Section 391 of CrPC encompasses both oral and documentary evidence, as per the legislative intent and related provisions in the CrPC and Indian Evidence Act.

K.T. Sankaran. J.

1. These applications are filed by the appellant under Sections 294, 391 and 482 of the Code of Criminal Procedure to call for and admit the documents marked in a connected case.

2. More than 40 accused persons were allegedly involved in a rape case where the victim was aged 16 and odd years but below 18 years, which is popularly known as Suryanelli case. Excluding those accused who were absconding, the other accused were tried in S.C.No.187 of 1999 on the file of the Additional Sessions Court (Suryanelli Court), Kottayam, and many of them were convicted and sentenced. One of the absconding accused, namely, Dharmarajan was arrested later and the case against him was tried in S.C.No.241 of 2001 and he was convicted and sentenced. The accused persons filed separate appeals before this Court challenging the conviction and sentence. A Division Bench of this Court heard the Criminal Appeals and acquitted all the accused except Dharmarajan. The Division Bench awarded a lesser sentence to Dharmarajan. The State filed appeals before the Supreme Court. The victim also filed appeals before the Supreme Court. The Supreme Court set aside the judgment of this Court and remanded the Criminal Appeals for fresh disposal.

3. In S.C.No.241 of 2001, Exhibits X2 to XI, X12 and XI3 were marked on the side of the defence. In Criminal Appeal No.877 of 2002 filed by Dharmarajan against his conviction and sentence in S.C.No.241 of 2001, a document was marked at his instance as Exhibit C2. The prayer in these applications is to call for the aforesaid Exhibits and to admit the same as part of documents in Criminal Appeal No.604 of 2000 arising out of S.C.No.187 of 1999.

4. The application is very vehemently opposed by the learned Director General of Prosecution. He contended, that Section 391 of Crl.P.C. is not applicable to documentary evidence and the said Section applies only in respect of oral evidence. He relied on the decision of the Rajasthan High Court in Jugal Kishore vs. Roshan Lai: 1999 Crl. L. J. 2296.

5. Section 391 of the Code of Criminal Procedure 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.

(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.

(4) The taking of evidence under this Section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry. "

6. The learned Director General of Prosecution submitted that a reading of sub-sections (2), (3) and (4) of Section 391 of Crl.P.C. would indicate that Section 391 of Crl.P.C. deals with oral evidence and not documentary evidence. He submitted that there is no mention of documentary evidence in Section 391 of Crl.P.C.

7. Section 3 of the Indian Evidence Act defines evidence as follows :

Evidence- "Evidence " means and includes -

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence. "

8. Going by the definition of evidence in Section 3 of the Indian Evidence Act, it takes in oral evidence as well as documentary evidence. Section 391 of Crl.P.C. speaks of only evidence. That is a clear indication that Section 391 of Crl.P.C. takes in oral evidence as well as documentary evidence.

9. In Rajeswar Pra