K. R. VYAS, J. ( 1 ) RULE. Mr. H. P. Raval waives service of rule. Leave to amend. ( 2 ) THIS Misc. Criminal Application has been filed seeking permission to examine the following witnesses: (I) Bhavarlal Megharam Head constable at present working in Jamnagar City A-Division Police Station who had interrogated the accused under Section 174 of the Cr. P. C. at CR No. 3 of 1982 of Dhrol Police Station in connection with the accidental death of deceased Raliyat-wife of respondent No. 1 herein with a view to proving his report mark 6/3 dated 15-3-1982 sent to the police Station officer at village Dhrol; and (ii) Panch Panla Mada Bharwad etc. for the purpose of proving the Inquest Report Mark 6/10 Panchnama of scene of offence Mark 6/11 and other documents. ( 3 ) IN order to decide this application it is necessary to mention certain facts. Deceased Raliyat aged 22 who was the daughter of Chaku Jiva Satwara PW 3 Exh. 11-the complainant in the present case was married to the respondent No. 1 which took place about seven years before the date of incident. The respondent No. 2 is the father of the respondent No. 1. Out of the said wedlock there were three daughters and they were stayng in a Wadi situated in the sim of village Dhrol near a place known as Goradiya Hanuman. It appears that there were some quarrels between the husband and wife wherein the deceased was beaten up however due to the intervention of certain persons the quarrels ended in reconciliation. Before about eight days from the incident the deceased had an occasion to go to her parents where she complained before them about ill-treatment by her husband and in-laws under petty excuses. The incident in question happened in the morning of 15-3-1982. The respondent No. 1 met Chaku Arjan PW. 6 Exh. 14 and informed him that his wife is sick and that she had become unconscious and therefore he had come to village Dhrol to call the Doctor. Then the respondent No. 1 alongwith Chaku Arjan met one Doctor at Kevalia who advised them to go to Government Hospital. Accordingly both of them met Dr. Gordhan Mavjibhai Panara PW. 2 Exh. 10 at about 12. 00 noon. Both of them informed Dr. Then the respondent No. 1 alongwith Chaku Arjan met one Doctor at Kevalia who advised them to go to Government Hospital. Accordingly both of them met Dr. Gordhan Mavjibhai Panara PW. 2 Exh. 10 at about 12. 00 noon. Both of them informed Dr. Panara that a woman had become unconscious and summoned the Doctor to the Wadi for the piurpose of examining her. In reply thereto the Doctor told them that if the woman had become unconscious she may be brought to the hospital. However they requested the Doctor to first examine her and that if necessary she would be letter on brought to the hospital. Thereupon Dr. Panara went to the Wadi by his motorcycle with Chaku Arjan as the pillion rider while the respondent No. 1 came by bicycle. When the Doctor reached the house of the respondent No. 1 in the Wadi he found the deceased lying in a room covered with matresses. The Doctor after removing the matresses upon examination found her dead. The Doctor noticed rope marks on the neck of the deceased and having realised that the death had occurred under suspicious circumstances asked them to bring the dead body to the hospital. According to the Doctor all the family members of the respondents including the respondent No. 2 were present in the house. He further stated that the woman was examined between 12 noon to 1. 00 p. m. The Doctor upon reaching the hospital informed the police on phone that one lady had expired under suspicious circumstances. Exh. 21 is the entry in the Station Diary of Joria Police Station. As per the said entry the Doctor informed the Police Staiton about the death of a woman however no details have been given. Accordingly Head Constable Bhavarlal went to the hospital to enquire about the message where he prepared the Panchnama of the dead body and also prepared the Inquest Report Mark 6/10. Thereafter he made enquiries regarding the cause of death by interrogating the respondent No. 1 and after getting information from the respondent No. 1 which was reduced into writing he forwarded the same to the Police Station Officer Dhrol vide Exh. 6/3. Head Constabnle Bhavarlal then visited the scene of offence i. e. the Wadi of the respondents and drew the Panchnama thereof which is at Mark 6/11. In the meantime at about 22. 00 hrs. 6/3. Head Constabnle Bhavarlal then visited the scene of offence i. e. the Wadi of the respondents and drew the Panchnama thereof which is at Mark 6/11. In the meantime at about 22. 00 hrs. the father of the deceased who had received information about the death went to village Dhorl Police Station and lodged detailed complaint before PSI Charan PW. 9 Exh. 19 who reduced this complaint into writing and registered the offence. Thereafter PSI Charan went to the house of the respondents and recorded the statements of certain witnesses on the next day and arrested both the respondents. The respondent No. 1 expressed his willingness to produce the rope which was said to have been used the commission of the crime. PSI Charan therefore aided by the Panchas drew the preliminary Panchnama and went to the house of the respondents led by respondent No. 1 from where the respondent No. 1 took them to the Wadi portion and took out the Muddamal blood stained rope from below a heap of stalks of wheat which was attached under the Panchnama. The clothes put on by the deceased at the time of incident were also produced before PSI Charan by one Constable Natubhai which was also attached under the