JUDGMENT : VIPUL M. PANCHOLI, J. 1. Rule. Learned APP, Mr. H.K. Patel, waives service of rule for the Respondent-State and learned Advocate, Mr. P.Y. Divyeshwar, waives for the original complainant. 2. This is an application filed under Section 391 of the Code of Criminal Procedure, 1973 (in brief, ‘the Code’), whereby, the applicant, i.e. the original appellant in Criminal Appeal No. 1492 of 2019, has prayed that the applicant be permitted to adduce additional evidence by examining an expert, namely Dr. M. Narayana Reddy, Hyderabad, as a witness in his defence, which was not permitted, though, prayed for before the learned Sessions Judge, Jamnagar (in brief, the ‘trial Court’), vide application Exhibit-994 in Sessions Case No. 148 of 2016, Dated: 11.06.2019. 3. Heard, learned Advocate, Mr. Saurin Shah, appearing for the applicant, learned PP, Mr. Mitesh Amin, appearing with learned APP, Mr. H.K. Patel, for the Respondent-State and learned Sr. Advocate, Mr. J.M. Panchal, appearing with learned Advocate, Mr. P.Y. Divyeshwar, appearing for the original complainant. 4. Learned Advocate, Mr. Shah, appearing for the applicant submitted that the applicant has preferred Criminal Appeal No. 1492 of 2019 before this Court, challenging the judgment and order dated 20.06.2019, passed by the concerned trial Court in Sessions Case No. 148 of 2016, whereby, the trial Court convicted and sentenced the present applicant-original appellant as under; (1) For the offence punishable under Section 302, read with Sections 34 and 114 of the Indian Penal Code, 1860 (in brief, ‘IPC’), to undergo imprisonment for life and to pay fine of Rs.10,000/- and in case of default to undergo further simple imprisonment for one year; (2) For the offence punishable under Section 323, read with Sections 34 and 114 of the IPC, to undergo rigorous imprisonment for one year and to pay fine of Rs.5000/- and in case of default to undergo further simple imprisonment for three months; (3) For the offence punishable under Section 506(1), read with Sections 34 and 114 of the IPC, to undergo rigorous imprisonment for two years and to pay fine of Rs.5,000/- and in case of default to undergo further simple imprisonment for three months; 4.1 Learned Advocate, Mr. Shah, referred to Paragraph-2 of the present application and submitted that the applicant had submitted an application below Exhibit-830, under Section 311 of the Code, before the trial Court on 05.03.2019, i.e. during the pendency of the trial, indicating that certain crucial witnesses, viz. (1) Mr. P.P. Pandey, who had carried out the investigation in the FIR being I-C.R. No. 102 of 1990, registered with Jam-Jodhpur Police Station, (2) Mr. H.P. Singh, who also investigated the aforesaid FIR and (3) Mr. T.S. Bisht, who was the then DSP, Jamnagar, though, were shown as the witnesses by the prosecution, they were dropped by the prosecution, later on. 4.2 Learned Advocate, Mr. Shah, further, submitted that about 40 witnesses, some of whom are police personnel and whose examination is necessary for effective adjudication, are conveniently dropped by the prosecution before the trial Court and therefore, the said witnesses be examined as the Court witnesses. It was submitted that the aforesaid application came to be rejected by the trial Court on 12.03.2019, against which the present applicant filed Special Criminal Application No. 4115 of 2019 before this Court. 4.2.1 It was submitted that this Court partly allowed Special Criminal Application No. 4115 of 2019 vide order dated 16.04.2019 and directed that (1) Mr. P.P. Pandey, (2) Mr. H.P. Singh, and (3) Mr. T.S. Bisht, be examined as the Court witnesses and the other witnesses, as per Annexure-Z to the said application, be examined as defence witnesses. 4.3 Learned Advocate, Mr. Shah, submitted that against the order passed by this Court dated 16.04.2019, the original complainant filed Special Leave Petition (Criminal) No. 4993 of 2019 before the Hon’ble Apex Court. 4.3.1 The applicant, herein, also challenged the order of this Court dated 16.04.2019, by filing Special Leave Petition (Criminal) No. 5234 of 2019 before the Apex Court.