Gujarat High Court
Asim @ Munmun @ Asif Abdulkarim Solanki vs State Of Gujarat on 10 April, 2019
Author: J. B. Pardiwala
Bench: J.B.Pardiwala, A.C. Rao
R/CR.A/249/2019 IA JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ADDITIONAL
EVIDENCE) NO. 7 of 2019
In
R/CRIMINAL APPEAL NO. 249 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
and
HONOURABLE MR.JUSTICE A.C. RAO Sd/-
=============================================
1 Whether Reporters of Local Papers may be YES allowed to see the judgment ?
2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy NO of the judgment ?
4 Whether this case involves a substantial question NO of law as to the interpretation of the Constitution of India or any order made thereunder ?
============================================= ASIM @ MUNMUN @ ASIF ABDULKARIM SOLANKI Versus STATE OF GUJARAT ============================================= Appearance:
MR YS LAKHANI, SENIOR COUNSEL WITH MR VAIBHAV A VYAS for the PETITIONER(s) No. MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR HK PATEL, ADDL. PUBLIC PROSECUTOR for the RESPONDENT(s) No. ============================================= CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR.JUSTICE A.C. RAO Date : 10/04/2019 IA JUDGMENT Page 1 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019 R/CR.A/249/2019 IA JUDGMENT (PER : HONOURABLE MR.JUSTICE A.C. RAO)
1. Rule returnable forthwith. Mr. H.K. Patel, the learned APP waives service of notice of rule for and on behalf of the respondent - State.
2. In the facts and circumstances of the case and with the consent of the learned counsel appearing for the respective parties, present application is taken up for final hearing today.
3. This is an application under Section 391 of the Code of Criminal Procedure, 1973 (for short "the Cr.P.C.") at the instance of a convict (original accused no.1) seeking to lead additional evidence in the Sessions Case No.105 of 2013, decided by the Additional Sessions Judge, Botad.
4. We take notice of the fact that in all four accused persons including the applicant herein were put on trial for the offence punishable under Sections 302, 397, 506(2) read with Section 114 of the Indian Penal Code and Section 135 of the Gujarat Police Act.
4.1 At the conclusion of the trial, the trial court convicted the applicant herein along with original accused No.2 for the Page 2 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019 R/CR.A/249/2019 IA JUDGMENT offence punishable under section 302 read with section 34 and 114 of Indian Penal Code and under section 135 of the Gujarat Police Act. The trial court also convicted the original accused No.2 for the offence punishable under section 25(1), (B), (A) of Arms. The trial court, however, acquitted the applicant and other three co-accused of the offences punishable under sections 397 and 506(2) of the Indian penal Code. The applicant has been sentenced to undergo life imprisonment with fine of Rs.25,000/-.
4.2 Against the judgement and order of conviction, the applicant has preferred Criminal Appeal No.249 of 2019. The appeal filed by the applicant herein has been admitted and is now pending for final hearing.
4.3 The case of the prosecution as unfolded in the course of the trial is that the PW No.28 - Khodabhai Jogarana was in the company of his friend namely Budho alias Vashrambhai at around 6.30 in the evening of 4th March, 2013. They both left on a motorcycle to pay their respects at one Ashram situated at Paliyad road at Botad. The PW No.28 was residing the motorcycle and his friend Vashrambhai was the pillion rider. While they were passing through Shubham Complex situated Page 3 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019 R/CR.A/249/2019 IA JUDGMENT at Paliyad road, they heard the sound of firing. They heard two shots of firing. On hearing the fire arm shots, they came back at the place where they heard the fire shots. They saw that near a hair cutting saloon, lots of people had gathered. The PW No.8 went inside the saloon and saw Kamlesh - the deceased on a saloon chair bleeding profusely. The PW No.28 saw the applicant herein and the original accused No.2 inside the saloon. In the saloon, two employees were also present. PW No.28 saw that the accused No.2 had a revolver in his hand and the applicant herein had a Farsi sharp cutting instrument in his hand. According to the PW No.28, at that time, the deceased was telling both the accused persons to hear him and also referred to one goddess Boot Bhavani. At that time, the accused No.2, once again fired a shot on the deceased. The accused No.2 asked the PW No.28 to leave immediately otherwise, he would also be done to death. PW No.28 on being frightened came out of the shop. Thereafter, the applicant herein and the accused No.2 brought Kamlesh outside the saloon and threw him down. The applicant herein is alleged to have inflicted injuries with the weapon in his hand on the face and head of the deceased. The companion of the PW No.28 namely Vashram told PW No.28 that the person with the Farsi in his hand was one Moonmoon i.e. the Page 4 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019 R/CR.A/249/2019 IA JUDGMENT applicant herein.
