IMPORTANT POINT
Additional evidence at appeal stage cannot be permitted to fill up lacuna.

JUDGMENT

R. K, Dash, J. - The short but interesting question that arises for consideration in the present petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for short, 'the Code') is whether the learned Additional Sessions Judge, Khurda, was justified in permitting the appellants, opposite parties herein, to adduce additional evidence in the appeal preferred by them against their conviction and sentence recorded by the learned Judicial Magistrate, First Class, Khurda in I.C. C. No. 186 of 1990.

2. For better appreciation a few facts giving rise to the present revision may be stated thus:

The opposite parties faced trial in the aforesaid complaint case lodged by the present petitioner. Upon trial they were found guilty under Sections 323 and 354. I.P.C. and sentenced to pay a fine of Rs. 200/- for each offence in default to undergo rigorous imprisonment for one month each. Against that judgment and order of conviction the opposite parties preferred Criminal Appeal No. 153/107/141 of 1995. While the appeal was pending adjudication; the opposite parties filed a petition to call for certain documents from the Regional Office of Food Corporation of India. Vani Vihar. Bhubaneswar to prove that at the relevant time when the occurrence was alleged to have taken place opposite party No.2 was present in his duty at the Regional Office and in order to prove such plea he may be permitted to examine his reliever. It was further stated that as according to the prosecution the alleged occurrence took place in front of the house of one Bisuni Behera, they may be permitted to examine him as defence witness his evidence being necessary for just decision of the case. It was further urged that there was previous hostility between the opposite parties and the petitioner and in order to prove the same they may be permitted to call for the F.I. R. and injury report in G. R. Case No. 884 of 1990. Besides the above they also prayed, to further cross-examine P.Ws. 1 and 2 to elicit certain matters to facilitate the Court to arrive at the truth. The above prayer of the opposite parties was objected to by the petitioner.

3. Learned Additional Sessions Judge upon hearing the parties and relying upon two decisions reported in Tusar Kanti Swain and another v. State of Orissa1 and State of Gujarat v. Mohanlal Jitamajli Porwal and another2. allowed the petition and permitted the opposite parties to lead evidence as prayed for.

4. Assailing the impugned order. Shri L. Mohapatra learned counsel for the petitioner contended that plea of alibi taken by opposite party No.2. an employee of the Regional Office of the Food Corporation of India was an afterthought inasmuch as while cross-examining the witnesses for the prosecution it was not suggested to them that he was not present at the scene of occurrence but was present elsewhere at the relevant time. Moreover, such a plea was not taken when he was examined by the court under section 313 of the Code. As regards permitting the opposite parties to examine one Bisuni Behera 'as a defence witness it was contended that the learned trial court had afforded opportunity to the opposite parties to adduce defence evidence but since they declined to adduce any such evidence the court heard arguments advanced by the parties and pronounced the judgment. In that view of the matter contended Sri Mohapatra, learned appellate court committed gross legality in permitting the opposite parties to adduce further evidence which amounts to reopening the case for trial afresh.

On the other hand. Shri B. Panda learned counsel for opposite parties would contend that the impugned order being based on sound reasonings and on proper exercise of discretion should not be interfered with by invoking inherent power of the Court.

5. Section 391 of the Code provides inter alia that in dealing with an appeal under Chapter XXIX the appellate court if thinks additional evidence to be necessary by recording reasons may either ta