JUDGMENT
J.M. Panchal, J.
1. Rule. Ms. Sadhana Sagar, learned Counsel assisting the respondent, who is appellant in Criminal Appeal No. 2076 of 2004 filed from jail, is appointed as amicus curiae to assist the respondent in this application. Ms. Sadhana Sagar, learned Counsel, waives service of notice on behalf of the respondent. Having regard to the facts of the case, the application is heard today.
2. By filing instant application under Section 391 of the Code of Criminal Procedure, 1973, the State of Gujarat has prayed to permit it to lead additional evidence of the girl, who was victim of rape, and direct the learned Sessions Judge, Navsari to record her evidence with the help of an interpreter and certify such evidence to this Court so as to enable this Court to proceed to dispose of the appeal filed by the respondent.
3. Heard the learned Counsels of the parties. The record indicates that the respondent has moved Criminal Appeal No. 2076 of 2004 under Section 374(2) of the Code of Criminal Procedure, 1973, questioning legality of judgment dated October 28, 2004 rendered by the learned Sessions Judge, Navsari, in Sessions Case No. 37 of 2004, by which he is convicted under Sections 376 and 323 IPC, and sentenced to suffer RI for 10 years and fine of Rs. 200/- (Rupees Two Hundred Only), in default SI for 1 month for commission of offence punishable under Section 376 IPC as well as SI for 6 months and fine of Rs. 200/- (Rupees Two Hundred Only), in default SI for 1 month for commission of offence punishable under Section 323 IPC.
4. The case of the prosecution, in short, is that the respondent is foster-father of victim, who is deaf and dumb since birth. According to the prosecution, her mother, who is complainant, came to reside with the respondent, after the death of her husband, Rameshbhai, with the dumb girl. It is the case of the prosecution that the respondent committed rape on the victim when her mother was away doing labour work. In order to prove its case against the respondent, the prosecution has examined 14 witnesses and also produced documentary evidence.
On appreciation of evidence adduced by the prosecution, the learned Judge of the trial Court has believed the prosecution-case and convicted the respondent under Sections 376 and 323 IPC. Feeling aggrieved, the respondent has filed Criminal Appeal No. 2076 of 2004 which is pending for disposal. During the course of admission hearing of the appeal, it was noticed that the victim was neither cited as a witness in the charge-sheet nor examined by the prosecution during the trial. It is mentioned in the application that non-examination of the victim girl by the prosecution would amount to failure of justice so far as the victim is concerned, and that the victim should not suffer on account of any inefficiency or inadvertence of the prosecuting agency and, therefore, examination of the victim girl has become necessary by permitting the applicant to lead additional evidence in appeal filed by the respondent. It is mentioned in the application that the community, acting through the State and the Public Prosecutor, is entitled to justice and as the community or the State is not a persona non grata, whose cause may be treated with disdain, the application for additional evidence should be granted. It is mentioned that the victim girl, on whom rape was committed, is not at fault at all and, therefore, the prosecution-case should not be permitted to suffer merely because of some carelessness exhibited by prosecuting agency while conducting the trial. Under the circumstances, the applicant has filed instant application and claimed relief to which reference is made earlier.
5. Heard the learned Counsels of the parties. The object of Section 391 is the prevention of guilty person’s escape through some careless or ignorant proceedings of learned Sessions Judge or vindication of wrongfully accused person’s innocence. It was the duty of the prosecuting agency to examine the victim girl in order to bring home the charge levelled against the respondent. Even the defence did not insist for examination of victim girl nor the learned Judge of the trial Court thought it fit to direct the prosecuting agency to examine the victim. Section 391 forms an exception to the general rule that an appeal must be decided on the evidence which was before the Court. It is true that being an exception to the general rule, the powers under it must always be exercised with circumspection and for meeting the ends of justice. Relying on the decision in Rajeswar Prasad Misra v. State of West Bengal, AIR 1965 SC 1887, this Court in Gulammohmed Mohamed Yusuf Saiyed v. State of Gujarat, 1994 (2) GLH 82, has held that if the trial already held is found to be unsatisfactory or leads to failure of justice, additional evidence can be recorded. The plea that statement of victim girl was not recorded by the police and, therefore, permission to examine her as a witness should be refused, has no substance. It is true that police statement of the victim was not recorded during course of investigation. However, as explained in State of Gujarat v. Soni Champaklal Somabhai, , a Judge cannot refuse permission to the prosecution to examine a witness at the trial on the ground that his statement was not recorded under Section 161 of the Code. Ordinarily, the prosecution must record the statements of all witnesses whom it proposes to examine as its witnesses. But, if no statement of a witness under Section 161 has been recorded, and hence, the accused is not supplied with the copy of the statement of the witness, which is a requirement of Section 173, the Judge cannot refuse permission to the prosecution to examine the witness at trial because under Section 231 of the Code, the Judge is bound to take all such evidence as may be produced in support of the prosecution. The provision in Section 173 of the Code, requiring the police to give copies of statements to the accused has been introduced because the whole procedure has been simplified. The failure to comply with provisions of Section 173 may, in a given case, effect the value of evidence, but, it cannot affect the mandatory character of Section 231 of the Code. Hence, plea that police statement of the victim was not recorded and, therefore, prayer made in the application should be refused, is hereby rejected.
6. On reconsideration of evidence on record, this Court is of the opinion that interest of justice demands that this Court must have evidence of the victim girl. The judgment impugned in the appeal as well as record of the case unerringly establishes that the learned Judge of the trial Court has accepted the evidence of expert, Babubhai Sadabhai, examined at Exh. 23 in view of facts stated by him that were made understandable to him by signs by the victim. There is a special provision in Indian Evidence Act, 1872, namely Section 119, prescribing manner in which evidence of a dumb witness can be recorded. This is a rape case wherein the victim is dumb. Therefore, her evidence should have been recorded, as contemplated by Section 119 of the Indian Evidence Act. Even for determining culpability or otherwise of the respondent, it is necessary for this Court to have evidence of the dumb victim. It is well settled that when necessary evidence is not produced, because of inefficiency or inadvertence of the person conducting the case or the trial, the appellate Court would be justified to take additional evidence, essential for just decision of the case. To deny the opportunity to remove the defect is to abort case against the respondent, who is a rapist. Rape is a crime against basic human rights and violative of right to life contained in Article 21 of the Constitution. Rape is not only a crime against the person of a victim, it is a crime against the entire society. Ends of justice are not satisfied only when an accused is acquitted in a criminal case. The community, acting through the State and the Public Prosecutor, is also entitled to justice. The case of the community deserves equal treatment at the hands of the Court. The Community or the State is not a persona non grata whose case may be treated with disdain. The entire community is aggrieved if the rapist, who destroys the entire psychology of the victim and pushes her into deep emotional crises for whole life, is not brought to book. A disregard for the interest of the community and the victim of rape can be manifested only the cost of forfeiting the trust and faith of the community reposed in Court. On the facts and in the interest of justice, this Court feels that the applicant should be permitted to record additional evidence in appeal filed by the respondent and direction should be given to the learned Sessions Judge to record evidence of the victim girl. The application, therefore, deserves to be accepted.
7. For the foregoing reasons, the application succeeds. The applicant is permitted to lead evidence of the victim girl. The learned Sessions Judge, Navsari, is directed to record the evidence of victim girl with the help of an interpreter as early as possible, and preferably, within two months from the date of receipt of writ of this Court. After recording of evidence is over, the same shall be certified to this Court, as required by Section 391(2) of the Code of Criminal Procedure, 1973, so as to enable this Court to proceed with the hearing of the appeal filed by the respondent. Rule is made absolute accordingly.