Panchnama. Thereafter the Investigating Officer recorded the statements of Dr. Panara and other witnesses. He also forwarded the Muddamal articles to the Forensic Science Laboratory for analysis. After completing the investigation the Investigating Officer submitted a charge-sheet against the respondents before the learned J. M. F. C. Dhrol. who in turn ultimately committed the case to the Court of Sessions. ( 4 ) THE learned Sessions Judge Jamnagar before whom the respondents were tried for the offences under Section 302 r. w. s. 34 or in the alternative under Section 114 of the Indian Penal Code were at the end or the trial ordered to be acquitted by holding that the prosecution has failed to prove the charges levelled against the respondents. The State has preferred the present main appeal against the said judgment and order of acquittal. ( 5 ) MR. S. P. Dave learned Addl. P. P. appearing for the State while narrating the incident and the manner in which investigation was carried out by the Investigating Agency invited our attention to Exh. 6 i. e. the list of documents produced by the prosection before the trial Court. ( 5 ) MR. S. P. Dave learned Addl. P. P. appearing for the State while narrating the incident and the manner in which investigation was carried out by the Investigating Agency invited our attention to Exh. 6 i. e. the list of documents produced by the prosection before the trial Court. There are as many as eighteen documents on which the prosecution wanted to place reliance for proving the charge against the respondents. On behalf of the defence an endorsement was made by the learned Advocate for the respondents that if the document mentioned at Serial No. 1 is exhibited he had no objection meaning thereby that the document at Serial No. 1 which is the map of the scene of offence was not required to be proved by the prosection since the same was admitted by the defence. Since the defence had not admitted the rest of the documents it was necessary for the prosecution to prove them by leading evidence. The said documents inter alia included the Police Yadi issued by PSO Dhrol to Head Constable Bhavarlal the report submitted by Bhavarlal the Police Yadi written to Medical Officer Dhrol dated 15-3-1982 and 16-3-1982 the Yadi written by the Medical Officer Dhrol dated 16-3-1982 pertaining to the sample of blood and nails of the respondents the report of the Medical officer dated 18-3-1982 Mark 6 wherein it was mentioned that the deceased could not have caused injury on the neck by herself the Inquest Panchnama Mark 6/10 the Panchnama of the scene of offence Mark 6/11 and the arrest Panchnama Mark 6/12. ( 6 ) MR. Dave submitted that the aforesaid documents are very important for the purpose of proving the charge against the respondents and though the same has been produced before the Court vide list Exh. 6 the learned A. P. P. who conducted the trial had not proved the said documents by leading evidence. We also feel that the said documents are important and relevant and therefore with a view to placing on record reasonable explanation for not examining the necessary witnesses by the prosecution we granted time to the learned A. P. P. Mr. Dave. Mr. B. K. Bhatt learned A. P. P. who conducted the trial on behalf of the prosecution remained present at the instance of Mr. Dave. Mr. B. K. Bhatt learned A. P. P. who conducted the trial on behalf of the prosecution remained present at the instance of Mr. Dave but we are sorry to state that he was unable to tender proper explanation regarding the non-examination of the necessary witnesses to prove the aforesaid documents. He conveyed through the learned A. P. P. Mr. Trivedi who appeared when Mr. Bhatt appeared before this Court especially that due to lapse of time it was not possible for him to remember as to why the witnesses were not examined. According to him looking to the fact that most of the prosecution witnesses have not supported the prosecution case he might have thought it fit not to pursue the matter further and for that reason he might not have examined the witnesses to prove the aforesaid documents In any case Mr. Bhatt has not filed any affidavit stating the aforesaid facts Considering the manner in which the explanation is submitted by Mr. Bhatt before us we feel that the prosecution was utterly negligent in conducting the trial Even assuming that the prosecution witnesses have not supported the prosecution case but considering the facts of this case more particularly when the said prosecution witnesses are not the eye witnesses and the case rests merely on circumstantial evidence we fail to appreciate as to why the witnesses were not examined to prove the documents in question and to prove the circumstances emerging against the respondents Having realised that the witnesses were not examined to prove the documents in question the learned A P P filed the present application seeking permission to lead additional evidence in the present case a reference to which has already been made above ( 7 ) MR. H. R. Raval learned Advocate appearing on behalf of the respondents strongly challenged the application on various grounds He firstly submitted that even in the present application nothing has been stated and/or no circumstances are mentioned for not producing the relevant witnesses to prove the documents in question and therefore according to him the application itself is not tenable in law As stated above the entre trial has been conducted by the learned A. P. P. in a very careless and cavalier fashion and therefore it would be too much to expect the prosection to give