature of the power has led the Court to set limits to itself within which to exercise such power
It is now the well established practice of this Court to permit the invocation of the power under Article 136 only in very exceptional circumstances as when a question of law of general public importance arise or a decision shocks the conscience of the Court
But within the restrictions imposed by itself this Court has the undoubted power to interfere even with findings of fact making no distinction between judgment of acquittal and conviction if the High Courts in arriving at those findings has acted perversely or otherwise improperly
See also State of UP vs Hamik Singh  Ors and State of UP vs Pheru Singh  ORs
 1989 Supp 1 SCC 288 to which one of us section Ratnavel Pandian J was a party
Bearing the above proposition of law we shall now examine the evidence and see whether the concurrent findings of fact call for an interference
With regard to the place of occurrence learned counsel drew our attention to the first information report and to the evidence of the witnesses including that of PW 9 and pointed out that the prosecution had changed the scene of occurrence
In the first information report under column place of occurrence  it is mentioned as Jungle Village Ganeshpur 
PW 1 in his cross examination has admitted that the Chak  in which the murder took place is situated in the jungle of village Bhandora and not in the jungle of village Ganeshpur
A suggestion though denied has also been made by the defence to PW 1 that 692 they have changed the place of occurrence from Ganeshpur to Bhandora
PW 2 who was then the Head Constable attached to Hastinapur Police Station states that on submission of exhibit Ka 1 by PW 1 he prepared a chik report exhibit Ka 2 and that he mentioned the place of occurrence as jungle of village Ganeshpur only on the basis of the written report
It is the evidence of PW 9 that he reached village Bhandora and did spot inspection thereby admitting that the place of occurrence was village Bhandora and not Ganeshpur
a scrutiny of exhibit KA 1 shows that PW 1 did not give the specific place of occurrence in that earliest document
It appears from the evidence of PWs 1 and 9 as well as the entry under column No 2 of the First Information Report that the prosecution was probing in darkness even in respect of the place of occurrence
Even in exhibit Ka 3 a memo prepared by PW 9 for seizure of the blood stained earth the place of occurrence is not mentioned
Hence we hold that the submission made on behalf of the defence even at the threshold that the place of occurrence is changed or at any rate not specifically fixed cannot be said to be without force
We shall then scrutinise the evidence with regard to the time of occurrence
According to the prosecution the occurrence took place at about 100 pm on 23121976
Immediately after the occurrence the injured Bali  PW 5 were brought to the hospital which is at a distance of three miles from the scene of occurrence
exhibit Kha 1 was prepared by the Medical Officer ie PW 6 on examing Bali
exhibit Ka 7 is a report prepared by medical officer PW 6 relating to the injuries found on PW 5
This document exhibit Ka 7 reveals that PW 5 was examined at about 330 pm
Therefore the injured Bali could have been examined by PW 6 earlier to 330 pm
It may be mentioned here what PW 1 has stated that they reached the hospital approx between 2 and 3 pm
The medical officer has opined that the injuries found on the injured could have been caused within six hours
When a specific question had been addressed to this medical officer PW 6 as to whether the injuries could have been caused at about 56 am he would say It could have been caused at 8 O clock
We are not rejecting the case of the prosecution on this admission of the medical officer stating that the probable time of the causation of the injuries could be 8 am
But the question would be even admitting that the occurrence took place at about 1 pm whether the prosecution convincingly and satisfactorily established the guilt of the appellants by leading cogent and reliable evidence
693 The next important point for determination is whether the case has been promptly registered and the investigation proceeded without causing undue delay thereby giving no room enabling the prosecution party to deliberately concoct a case against these four appellants
It transpires from the evidence of PW 6 that he sent the information under exhibit Kha 1 to the Police Station through his peon intimating the fact of Bali having been bought to the hospital with a number of bleeding injuries in a very serious condition and also of PW 5 having been admitted in the hospital for treatment of the injuries sustained by her and the said document exhibit Kha 1 was sent by 430 pm on 23121976 itself and the hospital s peon had brought the Receipt evidencing the handing over of the intimation to the police
It is only thereafter that PW 1 prepared exhibit ka 1 and handed it over to PW 2 at about 8 pm on 23121976
According to PW 2 after registration of the case a death memo was received at the Police Station at about 815 pm saying that Bali had expired in the hospital at about 740 pm
According to PW 1 the distance between the hospital and the police station is about 1 or 2 furlongs and that the police station is not situated near the hospital
Nonetheless PW 1 would admit when confronted further that the distance between the gates of the hospital and the police station would be about 50 steps
