The appellate court may allow additional evidence under Section 391 CrPC to prevent miscarriage of justice, ensuring all relevant evidence is considered for a fair trial.

Hon’ble Manoj Kum ar Tiw ari, J.

1. This Criminal Miscellaneous Application under Section 482 CrPC is filed, challenging order dated 21.02.2015, passed by learned Ist Additional Sessions Judge, Udham Singh Nagar, in Criminal Appeal No. 30 of 2013. By said judgment, application under Section 391 CrPC, filed by complainant was allowed.

2. It transpires that respondent No. 2 lodged an FIR against applicants in Police Station, SIDCUL, Pant Nagar on 30.07.2006 and upon investigation, chargesheet was filed against applicants under Sections 323, 325, 504, 506 IPC. Learned trial court convicted the applicants for offence punishable under Section 323 IPC and sentenced them to six months’ imprisonment with fine of Rs. 500/- each and, acquitted them of the charge of offences punishable under Sections 325, 504, 506 IPC vide judgment and order dated 23.01.2013.

3. Dissatisfied with the punishment given to the accused persons, respondent No. 2 filed appeal against trial court’s judgment, which is registered as Criminal Appeal No. 30 of 2013 and is pending. In the said appeal, respondent No. 2 moved an application under Section 391 CrPC, for adducing additional evidence which was allowed vide order dated 21.02.2015. Applicants are aggrieved by said order.

4. Heard learned counsel for the parties and perused the record.

5. Applicants were acquitted of the charge under Section 325 CrPC for the reason that, neither X-ray plate was produced to prove the nature and gravity of injuries sustained by respondent No. 2 nor the radiologist was examined, as witness for bringing home the charge of Section 325 I.P.C.

6. In the aforesaid appeal, complainant (respondent No. 2), moved an application under Section 391 CrPC stating that, X-ray plate and report dated 31.07.2006 are available in the record maintained by concerned government hospital, therefore, Principal Medical Superintendent of the concerned hospital may be directed to produce X-ray plate/X-ray report before the Court and the radiologist may also be summoned and examined by the Court.

7. The appellate Court allowed the application for adducing additional evidence filed by respondent No. 2, vide order dated 21.02.2015. Learned appellate Court observed that original medical report and supplementary medical report of the injured, Mr. P.P. Arora, are part of record of the trial Court, however, prosecution failed to produce the X-ray report dated 31.07.2006 in respect of injured, P.P. Arora. Learned appellate Court has observed that if examination of the radiologist was necessary to bring home the charge under Section 325 IPC, then it was the duty of the trial Court to summon and examine the radiologist. The appellate Court further observed that the appeal has not been filed by the prosecution, but by the injured himself.

8. Section 391 CrPC enables appellate court to take further evidence or direct it to be taken. For ready reference, Section 391 CrPC is extracted below :-

“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 injury.”

9. Learned counsel for applicants submitted that the impugned order, is unsustainable as the prosecution had sufficient opportunity to bring X-ray report/plate on record and also to summon the radiologist as witness before tria