Crl.M.P.No.1113 of 2023

Crl.M.P.No.1113 of 2023

in

Crl.A.No.383 of 2020

P.VELMURUGAN,J.

When the main appeal came up before this Court on 06.01.2023, the

learned counsel for the appellant sought permission of this Court to peruse the

records. Therefore, this Court called for records and permitted the counsel for

the appellant to peruse the records and instructed him to argue the matter on the

next hearing.

2. Today (25.01.2023) when the matter came up before this Court,

instead of arguing the appeal, the counsel for the appellant/accused has filed

the present petition and would submit that the Form 91 was not marked before

the trial Court during trial. He would further submit that already approval was

granted by the CMDA and the appellant/accused was nothing to do with the

work to be done by the defacto complainant. Therefore, in order to secure the

ends of justice, the appellant/accused himself wanted to be examined as

defence side witness under Section 315 Cr.P.C. Hence, the appellant/accused

may be permitted to examine as defence witness and his evidence may be

treated as additional evidence. He also referred Section 391 Cr.P.C.

3. Heard the learned counsel for the appellant/accused and perused the

records.

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Crl.M.P.No.1113 of 2023

4. There is no quarrel with the proposition of law that the accused is a

competent witness. Admittedly, if an accused wanted to be examined as

defence side witness, he can invoke Section 315 Cr.P.C. and with the

permission of the Court, he can get into the box and let his evidence. Further, if

any document is inadvertently omitted to be marked before the Court or if any

document was able to secure only subsequent to the trial and which was not

able to produce before the trail Court during trial, one can invoke Section 391

Cr.P.C. to mark the said document as additional evidence at any stage. If the

Court thinks it necessary, the Court can permit to take additional evidence

otherwise it may not, whereas in this case, the cause of action arose in the year

2009 and after investigation, the case was tried in the year 2012 and was

disposed of on 17.09.2020. Subsequently, the appeal also filed before this

Court.

5. A perusal of the proceedings under Section 313 Cr.P.C. shows that

several opportunities were given to the appellant/accused and he also all along

participated in the trial and after completion of evidence, he was questioned

under Section 313 Cr.P.C. on 22.01.2019. At that time, he has stated that he has

witness. But he did not produce any witness. Subsequently, the counsel who

appeared for the appellant/accused before the trial Court, made endorsement

that there was no further evidence from the defence and based on the

endorsement made by the counsel who appeared on 01.02.2019, the trial was

closed. Even the counsel for the appellant/accused also filed a written

arguments on behalf of the appellant/accused and requested the Court to take

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Crl.M.P.No.1113 of 2023

the written submission as part and parcel of his submission and defence.

Therefore, the trial Court proceeded with the arguments of the prosecution and

delivered the Judgment on 17.09.2020. Thereafter, the present appeal was filed

before this Court.

6. As stated above, every opportunity was given to the appellant/accused

before the trial Court and he also all along participated with the trial

proceedings and entered appeared through counsel. But he did not file any

application invoking Section 315 Cr.P.C. before the trial Court. Even in the

present petition filed before this Court invoking Section 315 Cr.P.C., he has

not given any valid reason as to why he had not filed the petition invoking

Section 315 Cr.P.C. before the trial Court.

7. Though the appellate Court has power to take additional evidence in a

suitable case, such power