The main legal point established in the judgment is the court's discretion to allow the taking of additional evidence in an appeal under Section 391 Cr.P.C., particularly in cases where the appellants have sustained injuries and a related criminal case is involved.

ORDER

N.K Mody, J.

1. Being aggrieved by the judgment dated 25.11.2005 passed by 1st Addl. Sessions Judge, Dhar in S.T. No. 252/2004, whereby appellants were convicted for the offence punishable under Section 452 IPC for a period of one year RI with fine of Rs. 1,000/-, under Section 307/ 34 IPC for a period of three years with fine of Rs. 500/- and under Section 323/ 34 for a period of six months RI each, present appeal has been filed.

2. In short case of the prosecution was that on 15.5.2004 at about 8 PM there was a quarrel between the appellants and the complainant party and they assaulted each other with deadly weapons. Upon this a complaint was registered and after investigation charge sheet was filed against the appellants and after framing of charges and also recording of the evidence appellants were convicted as stated above, against which the present appeal has been filed.

3. Learned counsel for the appellants argued at length and submits that appellants have convicted illegally while appellants have not committed any offence. Learned counsel further submits that the learned Court below committed error in not properly appreciating the evidence, which resulted incorrect judgment and is liable to be set aside in this appeal. It is submitted that the learned Court below committed error in not considering that material omissions and contradictions appearing in the testimony of the prosecution witnesses. It is submitted that appeal be allowed and impugned judgment passed by the learned Court below be set aside.

4. In alternate learned counsel for appellants submits that appellants were in jail w.e.f. 7.8.2004 to 5.9.2004 during, trial and after conviction the jail sentence was suspended by the learned trial Court, which was confirmed by this Court vide order dated 12.12.2005. It is submitted that I.A. No. 5208/ 2009 is filed by the appellants under Section 391 Cr. P.C., wherein it is alleged that in the said incident appellants also sustained injuries. It is submitted that upon the complaint of the appellants case was registered at Crime No. 219/04 against the complainant party of this case. It is submitted that injury report was also submitted before the learned Court below. Various documents, which are Ex. D/1 to D/10 were exhibited but the injury report could not be exhibited. Learned counsel submits that vide order dated 29.8.93 passed by the S.D.M., Badnawar in Cri. Case No. 288/B-121/91-92 appellant No. 1 Shobharam was appointed as Pujari to perform the prayer in the temple of Ramdev. It is submitted that since the injury report has not been taken into consideration, which was already on record, therefore, the application be allowed and the appellants be permitted to adduce the evidence in defence and the case be remanded.

5. Learned counsel for the State submits that after due appreciation of evidence learned Court below has found the appellants guilty for the aforesaid offence. Hence no interference is called for in the findings recorded by the learned trial Court. So far as IA is concerned, learned counsel submits that since the documents relating to the injuries sustained by the appellants were in existence at the relevant time and were not exhibited by the appellants, therefore at this stage appellants could not be permitted to fill up the lacuna. It is submitted that appeal be dismissed.

6. Section 391 Cr.P.C. reads as under: -

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 the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.

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