ORDER : Aditya Kumar Trivedi, J. Heard learned counsel for the petitioner as well as learned APP for the State. 2. While challenging the finding recorded by the learned lower court and further, flashing improbabilities persisting in the prosecution case, more particularly, relating to place of occurrence, it has been submitted by the learned counsel for the appellant during course of argument over merit of instant appeal that though the occurrence has been alleged inside a room but from the evidence of Investigating Officer, PW-7, it is evident that his objective finding relating thereto demolished the prosecution version being the room to be the alleged place of occurrence. 3. Learned APP intervening into the matter drew the attention towards paragraph-6 of the case diary where under place of occurrence has been described by the Investigating Officer and further submitted that the Investigating Officer had found connecting materials at the place of occurrence which could be the positive evidence which could be suggestive of the room to be the place of occurrence. But the Investigating Officer, for reasons best known to him or as to the learned APP, Incharge of the case, though place of occurrence has been detailed by the Investigating Officer, PW-7, but the relevant objective finding has not been stated during course of his evidence and for that, the court should exercise its power in terms of Section 391 of the Cr.P.C directing the learned lower court to record the evidence of the Investigating Officer, PW-7 on that very score giving an opportunity to the appellant/accused for cross-examination. 4. Out of curiosity that really such thing has happened, we have also gone through para-7 of the case diary which contains objective finding of the PW and from perusal of the same, it is evident that crucial connecting materials have been left out by PW-7 during course of his evidence relating to his objective finding with regard to place of occurrence so detailed under para-6 of his deposition. For better appreciation we think to give a glimpse over prosecution case. 5. Succinctly, the case of the prosecution as stated is that appellant/convict/accused who happens to be son, namely, Md. Nasim Raza Rahmani @ Munna of the deceased, Motiur Rahman came on the fateful day. At that very time, the deceased was taking meal in his room. For better appreciation we think to give a glimpse over prosecution case. 5. Succinctly, the case of the prosecution as stated is that appellant/convict/accused who happens to be son, namely, Md. Nasim Raza Rahmani @ Munna of the deceased, Motiur Rahman came on the fateful day. At that very time, the deceased was taking meal in his room. Appellant/convict/accused had gone inside the room, bolted the room and then assaulted his father, deceased with Khanti, as a result of which the deceased succumbed to his injuries. The police was informed who reached at the place of occurrence and then thereafter necessary steps right from recording of Fard-e-beyan to inspection of place of occurrence, search & seizure, apprehension of accused etc. followed. 6. From description of place of occurrence, it is evident that the Investigating Officer had found copious blood over bed, wall as well as found Thali (plate), Katora (bowl) and also found Khanti with blood stain on the bed. But during course of his evidence as is evident from para-6, he had not stated the same. 7. Learned counsel for the appellant, at the present moment, has submitted that the aforesaid theme could not be allowed to come on record under the garb of Section 391 of the Cr.P.C. Furthermore, it has been submitted that the aforesaid lacuna happens to be deficiency in the prosecution case which is found duly exposed, is to lean in favour of appellant whereupon, the same appears to be non permissible in the eye of law. Furthermore, in support of his contention, learned counsel for the appellant has referred to the case of Shiva Balak Raj v. The State of Bihar as reported in 1986 PLJR 604 which happens to be based upon the case of Rajeshwar Prasad Misra v. State of Bengal reported in AIR 1965 SC 1887 . 8. It has been submitted on behalf of learned APP that it is not a lacuna rather it happens to be lapse on the part of the Investigating Officer as well as on the part of the prosecution agency who either out of ignorance or with some extraneous consideration left out the relevant materials which were existing since before and further, the appellant/convict/accused who was knowing since before on account of receipt of police paper containing the same in terms of Section 207 of the Cr.P.C. 9. That being so, the aforesaid event should not be considered as to fill up the lacuna existing in the prosecution case. 10. Presence of Section 391 happens to be akin to Order 41, Rule 27 of the CPC. Before amendment its presence was there under Section 428 of the Cr.P.C. The basic feature for introduction of the aforesaid provision is to give a free hand to the appellate court to do justice in between the prosecutor as well as the persons prosecuted and during course thereof, if the court finds that certain evidence is necessary in order to enable it to give a correct and proper finding, it would be justified in allowing the prayer in terms of Section 391 of the Cr.P.C. So, there should be proper application of judicial mind at the stage of consideration whether the prayer so made would be entertain able in course of dispensing of justice and during course thereof, the totality of the event it to be taken note of. 11. In Ashok Tshering Bhutia v. State of Sikkim reported in 2011 Cri. L.J. 1770, the ambit and scope of Section 391 of the Cr.P.C. has been elaborately dealt with and for better appreciation the same is quoted below:- 15. Additional evidence at appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity. The primary object of the provisions of Section 391 Cr.P.C. is the prevention of a guilty man's escape through some careless or ignorant action on part of the prosecution before the court or for vindication of an innocent person wrongfully accused, where the court omitted to record the circumstances essential to elucidation of truth. Generally, it should be invoked when formal proof for the prosecution is necessary. Generally, it should be invoked when formal proof for the prosecution is necessary. (Vide Rajeswar Prasad Misra v. The State of West Bengal & Anr., AIR 1965 SC 1887 ; Ratilal Bhanji Mithani v. The State of Maharashtra & Ors., AIR 1971 SC 1630 ; Rambhau & Anr. v. State of Maharashtra, AIR 2001 SC 2120 ; Anil Sharma & Ors. v. State of Jharkhand, AIR 2004 SC 2294 ; Zahira Habibulla H. Sheikh & Anr. v. State of Gujarat & Ors., (2004) 4 SCC 158 ; and Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi), AIR 2010 SC 2352 ). 