4.4 The trial court upon appreciation of the oral as well as documentary evidence on record, ultimately held the applicant herein and the original accused No.2 guilty of the offence of murder punishable under section 302 read with sections 34 and 114 of IPC. The applicant herein prays for suspension of the substantive order of sentence of life imprisonment pending the disposal of the Criminal Appeal filed by him against the judgement and order of conviction.
5. It is pertinent to note that the applicant had preferred an application for suspension of sentence which came to be rejected by this Court vide order dated 6th March, 2019.
6. Mr. Lakhani, the learned senior counsel appearing on behalf of the applicant has made the following submissions :-
The applicant was not present at the place of offence on the date and time of the alleged incident. He was not in Botad but was at Anand, which is almost 200 Kms. far from the place of the incident; the investigating officer in the course of the investigation recorded statements of many persons and from those statements, it is clear that the applicant was not in Page 5 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019 R/CR.A/249/2019 IA JUDGMENT Botad but was at Anand at the time of the incident; the investigating officer has admitted in his cross examination that the applicant was at Anand.
6.1 It is submitted that if the applicant is not permitted to produce additional evidence at this stage to substantiate his plea of alibi, then the defence of the applicant would be seriously prejudiced. It is submitted that the applicant, though innocent, has unnecessarily spent a long time in jail. It is submitted that the plea of alibi was clearly and unequivocally admitted by the Investigating Officers in their depositions before the trial court. It is submitted that, however, the learned defence lawyer for the applicant in the trial court had not thought fit to examine the defence witness in support of the plea of alibi. The trial court did not accept the plea of the alibi of the applicant only on the ground that the applicant did not examine any independent defence witness in support of his plea of alibi. It is submitted that after reading the judgement of the trial court, the applicant for the first time came to know that the evidence of the I.O. was not sufficient to establish his defence and therefore, now it is necessary to produce the evidence before the court and therefore, this application is required to be allowed. It is submitted that it is Page 6 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019 R/CR.A/249/2019 IA JUDGMENT the cardinal principle of criminal law that let hundred guilty go scote free, but one innocent be not convicted. It is submitted that the applicant is totally innocent and wrongly convicted and in order to prove his innocence, the applicant mat be permitted to examine the defence witnesses as prayed in the application.
6.2 Mr.Lakhani, the learned senior counsel appearing on behalf of the applicant has vehemently contended that under Section 391 of the Cr.P.C., the Court has wide powers which can be exercised to admit additional evidence. In support of his submission, the learned counsel has relied on the judgement of the Apex Court rendered in case of Rajeswar Prasad Misra vs. The State of West Bengal, reported in AIR 1965 SC 1887, wherein, in paragraph 9 it is held as under :
"9. Additional evidence may be necessary for a variety of reasons which it is hardly necessary (even if it 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 circumstances. It may, 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 suitable cases. Once Page 7 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019 R/CR.A/249/2019 IA JUDGMENT 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. Commentaries upon the Code are full of cases in which the powers under S. 428 were exercised. We were cited a fair number at the hearing. Some of the decisions suffer from the sin of generalization and some others from that of arguing from analogy. The facts in the cited cases are so different that it would be futile to embark upon their examination. We might have ,attempted this, if we could see some useful purpose but we see none. We would be right in assuming the existence of a discretionary power in the High Court and all that we consider necessary is to see whether the discretion was properly exercised."
6.3 Mr. Lakhani has also relied on the judgement of the Apex Court rendered in case of Zahira Habibulla H. Sheikh and Another vs. State of Gujarat and Others, reported in AIR 2004 SC 3114, wherein in paragraphs 51, 52, 54 and 56 it is held as under :
"51. The legislative intent in enacting Section 391 appears to be the empowerment of the appellate court to see that justice is done between the prosecutor and Page 8 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019 R/CR.A/249/2019 IA JUDGMENT the persons prosecuted and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391.
52. There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the Section are only to be invoked when formal proof for the prosecution is necessary. If the appellate Court thinks that it is necessary in the interest of justice to take additional evidence it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of the discretion of the appellate Court. As re-iterated supra the ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the public prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the Court in the discharge of its judicial functions.
