Additional Evidence at Appellate Stage in Criminal Appeals - India Law

Section 391 of the CrPC (Criminal Procedure Code), dilutes the Section 300 of the Code of Criminal Procedure, 1973, and the message given by judicial interpretation is loud and clear, i.e. Additional Evidence, whether Oral or Documentary or in any other form can be taken.

Section 391 specifies that an Appellate Court may take further evidence or direct it to be taken. In dealing with any appeal 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.

In the case of  Mohd. Salauddin vs State & Anr., the Hon’ble Delhi High Court dealt with the issue of taking additional evidence at the Appellate stage. The Appellant in support of his contention, placed reliance on judgment in case of Rambhau and Another vs. State of Maharashtra [(2001) 4 SCC 759] in which it was observed that a very wide discretion is available in the matter of obtaining additional evidence in terms of Section 391 of Cr.P.C., but this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused.

The Hon’ble Court observed that:

Section 386 Cr.P.C. envisages the normal and ordinary manner and method of disposal of an appeal, but it cannot be said to exhaustively enumerate the modes by which alone the Court can deal with an appeal. Section 391 of the Code is an exception to the ordinary rule and if the appellate Court considers additional evidence to be necessary, the provisions in Section 386 and 391 of the Code have to be harmoniously considered to enable the appeal to be considered and disposed of also in the light of the additional evidence as well. For this purpose it is open to the appellate Court to call for further evidence before the appeal is disposed of. The appellate Court can direct the taking up of further evidence in support of the prosecution.

The primary object of Section 391 Cr.P.C. is the prevention of guilty man's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 Cr.P.C. is desirable. Section 391Cr.P.C. has been enacted for the empowerment of the appellate court to see that justice is done between the prosecutor and 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 Cr.P.C.

The Hon’ble Court also referred to the Hon'ble Apex Court in Zahira Habibulla H. Sheikh and Anr. Vs. State of Gujarat and Ors. AIR 2004 SC 346 while dealing with Section 391 Cr.P.C., held that:


"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."


In the judgment in case of Ram Briksh Singh and Others vs. Ambika Yadav and Another [(2004) 7 SCC 665], it was observed that the revisional court does not function as a court of appeal and, therefore, cannot re-appreciate the evidence. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. The jurisdiction can be invoked to correct the wrong appreciation of evidence. Though the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice. The High Court is not required to interfere in the concurrent finding of facts.


In the case of United Steels vs. Ponneri Steels Industries, the Hon’ble Madras High Court has held that If a new evidence which would have a serious bearing in a case surfaces after the trial Court judgment, that by itself is a sufficient ground for the Appellate Court to take additional evidence.


Bombay High Court in the case of Subhash Chunnilal Gandecha vs Mehandibhai has held that the Appellate Court can exercise power to take additional evidence or direct it to be taken provided that it records its reasons for the same. It is only then the Appellate Court could either record such further evidence or direct it to be recorded by the Sub-ordinate Court as mentioned in Section 391 (4). It is the discretion of the Appellate Court to receive such additional evidence if it is necessary, but nobody can be allowed to claim as a matter of right that such evidence must be taken or accepted, as, it may allow either of the parties to fill up the lacunas or gap in evidence recorded by the trial Court.


The Delhi High Court in the case of Raj Kumar vs State has held that the power of the appellate court, under Section 391 Cr.P.C., is wide and appellate court can take additional evidence when it considers it necessary, for reasons to be recorded. The underline principle is that justice should be done.


In the case of Jose Vs. State of Kerala, decided by the Hon’ble High Court Of Kerala, the issue of the additional evidence in Appeal has been dealt with by referring to the case of Rajeswar Prasad Misra v. The State of West Bengal and Another (AIR 1965 SC 1887), in which  the Hon’ble Supreme Court held that:

“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 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.”


In the above case Hon’ble DB also dissented with the decision of the Rajasthan High Court in Jugal Kishore v. Roshan Lal (1999 CriLJ 2296), and held that 'Evidence' means documentary and oral evidence. In a given case, sometimes, production of a document alone would be sufficient to prove a particular fact, but in some other cases to prove the documentary evidence it may be necessary to adduce oral evidence. It cannot be held that Section 391 of Cr.P.C. applies only in the case of oral evidence and it cannot be applied in the case of documentary evidence. Sub-section (4) of Section 391 of Cr.P.C. itself would give a clear indication that documentary evidence would also be taken in by Section 391 of Cr.P.C. Sub-section (4) of Section 391 of Cr.P.C. provides that the taking of evidence under the Section shall be subject to the provisions of Chapter XXIII, as if it were an enquiry. Sections 272 to 299 of Cr.P.C. are included in Chapter XXIII Cr.P.C. Section 293 of Cr.P.C. provides for using as evidence any document purporting to be a report under the hand of a Government Scientific Expert. Oral examination of the expert is in the discretion of the Court. Section 294 of Cr.P.C. provides for the proof of certain documents and in what cases no formal proof is required. A reading of Sub-section (4) of Section 391 of Cr.P.C. along with Sections 293 and 294 of Cr.P.C. and the definition of evidence in Section 3 of the Indian Evidence Act would lead to the irresistible conclusion that Section 391 of Cr.P.C. deals with not only oral evidence, but documentary evidence as well.

In view of the above discussion, it can be said that Section 391 of the Cr.P.C., that taking of additional evidence in the interest of justice, by an Appellate court is a strong possibility, and one can not say with certainty that the Appellate courts

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