The need and desirability to receive evidence is distinct from its efficacy, reliability, and acceptability. The production of such document at a later stage does not appear to be necessary if it does not defeat the cause of justice.

1. Heard Mr. Abhishek Gupta, Advocate, holding brief of Mr. Dileep Kumar, learned counsel for the appellants.

2. This application dated 5th May, 2015 under Section 391, Cr.P.C. was moved when the Second Bail Application No. 253114 of 2014 was pending before this Court. The application was filed praying for admitting as additional evidence, the ballistic report dated 4th November, 2004 in Case Crime No. 200 of 2004 giving rise to Sessions Trial No. 217 of 2004, Police Station Kotwali District Basti. The ballistic report appears to have been sought for by the investigation after recovery of two fire arms one of which was a factory made revolver stated to be that of one of the accused Inayatullah and the other a country made weapon. The present application has been filed by Mr. Wasiullah one of the co-accused and in the affidavit filed in support of this application, it has been alleged that when this criminal appeal was listed before the previous Bench on 11th March, 2015, an oral direction had been issued to file additional evidence. We have perused the order sheet and we do not find any such order recorded in the order sheet or this application.

3. It appears that the learned counsel for the appellant had moved this application along with the allegations of the ballistic report having been sent to the Court of the Chief Judicial Magistrate on 5th November, 2005. This information was based on the photostat copy of the question answer dated 9th July, 2014 that had been moved before the Chief Judicial Magistrate. The question answer is of the same date and is Annexure-4 to the affidavit. There is no indication that in spite of having received this information, an application for additional evidence before this court was moved on 5th May, 2015 almost after ten years of obtaining the said information.

4. The affidavit further discloses that on 1st of May, 2015, the deponent of the affidavit Dr. Tabarak Husain who is the brother of appellant Wasiullah applied for a certified copy of the ballistic report dated 4th November, 2014 from the record of the criminal appeal pending before this Court, but the same was not provided for. It is thus, evident from the facts narrated in the affidavit that the ballistic report was sought to be obtained from this court in the month of May, 2015 after the said oral observations are stated to have been made on 11th March, 2015.

5. The present application was accordingly filled on 5th May, 2015.

6. There is nothing in the affidavit in support of this application to explain as to why the appellant did not choose to take any steps for securing such document and placing it either before the Trial Court as an exhibit in its defence or even before this court after almost four years of the pendency of the appeal. The defence had ample opportunity before the trial court to avail any benefit in view of the provisions of Section 292, Cr.P.C. read with Section 74 of the Indian Evidence Act.

7. Learned counsel for the appellant vehemently urged that the applicant-appellant had no knowledge about the said document.

8. We are unable to accept this oral contention in the absence of such deposition on oath or otherwise, keeping in view the contents of the affidavit. Secondly, there is no explanation as to what had prevented the applicant-appellant in spite of having knowledge and the exercise of due diligence to bring on record such a document. Thirdly, the document is a photostat copy which is not admissible in evidence. Fourthly, the learned A.G.A. has categorically stated during the course of argument after having filed a counter-affidavit that the prosecution did not rely on this document, and at this stage as well the prosecution does not propose to rely on the said document as ample direct evidence is available.

9. Apart from these facts, what we find is that the direction of the Court accepting the request of the appellant to file a certified copy of the ballistic report vide order dated 11.5.2016,