Manoj Kumar Tiwari, J
1. This Criminal Miscellaneous Application under Section 482 Cr PC is filed, challenging order dated 21.02.2015, passed by learned Ist Additional
Sessions Judge, Udham Singh Nagar, in Criminal Appeal No. 30 of 2013. By said judgment, application under Section 391 CrPC, filed by complainant
was allowed.
2. It transpires that respondent No. 2 lodged an FIR against applicants in Police Station, SIDCUL, Pant Nagar on 30.07.2006 and upon investigation,
chargesheet was filed against applicants under Sections 323, 325, 504, 506 IPC. Learned trial court convicted the applicants for offence punishable
under Sect ion 323 I PC and sentenced them to six months’ imprisonment with fine of Rs. 500/ - each and, acquitted them of the charge of
offences punishable under Sections 325, 504, 506 IPC vide judgment and order dated 23.01.2013.
3. Dissatisfied with the punishment given to the accused persons, respondent No. 2 filed appeal against trial court’s judgment, which is registered
as Criminal Appeal No. 30 of 2013 and is pending. In the said appeal, respondent No. 2 moved an application under Section 391 Cr PC, for adducing
additional evidence which was allowed vide order dated 21.02.2015. Applicants are aggrieved by said order.
4. Heard learned counsel for the parties and perused the record.
5. Applicants were acquitted of the charge under Section 325 CrPC for the reason that, neither X-ray plate was produced to prove the nature and
gravity of injuries sustained by respondent No. 2 nor the radiologist was examined, as witness for bringing home the charge of Section 325 I.P.C.
6. In the aforesaid appeal, complainant (respondent No.2), moved an application under Sect ion 391 CrPC stating that, X-r ay plate and report dated
31.07.2006 are available in the record maintained by concerned government hospital, therefore, Principal Medical Superintendent of the concerned
hospital may be directed to produce X- r ay plate/ X-ray report before the Court and the radiologist may also be summoned and examined by the
Court.
7. The appellate Court allowed the application for adducing additional evidence filed by respondent No. 2, vide order dated 21.02.2015. Learned
appellate Court observed t hat original medical report and supplementary medical report of the injured, Mr. P.P. Arora, are part of record of the trial
Court, however, prosecution failed to produce the X- ray report dated 31.07. 2006 in respect of injured, P.P. Arora. Learned appellate Court has
observed that if examination of the radiologist was necessary to bring home the charge under Section 325 IPC, then it was the duty of the trial Court
to sum m on and examine the radiologist. The appellate Court further observed that the appeal has not been filed by the prosecution, but by the injured
himself.
8. Section 391 CrPC enables appellate court to take further evidence or direct it to be taken. For ready reference, Section 391 CrPC is extracted
below: -
“391. Appellate Court may take further evidence or direct it to be taken â€
(1) In dealing with any appeal under this Chapter, the Appellate court, if it thinks additional evidence to be necessary, shall record its reasons and may
either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court 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 shall thereupon proceed to dispose of the appeal.
(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.
(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXI II, as if it were an injury.â€
9. Learned counsel for applicants submitted that the impugned order, is unsustainable as the prosecution had sufficient opportunity to bring X- ray
report / plate on record and also to summon the radiologist as witness before trial court and if prosecution failed to discharge it s bur den during trial,
then it cannot be permitted to fill in the lacuna at appellate stage. In support of this contention, learned counsel for applicants relied upon judgment
rendered by Hon’ble Supreme Court in the case of Rambhau and another vs. State of Maharashtra reported in (2001) 4SCC 759.
10. Learned counsel for applicants further submitted t hat it is settled position in law that if two reasonable conclusions are possible based on evidence
on record, then appellate Court should not disturb the finding of acquittal recorded by trial Court, as held in the case of Sadhu Saran Singh Vs. State
of UP and others, reported in (2016) 4 SCC 357.