explanation for not examining witnesses in the present application This is particularly in view of the fact that the learned A P P who conducted the trial has himself not taken any care to examine the witnesses and has not tendered proper explanation though he was aware of the fact that he was required to prove the documents in question Obviously no grounds are mentioned in the present application In view of these state of affairs it is the duty of the Court to consider the relevancy of additional evidence and its necessity to do justice in the case Reading Section 391 of the Criminal Procedure Code it is clear that the Appellate Court may take further evidence or direct it to be taken if it finds that some formal difficulty or lacuna may be apparent or the lower Court may have improperly or negligently shut out important evidence or some material evidence which was not available or known may have been subsequently found or necessary evidence may not have been produced through the inefficiency or inadvertency of the persons conducting the case In such cases we think that we are perfectly justified and within our rights to exercise our discretion to take additional evidence which is essential for a just decision of the case ( 8 ) MR. Raval further submitted that the incident is of 1982 and after a lapse of about ten years it will not be proper for this Court to grant the application by allowing the prosecution to lead additional evidence and in suport of his submission he has placed reliance on the decision of the Patna High Court in the case of Siva Balak Rai and Others v. State of Bihar reported in 1986 CRI. L. J. 1727 wherein it was observed that"where in a murder case on perusal of the order-sheets of the trial Court it was manifest that ample opportunity was afforded to the prosecution to examine the police Investigating Officer and the Doctor who held autopsy over the dead body of the victim and although several chances were given to the procsecution for producing the said witnesses it did not avail the same and a period of more than eight years has already rolled on since the occurrence had taken place keeping in view also the fact that during the said period the accused must have remained in great mental agony due to prolonged prosecution held that it would be too hard for the accused if the case was reopened at the appellate stage and the prosecution was allowed an opportunity to give additional evidence. It is true that there is substantial delay in the present case and that the respondents must have suffered mental agony due to the pendency of the acquittal appeal against them but that fact alone will not weigh to the Court in reaching a just decision especially when in the case before the Patna High Court as can be seen from the judgment a finding was recorded that on perusal of the order-sheets of the trial Court it was manifest that ample opportunity was afforded to the prosecution to examine the witnesses and that several chances were given to the prosecution and in spite of that the prosecution had not availed of the same. Considering the said facts the request for additional evidence made by the prosecution was rejected by the Patna High Court while in the case before us as can be seen from the Rojkam it appears that on 7-5-1983 the charge against the respondents was framed and pleas were recorded. Thereafter the case was adjourned to 19 for recording evidence on which date seven witnesses were examined. Thereafter it was again adjourned to 20/05/1983 and on that day also certain witnesses were examined and on the same day after hearing the learned Advocates the Court pronounced the judgment. Thus the entire case was disposed of by judgment within two days. Thereafter the case was adjourned to 19 for recording evidence on which date seven witnesses were examined. Thereafter it was again adjourned to 20/05/1983 and on that day also certain witnesses were examined and on the same day after hearing the learned Advocates the Court pronounced the judgment. Thus the entire case was disposed of by judgment within two days. Therefore this is not a case wherein opportunities were given to the prosecution to examine witnesses as given in the case before the Patna High Court and therefore the facts of that case are not applicable to the present case. The fact that the present case was over within two days would indicate that the case was disposed of in a very hasty manner. Just as the Prosecutor did hot think it proper to examine the witnesses for proving the documents not admitted by the defence the learned trial Judge also did not think it propel to see the relevancy of those documents as he was not called upon to decide the question of examining the witnesses to prove the documents in question. The Supreme Court in the case of State of Gujarat v. Mohanlal Jitamalji Porwal and Anr reported in AIR 1987 SC 132 while rejecting the application for adducing additional evidence on the ground of delay by the High Court has observed that: The mere fact that six years had elapsed for which time-lag the prosecution was in no way responsible was no good ground for refusing to act in order to promote the interests of justice in an age when delays in the court have become a part of life and the order of the day. xxx xxx xxx xxx xxx xxx It was also observed that: Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The Community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the Community deserves equal treatment at the hands of the Court in the discharge of its judicial functions. The Community or the State is not a person non grata whose cause may be treated with disdain. 