16. This Court in State of Gujarat v. Mohanlal Jitamalji Porwal & Anr., AIR 1987 SC 1321 , dealing with the issue held as under: "...To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. 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 persona-non-grata whose cause may be treated with disdain. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest....." 17. In Rambhau (supra), a larger Bench of this Court held as under: "Incidentally, Section 391 forms an exception to the general rule that an Appeal must be decided on the evidence which was before the Trial Court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up the lacuna but to subserve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, 1908 Section 391 is thus akin to Order 41, Rule 27 of the C.P. Code." (Emphasis added) 18. In view of the above, the law on the point can be summarised to the effect that additional evidence can be taken at the appellate stage in exceptional circumstances, to remove an irregularity, where the circumstances so warrant in public interest. Generally, such power is exercised to have formal proof of the documents etc. just to meet the ends of justice. However, the provisions of Section 391 Cr.P.C. cannot be pressed into service in order to fill up lacunae in the prosecution's case. 12. In Rejendra Prasad v. Narcotic Cell as reported in 1999 SCC (Crl)1062, It has been held as follows:- "A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage 'to err is human' is the recognition of the possibility of making mistakes to which humans are proned. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting, errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. 13. No party in a trial can be foreclosed from correcting, errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. 13. In Zahira Habibullah H. Sheik v. State of Gujarat as reported in 2004 SCC (Crl) 999 (popularly known as Best Bakery Case), it has been held:- The appellate Court can direct the taking up of further evidence in support of the prosecution; a fortiori it is open to the Court to direct the Accused persons may also be given a chance of adducing further evidence, who may file an application in this regard, in an appropriate case. Section 391 is in the nature of an exception to the general rule and the powers under it must also be exercised with great care, especially, on behalf of the prosecution lest the admission of additional evidence for the prosecution operates in a manner prejudicial to the defence of the Accused. The legislative intent in enacting Section 391 appears to be the empowerment of the appellate Court to see that justice is done between the prosecutor and the persons prosecuted by arriving at the truth, that is, the prevention of the guilty man's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused; and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper finding, it would be justified in taking action under Section 391. However, there is no question of filling of any lacuna in the case in hand." 14. In State of Gujarat v. Mohanlal Jitamalji Porwal as reported in AIR 1987 SC 1321 , it has been held as follows:- 5. ………….Apart from the fact that the alleged lacuna was a technical lacuna in the sense that while the opinion of the Mint Master had admittedly been placed on record it had not been formally proved the report completely supported the case of the prosecution that the gold was of the specified purity. To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. Ends of justice are not satisfied only when the accused in a criminal case is acquitted. To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. 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…………… 15. In the case of Rajeshwar Prasad Misra reported in AIR 1965 SC 1887 , the Hon'ble Apex Court has considered the extent of power to be exercised by the appellate court while adjudicating upon necessity of additional evidence and in para-9, it has been held as follows:- 9. 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 as to cause prejudice to the accused as for example it should not be received as a disguise for a 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. Commentaries upon the Code are full of cases in which the powers under Section 428 were exercised. We were cited a fair number at the hearing. Some of the decisions suffer from the sin of generalisation and some others from that of arguing from analogy. The facts in the cited cases are so different that it would be futile to embark upon their examination. We might have attempted this, if we could see some useful purpose but we see none. Some of the decisions suffer from the sin of generalisation and some others from that of arguing from analogy. The facts in the cited cases are so different that it would be futile to embark upon their examination. We might have attempted this, if we could see some useful purpose but we see none. We would be right in assuming the existence of a discretionary power in the High Court and all that we consider necessary is to see whether the discretion was properly exercised. 16. In the case of Rajeshwar Prasad Misra (supra), it is evident that the Hon'ble Apex Court had dealt with the situation prevailing in the background of facts of the concerned case and, as is evident does not resemble with the question having confronted by us. Investigating Officer, PW-7 had has appearance before the learned lower court and deposed fairly but the crucial matter relevant for proper adjudication of instant trial had purposely been withheld to depose or forbidden to depose, whichever may, and in likewise manner prosecutor also was not at all vigilant due to which such situation cropped up and that being so the principle enunciated under Rajeshwar Prasad Misra (supra) is not at all found applicable in the facts and circumstances of the case. 17. Moreover, the lapses as perceived by us, in the aforesaid background, if allowed to be rectified will not be under the category of allowing prosecution to fill up lacuna rather it happens to be on account of some sort of lapses at their end by which the aforesaid materials persisting since before could not be brought up on record. Such situation has been perceived by the Hon'ble Apex Court in the case of Rejendra Prasad v. Narcotic Cell as reported in 1999 SCC (Crl)1062 as well as Ashok Tshering Bhutia v. State of Sikkim reported in 2011 Cri. L.J. 1770. 18. That being so, we are of the view that the learned lower court be directed to record evidence of PW-7 afresh and for that learned APP is directed to inform the state machinery to trace out whereabouts of PW-7 and produce him on the specified date so fixed by the learned lower court for his evidence without any fail, otherwise, necessary order will follow, with a further liberty to the appellant to cross-examine. Samarendra Pratap Singh, J. - I agree.