Be that as it may the fact ramains that both the hospital and the police station are situated within a very short distance
Admittedly neither PW 1 nor any of PWs 3 and 4 went to the police station to inform about the occurrence though they reached the hospital even by 2 pm
The only explanation given by PW 1 is that he was busy enquiring about the condition of his brother
This explanation of PW 1 is totally unacceptable because after both injured persons namely Bali  PW 5 were brought to the hospital they were examined only by the medical officer PW 6
There was nothing preventing either PW 1 or any of the other witnesses in going to the police station and informing the police if really they were eye witnesses to the occurrence and were in the hospital from 2 pm onwards leaving apart PW 5 who was undergoing treatment in the hospital
The delayed preparation of exhibit Ka 1 by PW 1 at the hospital after seven hours of the occurrence and that too after the death of his brother leads to an indelible impression that PW 1 and other interested persons who were enimically disposed towards the appellants should have prepared exhibit Ka 1 after due deliberation and consultation
The abortive explanation for not going to the police station for six hours after reaching the hospital is unworthy of credence
694 The next and even more important point for consideration is the much delayed investigation
The conduct of PW 9 in not taking an immediate action even after exhibit Kha 1 was handed over at the police station by 430 pm or at any rate after receipt of Ka 1 and the death intimation creates a suspicion in the veracity of the prosecution case
Though PW 2 admits that he received the death intimation by about 815 pm PW 9 the investigating officer has feigned total ignorance about exhibit Kha 1 stating thus Before this FIR no intimation was received at the police station about this occurrence that Bali was injured and admitted in the hospital and his condition was critical
It is wrong that any information was received at the Police Station before this FIR which I am concealing
I do not know whether exhibit Kha 1 was received in the police station or not
During the investigation exhibit Kha 1 never came to my knowledge
This paper came to my knowledge during the investigation and I made a copy of this in the case Diary
I do not know whether this Letter was recorded in the General Diary or not
No copy of GD is recoorded in my case diary in connection with exhibit Kha 1
No such note is there in my case diary that I had seen any GD which is related to Ex Kha 1
I have not recorded any statement of the HM relating to exhibit Kha 1
 We shall examine whether PW 9 took up the investigation at least after registration of the case without causing further delay
PW 2 states that the investigating officer took up the investigation at about 8 pm on 23121976 and went to the hospital and returned to the police station only on the next day ie 24121976 at 950 pm PW 9 has lodged in his presence by PW 1 and that he immediately took up the investigation during the course of which he examined PW 1 and then come to the hospital where he examined the medical officer Dr BD Goel PW 6 and saw the dead body lying in the male ward
He continues to state that as PW 5 was in an unconscious condition he could not examine her and as the light went off he could not prepare even the Panchnama
This piece of evidence of PW 9 that he took up the investigation even at 8 pm is not only contradicted but also falsified by the testimony of PW 1 according to whom after lodging the report he immediately came back to the hospital and remained there till next morning and that the Sub Inspector PW 9 came to the hospital for the first time in the morning of 24121976 and only thereafter he was 695 examined
PW 4 also states that the investigating officer came to the hospital only in the next morning
PW 6 the medical officer does not speak of the Sub Inspector having came to the hospital on the night of occurrence and has stated that he did not remember of the Sub Inspector or any constable reaching the hospital after receipt of the death intimation or any one examining him on that date
The said pieces of evidence namely the total unawareness of PW 9 about the existence of exhibit Kha 1 as well as the entry in the general diary made thereon and the diametrically contradictory evidence of PW 9 on the one hand and that of PWs 14 and 6 on the other clearly indicate that either PW 9 did not have any knowledge about the incident till the next morning or even if he had such knowledge he deliberately delayed the investigation and his present version is nothing but a deliberate perjury and as such his evidence has to be thrown overboard as unworthy of credence
In the cross examination it is admitted by PW 9 that he did not write the names of the appellantsaccused in the Panchnama and that he did not try to know the kinds of weapons that had been used by the assailants
On the basis of this admission a suggestion had been addressed to him that the FIR relating to this incident was prepared and lodged only after preparation of the Panchnama thereby indicating that the FIR was anti dated
We shall now scan the evidence of PWs 1 3 and 4 examine whether their evidence could be accepted and acted upon
Admittedly there was deep rooted animosity between the prosecution party and the appellants over a period of some years and they have developed bad blood