11. The judgment rendered in the case of Sadhu Saran Singh (supra) does not support the applicants. Appellate Court has not disturbed finding of
acquittal recorded by the trial Court and it has merely permitted additional evidence to be taken on record. Additional evidence can be accepted on
record if the appellate Court thinks such additional evidence to be necessary for deciding an appeal.
12. Per contra, Mr. R.S. Sammal, learned counsel for respondent No. 2 relied upon judgment rendered by Hon’ble Supreme Court in the case of
Ashok Tshering Bhutia Vs. State of Sikkim reported in (2011) 4 SCC 402. He refers to para 28 and 29 of the said judgment, which are
extracted below : -
“Additional Evidence
28. Additional evidence at the appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only
in exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon
the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play,
justice and the well- being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity.
29. The primary object of the provisions of Sect ion 391 Cr PC is the prevention of a guilty man's escape through some careless or ignorant action on
part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the
circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary. [Vide Rajeswar
Prasad Misra v.State of W.B.[AIR 1965 SC 1887 : (1965) 2 Cri LJ81]R, atilalBhanjiMithani v. State of Maharashtra [(1971) 1 SCC 523 : 1971
SCC ( Cr i) 231 : AIR 1971 SC 1630]R, ambhau v. State of Maharashtra [( 2001) 4 SCC 759 : 2001 SCC ( Cr i) 812 : AI R 2001 SC 2120]A, nil
Sharma v .State of Jharkhand [ ( 2004) 5 SCC 679 : 2004 SCC ( Cr i) 1706 : AI R 2004 SC 2294]Z, ahira Habibulla H.Sheikh v.State of
Gujarat [(2004) 4 SCC 158: 2004 SCC (Cr i) 999] and Manu Sharma v.State (NCT of Delhi) [ ( 2010) 6 SCC 1 : ( 2010) 2 SCC ( Cr i) 1385 : AI R
2010 SC 2352]
13. Learned counsel for respondent No. 2, further submitted that his client had handed over all documents/ evidence in respect of the injuries sustained
by him to the investigating officer; however, investigating officer, for reasons best known to him, did not place those documents on record, which
resulted in miscarriage of justice as accused persons were acquitted of the charge under Section 325 I.P.C.
14. He further submitted that learned appellate Court is right in observing that it was the duty of the trial Court to summon the radiologist and other
evidence available in Jawahar Lal Nehru District Hospital, Rudrapur, if that was necessary to bring home the charge under Section 325 I.P.C. against
the accused per sons and acquittal of the accused per sons for the said offence, despite availability of cogent evidence in a government hospital, has
resulted in miscarriage of justice. He submits that by allowing the application under Sect ion 391 Cr PC, learned appellate Court has merely permitted
production of certain documents/ reports which are lying in record room of the government hospital. Thus, he submits that no new evidence has been
permitted to be brought on record and whatever documents are available in the concerned government hospital, have been permitted to be placed on
record. Thus, he submits that learned appellate Court has exercised its power under Section 391 CrPC, to secure ends of justice and any interference
with the said order would result in miscarriage of justice. He submits that accused persons cannot get benefit of lapse on the part of prosecution of not
bringing the material evidence on record and the mistake committed by prosecution has rightly been undone by appellate Court.
15. He further submitted that factum of fracture suffered by complainant is proved by X- ray report and X- ray plate available in a government
hospital, therefore, that fact can very well be ascertained by appellate Court to ensure that a person who has committed a crime, do not escape due to
some careless or ignorant action on part of the prosecution.
16. Hon’ble Supreme Court in the case of Brigadier Sukhjeet Singh (Retired) MVCVS. State of Uttar Pradesh and other sr,eported in
(2019) 16 SCC 712 has summarised the legal position in para 26 of the judgment. Relevant extract of the said judgment is reproduced below: -
“24. Power to take additional evidence under Sect ion 391 is, thus, with an object to appropriately decide the appeal by the appellate court to
secure ends of justice. The scope and am bit of Sect ion 391 Cr PC has com e up for consider at ion before this Court inR ajeswar Prasad Misra v.