54. Need for circumspection was dealt with by this Court in Mohanlal Shamji Soni's case (supra) and Ram Chander v. State of Haryana (1981 (3) SCC 191) which dealt with the corresponding Section 540 of Code of Criminal Procedure, 1898 (in short the 'Old Code') and also in Jamatraj's case (supra). While dealing with Section 311 this Court in Rajendra Prasad v. Narcotic Cell thr. Its officer in Charge, Delhi (1999 (6) SCC 110) held as follows:
"It is a common experience in criminal courts Page 9 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019 R/CR.A/249/2019 IA JUDGMENT that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the court could not "fill the lacuna in the prosecution case". A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage "to err is human" is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better".Page 10 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019
R/CR.A/249/2019 IA JUDGMENT
56. In the ultimate analysis whether it is a case covered by Section 386 or Section 391 of the Code the underlying object which the Court must keep in view is the very reasons for which the Courts exist i.e. to find out the truth and dispense justice impartially and ensure also that the very process of Courts are not employed or utilized in a manner which give room to unfairness or lend themselves to be used as instruments of oppression and injustice."
6.4 Mr. Lakhani has also relied on the judgement of the Apex Court in case of Brig. Sukhjeet Singh (Retd.) MVC vs. The State of Uttar Pradesh and Others, reported in 2019 (2) Scale, wherein in paragraph 20 it is held as under :
"20. The second observation of the High Court is that the application to take additional evidence at the appellate stage is filed by appellant for delaying the decision of the appeal to eternity, we fail to see that when prosecution took twelve years time in leading evidence before the trial court and the judgment by trial court was delivered on 07.10.2013, the appeal was filed on 08.10.2013, how can appellant be castigated with the allegation that he intended to delay the appeal to eternity. The observation was unduly misplaced and incorrect. When Statute grants right to appeal to an accused, he has right to take all steps and take benefit of all powers of the Appellate Court in the ends of the justice. In a criminal case Appellate Court has to consider as to whether conviction of the accused is Page 11 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019 R/CR.A/249/2019 IA JUDGMENT sustainable or the appellant has made out a case for acquittal. The endeavour of all Courts has to reach to truth and justice. The case of the complainant also has been that it is only after execution of the Trust Deed that talks regarding sale of the agricultural land was initiated. Trust Deed and the Resolution, which are foundation and basis for the start of the process of the sale of the land were documents, which ought to have been permitted to be proved to arrive at any conclusion to find out the criminal intent, if any, on the part of the appellant."
7. While opposing this application, Mr. Mitesh Amin, the learned Public Prosecutor appearing on behalf of the respondent - State submitted that the applicant had ample opportunities to produce his evidence of alibi, however, he failed to lead any evidence before the trial court. The learned PP submitted that at the time of final hearing of the appeal, the application to lead additional evidence may be considered by the court for production of additional evidence. 7.1 Mr. Amin submitted that there is no reasonable explanation offered as to why appellant was not in a position to lead his evidence before the trial court. It is submitted that the object of section 391 is not to give a chance of re-trial to the accused. If such application is allowed, then everyday the Page 12 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019 R/CR.A/249/2019 IA JUDGMENT Court would be flooded with such type of applications. It is submitted that such power should be exercised sparingly and Section 391 of the Cr.P.C. is an exception to the general rule. In support of his submissions, the learned PP has relied on the judgement of the Apex court in case of Ajay Kumar Garg vs. Gaurav and Another, reported in (2017) 11 SCC 469, wherein, in paragraphs 4 and 5 it is held as under :
"4. Section 391 of the Code, insofar as relevant for the purpose of this appeal reads as follows:
"391. Appellate Court may take further evidence or direct it to be taken-
(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."
A bare reading of the provision makes it clear that the Section invests the appellate Court with the power to record additional evidence, provided it is satisfied, for the reasons to be recorded, that additional evidence in the matter is necessary. Since Section 391 of the Code is an exception to the general rule that an appeal should be decided on the evidence which was before Page 13 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019 R/CR.A/249/2019 IA JUDGMENT the Trial Court, power under the Section has to be exercised with caution and circumspection so as to meet the ends of justice and not as a matter of course.