- 4.3.2 It was submitted that before the SLP filed by the present applicant could be listed on the Board for hearing, the SLP filed by the original complainant came to be disposed of by the Apex Court vide order dated 24.05.2019 and thereby, direction was issued to the concerned trial Court to complete the trial by 20.06.2019. 4.3.3 It was submitted that the Apex Court passed the order dated 24.05.2019, without issuing notice to the applicant. 4.3.3 It was submitted that the Apex Court passed the order dated 24.05.2019, without issuing notice to the applicant. 4.3.4 It was, further, submitted that when the SLP filed by the present applicant came-up for hearing on the Board on 12.06.2019, the Hon’ble Apex Court did not interfere with the order passed by this Court dated 16.04.2019, on the ground that the three Judges Bench of the Apex Court has already passed an order on 24.05.2019 in the SLP (Criminal) No. 4993 of 2019 filed by the original complainant and thereby, disposed of the same. 4.3.5 Learned Advocate, Mr. Shah, submitted that the applicant, therefore, filed Review Petition (Criminal) No. 361 of 2021 in SLP (Criminal) No. 4993 of 2019. However, the Apex Court also rejected the Review Petition vide order dated 21.07.2022. 4.3.6 At this stage, it was pointed out that during the pendency of Special Criminal Application No. 4115 of 2019 before this Court, the applicant submitted an application below Exhibit-858 before the trial Court on 30.03.2019, whereby, it was submitted that the applicant was desirous to examine Dr. H.L. Trivedi as a defence witness. 4.3.6.1 It was submitted that Dr. H.L. Trivedi had given an opinion on 04.09.1991 to Mr. P.P. Pandey with regard to the death of Prabhudas Madhavji. Hence, the trial Court passed an order to issue summons to the said witness. 4.3.6.2 Pursuant to the order passed by the trial Court, the concerned police authority recorded the statements of Dr. Vinit Mishra and DR. Pankaj Shah, which indicated that Dr. H.L. Trivedi was unable to come to depose due to his poor health condition. 4.3.6.3 In view of the above, the applicant gave another application vide Exhibit-862 before the trial Court to call Dr. Pankaj R. Shah to remain present as a defence witness with records and papers so also the opinion given by Dr. H.L. Trivedi on 04.09.1991, which pertained to death of Prabhudas Madhavji. Pursuant thereto, the trial Court issued summons to Dr. Pankaj R. Shah. 4.3.7 Learned Advocate, Mr. Shah, submitted that, in the meantime, the trial Court examined the aforesaid three witnesses, viz. (1) Mr. P.P. Pandey, (2) Mr. H.P. Singh, and (3) Mr. T.S. Bisht, as the Court witnesses, as directed by this Court vide order dated 16.04.2019. Pursuant thereto, the trial Court issued summons to Dr. Pankaj R. Shah. 4.3.7 Learned Advocate, Mr. Shah, submitted that, in the meantime, the trial Court examined the aforesaid three witnesses, viz. (1) Mr. P.P. Pandey, (2) Mr. H.P. Singh, and (3) Mr. T.S. Bisht, as the Court witnesses, as directed by this Court vide order dated 16.04.2019. However, since, the applicant wanted to challenge the order of this Court dated 16.04.2019, permitting examination of 24 witnesses as defence witnesses, before the Apex Court, the applicant did not examine the aforesaid 24 witnesses as the defence witnesses. 4.3.7.1 It was also submitted that the applicant filed an application below Exhibit-974 on 11.06.2019 before the trial Court, requesting for time to file rejoinder, as the complainant side had filed written submissions. It was also stated in the said application that the applicant wants to examine Dr. M. Narayana Reddy, Medical Consultant, Hyderabad, as an expert to prove the real cause of death of Prabhudas Madhavji. 4.3.7.2 It was submitted that the trial Court granted the time upto by 03:30 p.m. of 11.06.2019, though, it was fully aware that the expert witness shall not be in a position to come from Hyderabad within such a short time. It was, therefore, averred that the applicant could not examine Dr. M. Narayana Reddy as a defence witness. 4.3.8 Thereafter, the trial Court passed the judgment and order dated 20.06.2019, whereby, the present applicant came to be convicted and sentenced, as referred to in Paragraph-4, herein above. 