9 In view of the above the submission of Mr. Raval deserves to be rejected. 10 It was next submitted by Mr. The Community or the State is not a person non grata whose cause may be treated with disdain. 9 In view of the above the submission of Mr. Raval deserves to be rejected. 10 It was next submitted by Mr. Raval that this Court may not permit the prosecution to fill up the lacuna by granting the present application and for this purpose he has placed reliance on the following decisions (i) 1986 CRI. L. J. 1727 (ii) 1971 CRI. L. J. 1332 (iii) AIR 1951 Calcutta 120 (iv) AIR 1978 SC 59 Having perused the aforesaid Judgments we find that the Courts have more or less observed that though an Appellate Court has power to take additional evidence in a suitable case yet the discretion should not be exercised to fill up gaps or lacuna in the prosecution evidence There cannot be any dispute with regard to the said proposition. It may be stated that in none of the cases cited by Mr. Raval the Court was required to consider the question regarding permission to the prosecution to adduce additional evidence wherein the evidence was not led by the negligence of the learned P. P. In any case the Courts in all the cases have observed that the Appellate court has power to take additional evidence in a suitable case Therefore in our view each case has to be decided on facts of that particular case The Supreme Court in the case of Rajeswar Prasad Misra v. The State of West Bengal and Another reported in AIR 1965 SC 1887 while dealing with the question regarding power of the High Court in granting permission to adduce additional evidence has observed by interpreting Section 428 of the old Code equivalent to Section 391 of the new Code as under If the trial already held is found to be unsatisfactory or leads to a failure of justice the Code contemplates that a retrial may be ordered after setting aside the conviction or acquittal (as the case may be) Similarly the Code gives power to the Appellate Court to take additional evidence which for reasons to be recorded it considers necessary. Thus the Code also gives power to the Appellate Court to order one or the other as the circumstances may require leaving a wide discretion to it to deal appropriately with different cases It was also observed that The Legislature has not chosen to indicate the limits of the power and this Court must not be understood to have laid them down Cases may arise where either of the two courses may appeal equally appropriate Since a wide discretion is conferred on Appellate Courts the limits of that Courts jurisdiction must obviously be dictated by the exigency of the situation and fair play and good sense appear to be the only safe guides There is no doubt some analogy between the - power to order a retrial and the power to take additional evidence The former is an extreme step appropriately taken if additional evidence will not suffice Both actions subsume failure of justice as a condituin precedent There the resemblance ends and it is hardly proper to construe one section with the aid of observations made by this Court in the interpretation of the other section It was further observed that Additional evidence may be necessary for a variety of reasons which it is hardly necessary (even if it was possible) to list here We do not propose to do what the Legislature has refrained from doing namely to control discretion of the appellate Court to certain stated circumstances It may however be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it The power must be exercised sparingly and only in suitable cases Once such action is justified there is no restriction on the kind of evidence which may be received It may be formal or substantial. It must of course not be received in such a way and to cause prejudice to the accused as for example it should not be received as a disguise for retrial or to change the nature of the case against him The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise. (Emphasis supplied )" ( 9 ) THE said judgment is followed by the Supreme Court in a later case of Ratilal Bhanji Mithani v. The State of Maharashtra and Others reported in AIR 1971 SC 1630 by observing that"the Criminal courts and the High Courts have ample power and jurisdiction even in a case of a conviction to direct additional evidence in the interest of justice and fair play rather than take a different view of the oral evidence Much more so can the High Court in a case of discharge direct even before setting aside the order of discharge to take further evidence or additional evidence if it considers that it is necessary in the interest of justice to do so". ( 10 ) IT is clear from the aforesaid two decisions of the Supreme Court that the Appellate Court can take additional evidence of can order to take additional evidence if it reaches a conclusion that the trial held is unsatisfactory of leads to failure of justice Thus failure of justice is a prime consideration for the Appellate Court in exercising the discretion Considering the guidelines in the said judgment we are required to decide the Application on hand We are conscious of the fact that the power is required to be exercised sparingly and only in suitable cases and therefore the question before us is whether the application before us is of that category wherein we should exercise our discretion in granting the permission to adduce additional evidence As stated above in the instant case the prosecution has already produced documents vide list Exh. 6. The respondents were aware about