State of W.B. [Rajeswar Prasad Misra v. State of W.B., AI R 1965 SC 1887: (1965) 2 Cr i LJ 817] Hidayatullah, J., speaking for the Bench held
that a wide discretion is conferred on the appellate courts and the additional evidence may be necessary for a variety of reasons. He held that
additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice
without it. Following was laid down in paras 8 and 9: (AI R p. 1892)
8. … Since a wide discretion is conferred on appellate courts, the limits of that courts' jurisdiction must obviously be dictated by the exigency of the
situation and fair play and good sense appear to be the only safe guides. There is, no doubt, some analogy between the power to order a retrial and the
power to take additional evidence. The former is an extreme step appropriately taken if additional evidence will not suffice. Both act ions subsume
failure of justice as a condition precedent. There the resemblance ends and it is hardly proper to construe one sect ion with the aid of observations
made by this Court in the interpretation of the other section.
9. Additional evidence may be necessary for a variety of reasons which it is hardly necessary (even if was possible) to list here. We do not propose to
do what the legislature has refrained from doing, namely, to control discretion of the appellate court to certain stated circum stances. It m ay, however,
be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of
justice without it. The power must be exercised sparingly and only in suit able cases. Once such action is justified, there is no restriction on the kind of
evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the
accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not
ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise. â€
25. This Court again in Rambhau v. State of Maharashtra [ Ram bhau v.State of Maharashtra, (2001) 4 SCC 759 : 2001 SCC ( Cr i) 812] had
noted the power under Section 391 Cr PC of the appellate court . Following was stated in paras 1 and 2 : ( SCC p. 7 61)
“1. There is available a very wide discretion in the matter of obtaining additional evidence in terms of Section 391 of the Code of Criminal
Procedure. A plain look at the statutory provisions (Sect ion 391) would reveal the same…
2. A word of caution however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a
way so as to cause any prejudice to the accused. It is not a disguise for a retrial or to change the nature of the case against the accused. This Court in
Rajeswar Prasad Misra v.State of W.B. [Rajeswar Prasad Misra v. State of W.B, AI R 1965 SC 1887 : (1965) 2 Cr i LJ 817] in no uncertain
terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid
enough to record however, that it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred
by the Code, there ought not to be any hesitation in that regard.â€
26. From the law laid down by this Court as noted above, it is clear t hat there are no fetters on the power under Sect ion 391 Cr PC of the appellate
court . All powers are confer red on the court to secure ends of justice. The ultimate object of judicial administration is to secure ends of justice. Court
exists for rendering justice to the people.
17. In a recent judgment rendered in the case of Ajitsinh Chehuji Rathod Vs. State of Gujarat and Another, reported in (2024) 4 SCC 453,
Hon’ble Supreme Court has held that power to record additional evidence under Sect ion 391 Cr PC can be exercised w hen the party making
such request was prevented from presenting the evidence in the trial despite due diligence and that non - recording of such evidence may lead to
failure of justice.
18. In the present case, FI R was lodged by t he complainant for offences punishable under Sections 392, 323, 504 and 506 I PC; however, after
investigation, chargesheet was filed for offences punishable under Sect ions 323, 325, 504 and 506 I PC. It is thus apparent that Section 392 I PC was
dropped and Sect ion 325 I PC was added in the chargesheet , based on evidence collected during investigation.
19. In para 3 of trial Court’s judgment, it is mentioned that Section 325 IPC was added based on medical report and statement of wit nesses.
Therefore, it was incumbent upon the trial Court to summon X- ray report and the radiologist and examine them before recording acquittal of the
accused persons. Since this was not done by trial Court which resulted in acquit t al of accused per sons, therefore, learned appellate Court rightly
corrected the said mistake by permitting the complainant to bring additional evidence on record.
20. Thus, this Court does not find any reason to interfere with the discretionary order passed by learned appellate Court. Accordingly, C482
Application fails and is dismissed.