4.4 Learned Advocate, Mr. Shah, therefore, submitted that in the above background, the applicant has preferred the present application. 4.5 Learned Advocate, Mr. Shah, invited the attention of this Court to the depositions of some of the prosecution witnesses, viz. Rameshchandra Madhavji Vaishnan-PW-27, Dr. Nilesh Hargovind Kaalola-PW-19, Kantilal Nathabhai Pansuriya-PW-20, Dr. Shasikant Vallabhdas Sapariya-PW-21. 4.5.1 Learned Advocate, Mr. Shah, submitted that Dr. Nilesh Kaalola-PW-19, as per his deposition, had examined about 72 persons on 09.11.1990, including the deceased-Prabhudas Madhavji and other injured. 4.5.2 It was submitted that in the history given before PW-19-Dr. Kaalola, deceased-Prabhudas Madhavji did not name any of the police personnel in the history given before this witness. 4.5.3 It was, further, submitted that in the cross-examination Dr. Nilesh Kaalola-PW-19 specifically stated that the witness had come for the treatment of the injuries sustained by them, but, Dr. 4.5.2 It was submitted that in the history given before PW-19-Dr. Kaalola, deceased-Prabhudas Madhavji did not name any of the police personnel in the history given before this witness. 4.5.3 It was, further, submitted that in the cross-examination Dr. Nilesh Kaalola-PW-19 specifically stated that the witness had come for the treatment of the injuries sustained by them, but, Dr. Kaalola-PW-19 did not give any treatment to the deceased and other injured persons. 4.5.4 At this stage, learned Advocate, Mr. Shah, referred to the opinion given by Dr. H.L. Trivedi to Mr. P.P. Pandey on 04.09.1991. A copy of the said opinion is produced at Page-8825 of the Paper Book. 4.5.4.1 After referring to the same, it was submitted that the applicant had submitted an application to examine Dr. H.L. Trivedi, as a defence witness, before the trial Court. However, due to poor health condition of Dr. H.L. Trivedi, he could not be examined as a defence witness and instead, one Dr. Pankaj Shah was examined as a defence witness, who had remained present with all the papers, including the opinion given by Dr. H.L. Trivedi to Mr. P.P. Pandey on 04.09.1991, before the trial Court. 4.5.4.2 It was, further, submitted that Dr. Pankaj Shah had identified the signature of Dr. H.L. Trivedi on the opinion dated 04.09.1991. 4.5.5 Learned Advocate, Mr. Shah, then, referred to the deposition of Dr. Sanjay Natvarlal Pandya-PW- 23 and submitted that the said witness had examined the deceased-Prabhudas as well as an injured- Rameshbhai. It was submitted that Dr. Pandya-PW-23 had issued death certificate, which was also signed by Dr. Gajera. 4.5.5.1 Learned Advocate, Mr. Shah, that Dr. Gajera, though, had signed the death certificate of the deceased-Prabhudas Madhavji, he is not examined by the prosecution. 4.5.6 Learned Advocate, Mr. Shah, then, referred to the deposition of Dr. Satish Dinkar Kaalele-PW-24, who had conducted the PM of the body of the deceased- Prabhudas. 4.5.7 It was submitted that the said witness had given the opinion about the cause of death of the deceased-Prabhudas on the basis of the report given by the Pathologist and other doctors. 4.5.8 In his deposition, Dr. Satish-PW-24 stated that he has given the cause of death, on the basis of probabilities and possibilities. 4.5.9 Learned Advocate, Mr. Shah, also pointed out that the panel Dr. 4.5.8 In his deposition, Dr. Satish-PW-24 stated that he has given the cause of death, on the basis of probabilities and possibilities. 4.5.9 Learned Advocate, Mr. Shah, also pointed out that the panel Dr. Mangal, who had conducted PM of the body of the deceased is also not examined by the prosecution. 4.5.10 It was, thus, stated that the trial Court ought to have held that the prosecution has failed to prove the exact cause of death and therefore, it is necessary for the applicant to examine Dr. M. Narayana Reddy as a defence witness. 4.5.11 Learned Advocate, Mr. Shah, also referred to the depositions of some other witnesses, however, the same does not require to be gone into detail in this application. 