The main legal point established in the judgment is that the power under Section 391 of the Code of Criminal Procedure should be exercised with caution and only when essential to prevent a miscarriage of justice, and the reception of additional evidence for the prosecution should not be prejudicial to the defense of the accused.

G.S. Sistani, J (Oral)--

Crl. M.A. 132/2015

1. This application under Section 391 read with Section 482 Code of Criminal Procedure has been filed by the appellant praying for issuance of directions to the Investigating Officer of the case to produce the bank account statement of PW-4 (Aribam Kinghem Sharma) in respect of the account maintained with Standard Chartered Bank.

2. The facts relevant for the disposal of this application are that the appellant herein alongwith Suraj @ Sonu was sentenced to life imprisonment for the offence punishable under Section 302 of the Indian Penal Code (for short IPC) and rigorous imprisonment for 2 years for the offence punishable under Section 201 IPC. Appellant has preferred the present appeal against his conviction.

3. By the present application, Appellant has pleaded that prosecution has falsely shown recovery of Rs. 33,000/- as the amount that was allegedly taken out by the appellant by using an ATM card of the deceased.

4. Appellant has further stated that PW-4, Aribam Kinghem Sharma had given a cheque drawn on Standard Chartered Bank in the name of ‘Self’ for Rs. 50,000/- on 07.02.2011 and the same was withdrawn by the appellant from Vasant Vihar Branch and out of the same Rs. 49,000/- were deposited by him in his account with Canara Bank later another ‘Self’ cheque for Rs. 50,000/- was given to the applicant by PW-4, Aribam Kinghem Sharma on 09.02.2011 and the same was withdrawn by him from the account of PW-4 with Standard Chartered Bank and it was out of this amount, that sum of Rs. 33,000/- was deposited by the applicant in his account with Canara Bank. In this background, he has prayed for issuance of directions to the Investigating Officer of the case to produce the bank account statement of PW-4 (Aribam Kinghem Sharma) in respect of the account maintained with Standard Chartered Bank.

5. To fortify his submission, learned counsel for the Appellant has placed reliance on the judgment passed in Crl. Appeal 1091/2005 titled as Mohd. Hussain @ Julfikar Ali Vs The State (Govt of NCT) of Delhi, Crl.A. 384/2000 titled Pankaj Chaudhary Vs State (Govt of NCT of Delhi) and Dilip Premnarayan Tiwari Vs State of Maharashtra, 2010 (1) SCC.

6. Learned counsel for the State has opposed this application mainly on the ground that appellant had sufficient opportunity to produce the witnesses as well as material in his defense but he failed to do so.

7. We have heard learned counsel for the both parties.

8. Briefly stated, learned Trial Court has held the appellant herein along with Suraj @ Sonu guilty for causing death of deceased Bansidhar Patra. It was opined by the learned Trial Court that the deceased who was working as a labour contractor, consumed alcohol which was laced with ‘Alpraquil’ as a result of which the deceased lost his consciousness and thereafter, he was smothered to death. Further, to shield the identity of the deceased, the accused persons removed all his clothes. During the investigation, mobile phone and the ATM card of the deceased was found in the possession of the appellant. It was revealed from the investigation that a phone call was made by the appellant to the brother of the deceased on the night of the incident and there was a withdrawal of Rs 33,000/- from the ATM of the deceased which was deposited in the joint account of the appellant with his sister at Canara Bank.

9. Before dealing with the arguments of learned counsel for the Appellant, it would be useful to reproduce Section 391 (2) of the Code of Criminal Procedure.

“A) Section 391(2): This section contemplates a further inquiry by taking additional evidence when the conviction by the lower court has been based upon some evidence which might legally support it, but which in the opinion of the appellate court is not quite satisfactory.

B) Section 391(3) : It is an exception to the general rule and the power conferred by this provision must be exercised with great care, so that the reception of additional evide