5. In Rambhau and Anr. v. State of Maharashtra :
2001CriLJ2343 , this Court has held that the object of Section 391 is not to fill in lacuna, but to subserve the ends of justice. Admission of additional evidence should not operate in a manner prejudicial to the prosecution or the defence. Though wide discretion is conferred on the Court, the same has to be exercised judicially and the legislature had put the safety valve by requiring recording of reasons. Thus, recording of reasons is a condition precedent for exercise of power under Section 391 of the Code and an order bereft of reasons would tantamount to non-application of mind, rendering the exercise of power under the Section, bad in law."
7.2 Mr. Amin, the learned PP has also relied on the judgement of the Apex Court rendered in case of Rajvinder Singh vs. State of Haryana, reported in (2016) 14 SCC 671, wherein, it is held that :
"It was certainly possible to examine forensic expert at trial stage itself and the High Court was right in rejecting the prayer to lead additional evidence at appellate stage."Page 14 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019
R/CR.A/249/2019 IA JUDGMENT 7.3 Relying on the above referred judgement, the learned PP submitted that the said authority is clearly applicable to the facts of the present case and the present application is required to be rejected.
7.4 Lastly, the learned PP submitted by that this application cannot be decided without considering the evidence in detail and therefore, it is required to be decided at the time of final hearing of the appeal.
7.5 The learned PP has also relied on the judgement of the co-ordinate Bench of this Court rendered in case of Ravindrabhai @ John Lakhubhai Vaghela vs. State of Gujarat, reported in 2017 (0) AIJEL-HC 238289, wherein in paragraph 5, 10, 11, 12 and 13 it is held as under :
"5. To oppose the stand taken by the learned advocate for the applicant, Mr.Mitesh Amin, learned Public Prosecutor, has vehemently contended that this plea of alibi was very much available with the applicant at the relevant point of time during the course of trial which could have been availed of. While referring to the statutory provision contained under Section 391 of the Cr.P.C., Mr.Mitesh Amin has contended that before resorting to this statutory provision as a part of condition precedent, one has to first make out a necessity of adducing evidence and necessity is the forefront issue. Learned Public Prosecutor has pointed out that from the beginning right from the day of seeking anticipatory bail, the applicant was conscious about the fact what was to be to be brought on record to justify his absence from the scene of offence. Still, this plea of alibi appears to have not been conveniently setforth Page 15 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019 R/CR.A/249/2019 IA JUDGMENT wholeheartedly during the course of trial. Learned Public Prosecutor has pointed out that two documentary evidences have been produced by way of Exh.288 and Exh.289 which are reflecting on paperbook compilation at Page Nos.1345 and 1346, respectively which is the register of Vishal Travels and this piece of evidence is primary evidence itself and same has been dealt with and findings have also been arrived at which are very much reflecting from the order and, therefore, to permit at this stage to raise a plea of alibi, would frustrate the very fullfledged adjudication of the trial which is otherwise just and proper.
5.1 Mr.Mitesh Amin, learned Public Prosecutor has pointed out that the incident in question has occurred on 13.6.2010 and, therefore, halfhearted plea was taken up during the course of trial so as to see that if ultimately he is saved from alibi, he can test this plea by referring to Section 391 of the Cr.P.C. by way of present application and, therefore, requested now to allow the applicant to produce few documents mentioned in the application along with the affidavit of person, the applicant intends to put this material as a disguise to retrial of the case and, therefore, such a design on the part of the applicant may not be allowed to be encouraged.
5.2 Mr.Mitesh Amin, learned Public Prosecutor, has vehemently contended that even when the further statement was recorded, the applicant has not explained the circumstance in detail nor has produced any material, though from day one the applicant was mindful of this fact nor has examined any person from Vishal Travels nor has even chosen to examine Ashokbhai, who has now come forward to support by way of an affidavit. Learned Public Prosecutor has pointed out that by virtue of the statutory provisions contained under Sections 11 and Section 106 of the Evidence Act, a duty is cast upon the accused to establish his defence and such burden ought to have been discharged by the applicant - accused by setting up his defence. Learned Public Prosecutor has pointed out that Section 391 of the Cr.P.C., no doubt, is permitting to submit the additional evidence, but party who is inclined to avail such benefit, has to make out a case and he cannot selectively produce some part of the documents, discharge partially the burden Page 16 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019 R/CR.A/249/2019 IA JUDGMENT and then, wait for a convenient time so as to resort to remand and retrial of the case and, therefore, such a design may not be allowed to be operated and, therefore, application deserves to be dismissed.