4.6 Learned Advocate, Mr. Shah, submitted that the applicant is not responsible in any manner for the delay caused in conducting the trial. 4.7 Learned Advocate, Mr. Shah, next invited the attention of this Court to the provisions of Section 391 of the Code and contended that at the time of dealing with the appeal, if, the appellate Court deems it fit that there is a need for recording additional evidence, then, the trial Court has powers to record such evidence by, itself, or it can issue a direction to the concerned subordinate Court to record the same, by recording the reasons for the same, in writing. 4.7.1 In the case on hand, the evidence led by the prosecution is not sufficient to prove the exact cause of death of late Prabhudas Madhavji. It was, therefore, submitted that there is a need to record the evidence of Dr. M. Narayana Reddy, as a defence witness. 4.7.2 It was submitted that the determination of exact cause of death of late Prabhudas Madhavji is most crucial that will affect the final outcome of the appeal filed by the present applicant, against the impugned judgment and order of the trial Court. 4.8 In support of his submissions, learned Advocate, Mr. Shah, has placed reliance on the following authoritative pronouncements; (1) ‘STATE OF GUJARAT VS. MOHANLAL JITAMALJI PORWAL & ANOTHER’, (1987) 2 SCC 364 ; (2) ‘ZAHIRA HABIBULLA H. SHEIKH & ANOTHER VS. STATE OF GUJARAT & ANOTHER’, (2004) 4 SCC 158 ; (3) ‘NATASHA SINGH VS. CENTRAL BUREAU OF INVESTIGATION (STATE)’, (2013) 5 SCC 741 ; (4) ‘ASIM @ MUNMUN @ ASIF ABDULKARIM SOLANKI VS. MOHANLAL JITAMALJI PORWAL & ANOTHER’, (1987) 2 SCC 364 ; (2) ‘ZAHIRA HABIBULLA H. SHEIKH & ANOTHER VS. STATE OF GUJARAT & ANOTHER’, (2004) 4 SCC 158 ; (3) ‘NATASHA SINGH VS. CENTRAL BUREAU OF INVESTIGATION (STATE)’, (2013) 5 SCC 741 ; (4) ‘ASIM @ MUNMUN @ ASIF ABDULKARIM SOLANKI VS. STATE OF GUJARAT’, (2020) SCC OnLine SC 1098; 4.9 Learned Advocate, Mr. Shah, therefore, prayed that this application be allowed. 5. On the other hand, learned PP, Mr. Mitesh Amin, appearing with learned APP, Mr. Patel, strongly opposed this application and submitted that the applicant has given the details of examination of defence witnesses in Paragraph-3 of this application. 5.1 It was submitted that the aspect, whether, the evidence produced by the prosecution to prove the cause of death of the deceased-Prabhudas before the trial Court are believable or not believable, can be examined at the time of final hearing of the appeal, by appreciating the material on record. However, on that ground alone, the present application filed under Section 391 of the Code, is not maintainable. 5.2 Learned PP, Mr. Amin, referred to the depositions of Dr. Pandya-PW-23 and Dr. Satish-PW-24 and after referring to the same, submitted that Dr. Pandy-PW-23 has given clear opinion with regard to cause of death of the deceased-Prabhudas. 5.2.1 It was submitted that Dr. Pandya-PW-23, in his examination-in-chief, his cross-examination and on five different occasions, has given the clear opinion with regard to the exact cause of death of the deceased-Prabhudas. 5.2.2 It was submitted that Dr. Pandya-PW-23, in his deposition, stated that he is practicing as Kidney Specialist and Consultant Nephrologist in N.M. Virani Hospital, Rajkot. 5.2.3 It was submitted that Dr. Satish Kaalele was one of the panel doctors, which had conducted PM of the body of the deceased-Prabhudas, who was examined by the prosecution as PW-24. It was, therefore, submitted that there is no need to examine Dr. Gajera, who was the second doctor of the panel, and his non-examination is immaterial. 5.2.4 Learned PP, Mr. Amin, therefore, urged that the prosecution has successfully proved the cause of death of the deceased-Prabhudas by examining the aforesaid two doctors as PW Nos. 23 and 24, respectively and therefore, it cannot be said that there is insufficient evidence or material on record with regard to the exact cause of death of the deceased-Prabhudas. 5.3 Learned PP, Mr. Amin, therefore, urged that the prosecution has successfully proved the cause of death of the deceased-Prabhudas by examining the aforesaid two doctors as PW Nos. 23 and 24, respectively and therefore, it cannot be said that there is insufficient evidence or material on record with regard to the exact cause of death of the deceased-Prabhudas. 