the said documents However due to negligence on the part of the prosecutor the said documents have not been proved The documents in question are The Panchanama of the scene of offence the Inquest Panchanama report forwarded to PSO etc. 6. The respondents were aware about the said documents However due to negligence on the part of the prosecutor the said documents have not been proved The documents in question are The Panchanama of the scene of offence the Inquest Panchanama report forwarded to PSO etc. which are merely required to be proved formally The prosecution could have proved these documents by examining the panchas and the Police Constable Since this is a case which rests on circumstantial evidence and the allegation that the respondent No. 1 has committed the murder of his own wife more particularly in view of the fact that the dead body was found from the house of the respondents the ligature mark on the neck of the deceased and some other injuries on the person of the deceased having been found by the Doctor the respondent No. 1 even though knowing the said facts fully well having informed Chakubhai Arjan PW 6 Exh. 14 and Dr. Panara PW. 2 Exh. 10 that his wide had become unconscious on account of sickness and thus concealing the truth are some of the circumstances which are already proved and with a view to proving the immediate conduct of the first respondent before the Police Officer the report of the Police Officer the Panchanama and the Inquest Panchanama are only required to be proved As stated above the documents are already on record and the respondents are aware about the same and therefore if the prosecution is allowed to lead evidence to prove those documents we think it will not cause surprise to the respondents Since we are of the view that the said documents have not been proved due to the negligence or inadvertence and mainly owing to the carelessness of the learned P. P. we feel that we would fail in our duty if we reject the application for allowing the prosecution to adduce additional evidence at this stage. ( 11 ) IN the case of Aktar Hussain v. Emperor reported in AR 1925 Patna 526 it is observed that:"the scope of S. 428 is prima facie not limited by any consideration save that the Appellate Court should be of opinion that additional evidence is necessary and should record its reasons. ( 11 ) IN the case of Aktar Hussain v. Emperor reported in AR 1925 Patna 526 it is observed that:"the scope of S. 428 is prima facie not limited by any consideration save that the Appellate Court should be of opinion that additional evidence is necessary and should record its reasons. The object of the section is just as much the prevention of the escape of a guilty person through some carelessness or ignorant procedure of the Court Sub-Inspector or the Magistrate as the vindication of the innocence of a person wrongfully accused where the same carelessness or ignorance has omitted to bring on the record circumstances essential to the elucidation of truth. It is impossible on the plain words of the enactment to differentiate between these two eases. It would not be a sound exercise of discretion to do so in the circumstances of India where justice when it fails does so by erroneous acquittal at least as much as by erroneous conviction". ( 12 ) IT was further observed therein that:" In India the onus is placed on the Court not merely to listen to the evidence but to inquire to the utmost into the truth of the matter and so to secure justice. Accordingly if any restriction is to be placed upon the power conferred on the Appellate Court by Section 428 it certainly cannot be that negligence or inadvertence on the part of the prosecutin is to be allowed to effect a miscarriage of justice: on the contrary the enactment is like the other provisions referred to directed to the attainment of justice even at a late stage in the proceedings by the introduction of further materials which the Court judges to be essential to a just decision of the case". ( 13 ) IN view of the aforesaid decisions we are clearly of the view that negligence on the part of the prosecution is no ground for not taking additional evidence against the accused as otherwise justice will fail. ( 14 ) AT this stage Mr. Raval has submitted his written objections against the present application. Since his oral submissions more or less cover the written objections we do not think it proper to deal with the written objections. ( 14 ) AT this stage Mr. Raval has submitted his written objections against the present application. Since his oral submissions more or less cover the written objections we do not think it proper to deal with the written objections. ( 15 ) UNDER the circumstances we think that this is a fit case wherein we should exercise out discretion for allowing the prosecution to adduce additional evidence as prayed for in this application. ( 16 ) IN the result this Misc. Criminal Application is allowed. The learned Sessions Judge Jamnagar is directed to record the evidence of the witnesses whose names appear in Para 2 (1) and 2 (2) of the application to prove the necessary documents which are on record listed vide Exh. 6 on or before 16/12/1982 so also to record the further statement of the respondents in accourdance with law after which he shall send the same alongwith the record to this court. Apart from the said witnesses it would be open to the State to examine the Investigating Officer in case of need. ( 17 ) THE office is directed to send the record of the case to the learned Sessions Judge Jamnagar forthwith. Rule is made absolute accordingly .