10. Despite that fact, a request is pressed into service when appeal proceedings have not been opened up by the Court. In addition thereto, during the course of dealing with the submission, we have come across a decision of the Apex Court in the case of Union of India v. Ibrahim Uddin & Anr., reported in (2012) 8 SCC 148, in which, in an almost similar situation, the Court has observed that even if the application for additional evidence is filed during the pendency of appeal, the same has to be dealt with and heard at time of final hearing of an appeal and before taking up of an appeal, such kind of applications are normally not to be entertained. Following observations contained in Para.52, 53 and 85.7 of the said decision are not possible to be ignored, hence reproduced hereinafter :
"52. Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete nonapplication of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored.
53. In the instant case, the application under Order XLI Rule 27 CPC was filed on 6.4.1998 and it was allowed on 28.4.1999 though the first appeal was heard and disposed of on 15.10.1999. In view of law referred to hereinabove, the order dated 28.4.1999 is just to be ignored. 85.7 The first appellate court committed a grave error in Page 17 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019 R/CR.A/249/2019 IA JUDGMENT deciding the application under Order XLI Rule 27 CPC much prior to the hearing of the appeal. Thus, the order allowing the said application is liable to be ignored as the same had been passed in gross violation of the statutory requirement."
11. Though the aforesaid decision is related to civil proceedings, but as held by the Apex Court the analogy on the issue of leading additional evidence is also similar to that of Order 41 Rule 27 of the CPC and, therefore, when such is the situation prevailing on record, we deem it appropriate not to accept the application.
12. Yet another decision delivered by the Apex Court in the case of Rambhau & Anr. v. State of Maharashtra, reported in AIR 2001 SC 2120, is taken into consideration while arriving at an opinion not to accept the application at this stage of the proceedings. Relevant observations of the said decision are in Para.4 which is quoted, thus;
"4. Incidentally, Section 391 forms an exception to the general rule that an Appeal must be decided on the evidence which was before the Trial Court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up the lacuna but to sub serve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41, Rule 27 of the C.P.Code."
13. In the aforesaid premise, therefore, we are of the considered opinion that before opening of an appeal for final hearing, at this stage to opine anything on the issue of additional evidence would be a premature exercise at our end and since at this stage, we are of the considered view that though the application is pressed into service in view of aforesaid proposition of law, we are not in a position to accept the same. We refrain ourselves from dealing with the contentions raised by the respective sides in detail and, therefore, we deem it appropriate not to examine the merit of the submissions, leaving it open to the learned advocate for the applicant to submit an appropriate application at an Page 18 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019 R/CR.A/249/2019 IA JUDGMENT appropriate stage of the main proceedings of the appeal. Hence, we are not inclined to entertain the application at this stage of the proceedings. Accordingly, the same is hereby dismissed. Rule is discharged."
8 We find substance in the submissions made by Mr. Amin, the learned PP that the application on hand cannot be decided at this juncture without entering into the merits and de-merits of the appeal and we also endorse the view taken by the co-ordinate Bench in case of Ravindrabhai @ John Lakhubhai Vaghela (Supra) that before opening of an appeal for final hearing, the application for additional evidence would be a pre-mature exercise and it would unnecessarily prejudice the rights of the parties. The intention of the provision is to empower the appellate court to see that justice is done between the prosecutes and prosecuted. If the appellate court at the time of final hearing of the appeal finds that certain evidence is necessary for a just decision, it will take appropriate action.
8.1 In the aforesaid premise, therefore, we are of the considered opinion that before opening of the Criminal Appeal preferred by the convict for final hearing, at this stage to opine anything on the issue of additional evidence would be a premature exercise at our end. In such circumstances, we Page 19 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019 R/CR.A/249/2019 IA JUDGMENT refrain ourselves from dealing with the contentions raised by the respective sides in details. We leave it open to the learned counsel for the applicant convict to submit an appropriate application at appropriate stage i.e. at the time when the Criminal Appeal is ripe for final hearing.
9. With the above liberty, we dispose of this application. Rule is discharged.
Sd/-
(J. B. PARDIWALA, J) Sd/-
(A. C. RAO, J) Dolly/Rafik Page 20 of 20 Downloaded on : Mon Jun 24 21:59:10 IST 2019