It is the evidence of PW 1 that there were a number of criminal cases against deceased Bali along with one Birbal Kishore and Omi who were persons of notorious character in that village
Besides there were some more cases and counter cases between the parties
A suggestion has been addressed to PW 1 that his brother Bali was having close connection with one Ramanand who was a known decoit belonging to their village but PW 1 has denied the relationship of Bali with Ramanand
PW 4 admits that there was a dispute between Bali and the appellants in which Bali had beaten them and in that case he was a co accused along with PW 1 and deceased Bali
PW 3 who has been treated as a hostile witness since he did not implicate all the appellants by their names except Chandroo has admitted that there was a case against Bali and Birbal Kishore in which he was a witness on the side of Bali and that there was a double murder case in which he PW 3 was an accused and convicted
In that murder case one Roop 696 Ram cousin of appellant Chndroo was a witness on the prosecution side
Thus it comes out of the evidence of these witnesses that all was not well between the parties and each one was having grudge against the other
As pointed out by Mr Maheshwari learned counsel appearing for the appellants the conduct of PW 1 belies his presence at the sence of occurrence as he did not intervene when his brother deceased and sister in law PW 5 were attacked by the appellants and another and if PW 1 had really been at the scene he having been a co accused along with his brother in previous case would not have been standing as a mute spectator without taking any part in the occurrence in which case he would also have received injuries
In exhibit Ka 1 he has mentioned PWs 3 and 4 as eye witnesses who were enemically disposed of towards the appellants and who were interested in the prosecution
As seen from the evidence of these three witnesses they all belong to one group either having been co accused in one case or other along with Bali or taking up the cause of Bali when the latter was involved in other criminal cases
In fact one sentence in exhibit Ka 1 would indicate that PWs 1 3 and 4 were not at the scene at the time of occurrence but came to the spot later on
The relevant version in exhibit Ka 1 reads On alarm I and my uncle Chotte Lal and Shiv Charan of the village reached the spot and saved them Of course he at the next breath would claim to have witnessed the occurrence
We have also noted that the place of occurrence is not satisfactory fixed and that the evidence of PW 1 giving the reasons for the presence of his deceased brother with PW 5 in the field is also falsified by the evidence of PW 9
According to PW 1 his deceased brother and PW 5 were harvesting sugarcane in the field at the time of occurrence
But PW 9 has deposed that at the time of spot inspection he did not find any Bugi Dokra Phawara Dranti or harvested sugarcane
This contradictory evidence when taken along with our finding with regard to the fixation of the scene of occurrence goes to show that PW 1 could not have been present at the scene of occurrence and only after a deliberation he has posed himself as one of the eye witnesses and projected PWs 3 and 4 as other eye witnesses along with him
PW 4 during the course of cross examination has admitted that except himself PWs 1  5 none reached the scene and people came to the scene of occurrence later on
After reaching the hospital along with injured PW 4 states that all of them remained in the hospital near the dead body and that he went to the police station in the morning of the next day at about 700 am As we have pointed out earlier PW 3 has not implicated all the appellants except Chandroo by name and as such he has been treated 697 as a hostile witness
PW 3 is none other than the uncle of PW 1 and the deceased therefore in view of the inherent infirmities adversely affecting the testimony of these eye witnesses it would not be safe to convict the appellants on the scanty evidence
The author of the earliest document exhibit Ka 1 namely PW 1 seems to be a man of dubious character and his evidence is completely tarnished
A thorough scrutiny of the evidence shows that the testimony of the eye witness is ambulatory and vacillating and compels this Court not to place any safe reliance
Lastly we are left with the evidence of PW 2 who is an injured witness
The presence of PW 2 at the scene is fortified by the injuries found on her person
After scanning her evidence very carefully we are unable to safely accept her evidence since it is not only tainted with highly interestedness but also a coloured version falling in line with that of PW 1
She states that she was unconscious for 2 days and that it was she who told PWs 1 and 4 as to who were the assailants
Immediately in the next breath PW 5 comes forward to say that on the next day she told all the facts to the investigating officer and again became unconscious after coming to know the death of her husband
To a Court question she gives a prevaricating answer that she was conscious for some time and then became unconscious
Though at one time she testifies that she was beaten with sticks she suddenly changes her evidence giving a contradictory version that she did not know whether she was beaten or not
Though all the witnesses in a parrot like manner deposed that these 4 appellant along with Braham Singh armed with ballam attacked the deceased their evidence when subjected to strict examination becomes unworthy of credence