5.3 Learned PP, Mr. Amin, submitted that the applicant had examined Dr. Pankaj Shah, Kidney Specialist, as Defence Witness No.1, since, Dr. H.L. Trivedi was unable to remain present before the trial Court due to his poor health condition. It was, thus, submitted that sufficient opportunity was given to the applicant to present his defence with regard to the opinion given by Dr. Pandya-PW-23 and Dr. Satish- PW-24. 5.4 Learned PP, Mr. Amin, referred to the written submissions filed on behalf of the opponent and submitted that the applicant, herein, adopted dilatory tactics before the trial Court and now, he is doing the same thing before this Court, also. 5.5 It was submitted that the prosecution filed the pursis closing its evidence on 12.02.2019 and thereafter, the applicant gave an application to transfer the case to some other Court on 16.02.2019. 5.6 Learned PP, Mr. Amin, referred to the order dated 16.04.2019, passed by this Court in the petition filed by the applicant, i.e. Special Criminal Application No. 4115 of 2019, more particularly Paragraphs-27 to 31 thereof, whereby, the applicant was permitted to examine the witnesses, as per the list annexed vide Annexure-Z, as the defence witnesses. 5.6.1 Learned PP, Mr. Amin, submitted that pursuant to the order dated 16.04.2019 passed by this Court, when the trial Court called the concerned witnesses for recording their evidence, the applicant did not examination them and dropped them as defence witnesses. 5.7 Learned PP, Mr. Amin, submitted that the Hon’ble Apex Court vide order dated 24.05.2019, passed in SLP No. 4993 of 2019, had issued direction to the concerned trial Court to complete the trial by 20.06.2019, while specifically observing that “No Dilatory tactics be permitted by any party in any manner. ...” and despite that the applicant tried to delay the trial by filing various applications. 5.8 Learned PP, Mr. ...” and despite that the applicant tried to delay the trial by filing various applications. 5.8 Learned PP, Mr. Amin, pointed out that the further statement of the applicant, under Section 313 of the Code, came to be recorded on 05.03.2019, wherein, the applicant stated that, in case of need, he shall provide the list of witnesses to be examined in his defence. 5.8.1 It was submitted that, at that stage also, the applicant did not give any application that he wants to examine Dr. M. Narayana Reddy as a defence witness. 5.9 Learned PP, Mr. Amin, invited the attention of this Court to the order of the Hon’ble Apex Court dated 20.08.2020, whereby, this Court is requested to decide the appeal of the present applicant and the appeals filed by other co-convicts by July, 2021 and despite that the applicant and other co-convicts delayed the hearing of the appeals. 5.9.1 At this stage, learned PP, Mr. Amin, submitted that the applicant had preferred an application for suspension of sentence before this Court, which was dismissed by this Court. Against the aforesaid order, the applicant had preferred Special Leave Petition (Criminal) Diary No. 2028 of 2020 and the same is withdrawn by the applicant, recently. Learned PP, Mr. Amin, supplied a copy of the said order, separately. 5.9.2 Learned PP, Mr. Amin, submitted that the criminal appeals filed by the applicant and other coconvicts are pending since 2019 and though, the same are listed from time to time, instead of proceeding with the same, at this belated stage, the present application is filed. 5.10 Learned PP, Mr. Amin, then referred to the provisions of Section 391 of the Code and contended that, in view of the above facts of the present case, the decisions relied on by the learned Advocate for the applicant shall not apply to the facts of the case on hand and therefore, this application be dismissed. 6. Learned Sr. Advocate, Mr. Panchal, appearing with learned Advocate, Mr. Divyeshwar, for the original complainant adopted the submissions made by the learned PP, Mr. Amin, and submitted that the request made by the applicant to permit him to examine an additional witness in his defence does not require to be granted. 