- (1.) Heard learned counsel for the parties and perused the material available on record.
(2.) These two revision petitions have been preferred by the State of Rajasthan and the victim complainant respectively being aggrieved of the order dated 4.8.2015 passed by the learned Sessions Judge, Jodhpur District in Sessions Case No.152/2013 whereby, the application preferred by the prosecuting agency under Section 173(8) Cr.P.C. for placing on record the call details of some mobile numbers and the certificate issued by the nodal officer of the service provider and also to examine witness Bhushan Kumar and the witnesses in support of the documents, was rejected.
(3.) Facts in brief are that an F.I.R. No.122/2013 was registered against the accused respondents facing trial in this case on 21.8.2013 for the offences under Sections 342, 376(2) (f), 376D, 354A, 370(4), 506, 509/34, 109 and 120-B I.P.C., Sections 23 and 26 of the Juvenile Justice Act and Section 5(f) (g)/6, 7/8 and 17 of the POCSO Act. After initial investigation, an incomplete charge-sheet was filed against the accused on 6.11.2013 keeping the investigation pending under Section 173(8) Cr.P.C. The trial Court took cognizance of the offences against the accused on 27.11.2013. Charges were framed on 7.2.2014 and read over to the accused on 13.2.2014 who denied the same and claimed trial. The prosecution evidence commenced on 19.3.2014. A total of 43 witnesses were examined by the prosecution including the Investigating Officer Smt.Chanchal Mishra. The statement of the last prosecution witness Smt. Chanchal Mishra was started on 9.7.2015 and her examination-in-chief was completed on 22.7.2015. Presently, her cross examination is continuing. While the statement of Smt. Chanchal Mishra was still continuing, the Investigating Agency submitted a supplementary charge-sheet under Section 173(8) Cr.P.C. in the trial Court on 22.7.2015 wherein two additional pieces of evidence are proposed to be put up before the trial Court. The first part is by way of documentary evidence viz. the certified copies of the call details and the verification certificate of these call details issued by the nodal officer of the service provider. The other piece of evidence is in form of a statement of witness named Bhushan Kumar examined under Section 161 Cr.P.C. on 25.6.2015 who is also proposed to be examined as a prosecution witness at the trial. The application preferred by the prosecution was opposed by the accused before the trial Court. The trial Court rejected the said application by its order dated 4.8.2015, upon which, the State as well as the victim has approached this Court by way of these two revision petitions assailing the legality and validity of the said order. Learned Government Advocate Mr. S.K. Vyas a/w learned public prosecutor Mr.V.S. Rajpurohit, assisted by Ms.Priti Jain, DCP (West), I.O. and Ms.Seema Hingoniya, ACP and learned counsel Mr.P.C. Solanki vehemently contended that the call details and the certificate issued by the nodal officer of the service provider are vital pieces of evidence. They urged that in the application preferred by the prosecution, a specific prayer was made to take the documents on record and also to examine the witnesses relating to the documents. They urged that the call details which are very material and relevant for a just decision of the case were earlier procured by the Investigating Officer during the course of investigation through email. The Investigating Agency's witnesses in their own capacity have already proved these call details but in absence of the certified copies supported by a verification certificate issued by the authorised officer of the service provider, such call detail records would probably be treated to be secondary evidence and could possibly be excluded from consideration at the time of final decision of the case. They submitted that though the certificate issued by the nodal officer and the certified call details had been collected by the Investigating Officer in February, 2014, the same were inadvertently not filed on the record of the trial Court because the investigation was still continuing and the Investigating Agency was hopeful of being able to collect evidence of more material witnesses in order to bring the true facts on the record. They contended that the witness Bhushan Kumar who is none other than the driver of the main accused Asharam could be located and tracked down only in the month of June, 2015 whereafter his statement was recorded under Section 161 Cr.P.C. and soon thereafter the final supplementary charge-sheet was filed. They further contended that mere failure of the Investigating Agency to file the documents and statements of the witnesses on record in time could not have been the sole ground for rejecting the supplementary chargesheet filed before the Court under Section 173(8) Cr.P.C. It was further contended that if the evidence sought to be produced is necessary and essential for the just decision of the case, such evidence can be taken on record at any point of time till the judgment is pronounced. They contended that till now the prosecution evidence has not been concluded and, therefore, by no stretch of imagination, it can be said that the supplementary charge-sheet filed by the prosecution along with the documents and the statements of witnesses upon conclusion of investigation which was continuing under Section 173(8) Cr.P.C. is belated. They, therefore, contended that the trial Court committed a grave error of facts as well as law in rejecting the final charge-sheet and while disallowing the prosecution to lead evidence in light of the facts collected during subsequent investigation. In support of their submissions, they relied on the following judgments :- (1) State of W.B. vs. Salap Service Station & Ors., 1994 SCC(Cri) 1713. (2) Hasanbhai Valibhai Qureshi. vs. State of Gujarat, 2004 5 SCC 347. (3) Rama Chaudhary. vs. State of Bihar, 2009 AIR(SC) 2308. (4) Anvar P.V. vs. P.K. Basheer and others, 2014 AIR(SCW) 5695.;