The Trial Court on entertaining a grave doubt about the participation of Braham Singh with a ballam acquitted him despite the fact that PW 6 has noted a stab wound on the inner side of left thigh measuring 2 x 1 x 15 cms which injury in the opinion of the medical officer could have been caused by a sharp edged weapon like ballam
The acquittal of Braham Singh was not challenged by the prosecution before the High Court and therefore we are not called upon to discuss on this aspect of the case
However it is clear that the trial Court was not inclined to accept a part of the evidence of these 3 witnesses ie PWs 1 4  5 relating to the participation of Braham Singh
In our considered opinion the evidence adduced by the prosecution falls short of the test of reliability and acceptability and as such it is highly unsafe to act upon it
698 A thorough and scrupulous examination of the facts and the circumstances of the case leads to an irresistible and inescapable conclusion that the prosecution has miserably failed to establish the charges levelled against these appellants by producing cogent reliable and trustworthy evidence
Both the Courts below instead of dealing with the intrinsic merits of the evidence of the witnesses have acted perversely by summarily disposing of the case pretermitting the manifest errors and glaring infirmities appearing in the case
For all the aforementioned reasons we allow the appeals by setting side the convictions and the sentence imposed by the High Court and acquit the appellants
The bail bonds executed by the appellants are discharged
RSS Appeals allowed


Summary:
Appellant s business and residential premises were raided by the Customs Department as a result whereof gold ingots with foreign marks gold ornaments silver bricks coins and a cash of Rs79000 was seized
The Assistant Collector of Customs filed two separate complaints relating to the said incident against the appellant before the Judicial magistrate one for violating the provisions of and the other under the Gold Control Act 1968
In the trial after the close of evidence by both sides prosecution as also defence arguments were advanced on behalf of the accused appellant
The prosecution at that stage before commencing its arguments filed two applications in both the cases under Section 540 of the Old Code corresponding to section 311 of the new Code requesting the trial court to recall one witness viz the Seizing officer and issue summons to two more witnesses for examination either as prosecution witnesses or as court witnesses
The trial magistrate rejected both the application and the revision petitions preferred by the respondents against that order failed before the Sessions Judge
The Union of India thereupon preferred two revision applications before the High Court
The State of Gujarat also preferred separate revision applications before the High Court
The High Court allowed the revision petitions and directed examination of the three witnesses sought to be summoned
Being aggrieved the appellant has filed these appeals after obtaining special leave against the decision of the High Court in the revision applications filed by the Union of India
No appeal has been filed against the order passed by the High Court in the revision applications filed before it by the State of Gujarat
The main contention of the appellant is that the High Court erred in allowing the second revision application in view of the provisions of section 3973 of the new Code thus permitting the prosecution to fill up the lacuna and plug the loopholes in its case which is prejudicial to the appellant
713 Dismissing the appeals this Court HELD Though Section 540 Section 311 of the new Code is in the widest possible terms and calls for no limitation either with regard to the stage at which the powers of the court should be exercised or with regard to the manner in which they should be exercised that power is circumscribed by the principle that underlines section 540 namely evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means
The aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capricicously or arbitrarily
Due care should be taken by the court while exercising power under this section and it must not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties
721B E Whenever any additional evidence is examined or fresh evidence is admitted against the accused it is absolutely necessary in the interests of justice that the accused should be afforded a fair and reasonable opportunity to rebut that evidence brought on record against him
725E The Criminal court has ample power to summon any person as a witness or recall and re examine any such person even if the evidence on both sides is closed and the jurisdiction of the court and must obviously be dictated by exigency of the situation and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case
724C D The facts and circumstances of the case require the examination of these three witnesses for a just decision of the case as held by the High Court
726G Jamatraj Kewalji Govni vs State of Maharashtra   Rameshwar Dayal vs State of UP   State of West Bengal vs Tulsidas Mundhra at 207 Masalti vs State of UP AIR 1965 SC202 Rajeshwar Prasad Misra vs State of West Bengal and Anr
  RB Mithani vs 714 Maharashtra AIR 1971 SC 1630 Channu Lal vs R AIR 1949 All 692 Rengaswami Naicker vs Muruga Naicker AIR 1954 Mad 169 Shugan Chand vs Emperor AIR 1925 Lah 531 and The Queen vs Assanoolah 13 SWR Crl 15 referred to
Mir Mohd Omar and Others vs State of West Bengal  distinguished