6.1 Learned Sr. Advocate, Mr. 6. Learned Sr. Advocate, Mr. Panchal, appearing with learned Advocate, Mr. Divyeshwar, for the original complainant adopted the submissions made by the learned PP, Mr. Amin, and submitted that the request made by the applicant to permit him to examine an additional witness in his defence does not require to be granted. 6.1 Learned Sr. Advocate, Mr. Panchal, submitted that, in the present case, sufficient material is produced on record by the prosecution with a view to prove the exact cause of death of the deceased– Prabhudas. Therefore, there is no need to grant permission to the applicant to examine an additional witness to prove the cause of death. 6.2 It was submitted that the applicant has adopted dilatory tactics before the trial Court as well as before this Court by filing various application from time to time, and therefore, while deciding this application filed under Section 391 of the Code, said aspect is also required to be taken into consideration by this Court. 6.3 Learned Sr. Advocate, Mr. Panchal, submitted that the alleged offence is of the year 1990 and the applicant gave different applications, at different stages, to delay the trial. 6.4 Learned Sr. Advocate, Mr. Panchal, also referred to the various orders passed by Hon’ble the Apex Court as well as by this Court, which reflect the conduct of the present applicant. 6.5 Learned Sr. Advocate, Mr. Panchal, also referred to the order of this Court dated 16.04.2019, passed in Special Criminal Application No. 4115 of 2019 and submitted that this Court permitted the applicant to examine 26 witnesses, as mentioned in Annexure-Z to the said application, and also recorded the assurance given by the learned Advocate for the applicant that the applicant shall provide the list, i.e. Annexure-Z to the said application, to the concerned trial Court so that the same does not result in delay in completing the trial, since, this Court vide order dated 16.04.2019 directed, in the application filed by the original complainant, i.e Special Criminal Application No. 4113 of 2019, that let the trial be proceeded with, on day-to-day basis. This Court also observed that no delay shall be caused on account of examination of witnesses, mentioned in Annexure-Z to SCR.A. 4115 of 2019, by the applicant. 6.6 Learned Sr. Advocate, Mr. This Court also observed that no delay shall be caused on account of examination of witnesses, mentioned in Annexure-Z to SCR.A. 4115 of 2019, by the applicant. 6.6 Learned Sr. Advocate, Mr. Panchal, also invited the attention of this Court to the order passed by the Hon’ble Apex Court, Dated: 24.05.2019, in SLP (Criminal) No. 4993 of 2019 which was filed by the original complainant, wherein, it has noted the dilatory tactics adopted by the present applicant. It was, therefore, submitted that this is nothing but an attempt on the part of the applicant to interfere with the administration of justice. 6.7 Learned Sr. Advocate, Mr. Panchal, submitted that so far as the affidavit of Dr. M. Narayana Reddy, whom the applicant seeks to examine as an expert or an additional defence witness by way of this application, is concerned, in view of the decision of the Apex Court in ‘ESHWARAIAH AND ANOTHER VS. STATE OF KARNATAKA’, (1994) 2 SCC 677 , wherein, the Apex Court held that in case of conflict of opinions of medical experts, as to cause of death, the opinion of the doctor, who performed the post mortem be given preference, such an affidavit filed by the expert is not required to be taken into consideration by this Court 6.7.1 Learned Sr. Advocate, Mr. Panchal, also placed reliance on the decision of the Apex Court in the case of ‘TANVIBEN PANKAJKUMAR DIVETIA VS. STATE OF GUJARAT’, (1997) 7 SCC 156 , wherein, it is reiterated that the opinion of the doctor, who actually examined the injured or carried out the post mortem, must be given preference to the opinion of an expert, who gave his opinion only on the basis of injury report, x-ray, PM note etc.. 6.8 Learned Sr. Advocate, Mr. Panchal, finally submitted that, in view of the above, the decisions relied on by the learned Advocate for the applicant shall not apply to the facts of the case on hand and therefore, this application be dismissed. 