JUDGMENT :

1. Heard finally with the consent of the learned counsel for the respective parties.

2. This criminal revision application is filed by the son of the deceased challenging order dated 05.05.2021 whereby the learned Sessions Judge, Thane, dismissed the application under Section 173(8) of the Cr.P.C. filed by the prosecution in Sessions Case No.281 of 2013.

3. The brief facts necessary to decide this application are as under.

The deceased Sunil kumar Lohariya, the proprietor of M/s. S.K. Builders was a whistle blower in the FSI scam and had lodged several complaints and initiated proceedings against the builders and other authorities, exposing illegalities and violation of FSI Rules in over 600 building projects. On 16.02.2013 he was gunned down by two assailants outside his Vashi office. The FIR was lodged and the crime was initially registered at Vashi Police Station. Subsequently, the investigation was transferred to the Crime Branch. In the course of the investigation, the assailants, some builders and others were arrested. The crime was investigated and on 13.10.2013 chargesheet came to be filed against the Respondent nos.2 to 14 (hereinafter referred to as the accused) for offences under Sections 302, 201, 120-B of the Indian Penal Code and Section 3(25), 3(27) and 4(25) of the Arms Act, 1959.

4. The case was committed to the Sessions Court and the charge was framed on 30.10.2017. Accordingly, the trial commenced and the prosecution examined total 63 witnesses. While the trial was in progress, the prosecution filed an application under Section 173(8) of the Cr.P.C. seeking leave to place on record additional evidence, which was allegedly available in the office of the deceased. The details of the additional evidence sought to be produced are given at Serial Nos.(i) to (xiii) of paragraph No.7 of the application.

5. The application was opposed by the accused on the ground of delay and want of sufficient grounds. The accused also raised a plea of prejudice. Upon hearing the respective parties the learned Judge dismissed the application mainly on the ground that the additional evidence, which is sought to be produced was in custody of the applicant, son of the deceased and that no reasons have been assigned for not producing the said evidence for over eight years. Learned Judge also observed that the prosecution has already examined 63 witnesses out of 70 witnesses proposed to be examined by the prosecution. It is held that the accused have already disclosed their defence and great prejudice will be caused to the accused if the prosecution is permitted to produce additional evidence at this belated stage. Learned Judge observed that despite the affidavit filed before this Court, that the prosecution would be examining 70 witnesses, the prosecution has filed applications for summoning additional witnesses. It is further observed that some of the accused are in custody since last eight years, despite which the prosecution has been delaying the trial and the application under Section 173(8) is also a mode of delaying tactics.

6. Mr. Lambhate, learned Counsel for the applicant submits that the documents referred to in the said application were already handed over to the Investigating Officer in the year 2013. In the month of November 2019, while preparing his deposition, the applicant realized that the video and audio clips were not part of the chargesheet. He brought this fact to the notice of the Investigating Officer in his supplementary statement dated 16.11.2019, as well as in the letter dated 22.11.2019. Learned Counsel for the applicant therefore contends that the finding of the learned Judge that the additional evidence is still in the custody of the applicant is factually incorrect. Learned Counsel for the applicant further submits that additional evidence will not necessitate recall of the witnesses, who are already examined and will not delay the trial. He has relied upon the decision of the Apex Court in Vinay Tyag