7. Having heard the learned Counsels for the parties and having perused the material on record, the issue, which is required to be decided by this Court in the present application is, as to whether, is it necessary to accede to the request made by the applicant to permit him to examine the so called expert, i.e. Dr. 7. Having heard the learned Counsels for the parties and having perused the material on record, the issue, which is required to be decided by this Court in the present application is, as to whether, is it necessary to accede to the request made by the applicant to permit him to examine the so called expert, i.e. Dr. M. Narayana Reddy, as a defence witness, for deciding the appeal filed by the present applicant or not. 7.1 At the outset, it would be fruitful to refer to the depositions of some of the witnesses examined by the prosecution, during the course of trial. 7.2 Dr. Pandya-PW-23, in his deposition, has stated that he has been practicing as a Kidney Specialist at N.M. Virani Hospital, Rajkot. This witness has, further, submitted that on 12.11.1990, while he was on duty, the deceased-Prabhudas and one Rameshbhai had come in the OPD Consultation for examination. PW- 23, further, submitted that as both the persons had serious problems with regard to kidney, they were admitted in the hospital and PW-23 had given them treatment, which included dialysis of both the patients. According to PW-23, the damage caused to the muscle lead to renal failure and as a side-effect of the same to the lungs and heart, the death of the deceased-Prabhudas had occurred. PW-23, further, stated that, if, a person is made to do sit-ups continuously or crawl, then, it can damage the kidney and in the present case, the death has occurred due to kidney failure. PW-23 stated that the deceased- Prabhudas had given the history of over-exertion or physical labour before about 13 days, reduction in urine for the last seven days and the respiratory issue for the last three days along with red urine. PW-23 stated that the cause of death of the deceased- Prabhudas was, “Acute renal failure, secondary to rhabdomyolysis with uremia with cardio respiratory arrest.” 7.2.1 Dr. Pandya-PW-23 was cross-examined, at length. In his cross-examination, PW-23 conceded that myoglobin test of the deceased-Prabhudas was not done. PW-23 also conceded that rhabdomyolysis could be caused due to viral or bacterial infection or sun stroke. PW-23, however, voluntarily submitted that possibility of the same is rare. 7.3 Dr. Satish Kaalele-PW-24, in his examination-inchief, stated that the dead-body of Prabhudas was brought before him on 18.11.1990 and the post-mortem was conducted by a panel of doctors, which included PW-24, himself, and Dr. PW-23, however, voluntarily submitted that possibility of the same is rare. 7.3 Dr. Satish Kaalele-PW-24, in his examination-inchief, stated that the dead-body of Prabhudas was brought before him on 18.11.1990 and the post-mortem was conducted by a panel of doctors, which included PW-24, himself, and Dr. Mangal. According to PW-23, no visible injury mark found on the internal examination of the dead-body of Prabhudas. 7.3.1 PW-24, further, stated that the exact cause of death was kept pending for want of reports of (1) Histopathological report of tissues, (2) report of the liquid collected from the cavity of the stomach and (3) chemical analysis report of viscera. 7.3.2 PW-24 stated that, after receiving the aforesaid reports on 18.02.1991, he had given the final cause of death, “Acute renal failure, as a result of rhabdomyolysis.” 7.3.3 According to PW-24, acute renal failure could occur due to damage caused to the kidney, on account of excess stress. PW-24, further, stated that, if, excessive sit-ups are done or a person is made to crawl on knee and elbows, then, the same may lead to damage to kidneys. PW-24 also stated that the injuries found by him on the thighs and soles (i.e. of the deceased-Prabhudas) could be caused by stick and that such injuries can adversely affect the kidneys. It was also stated by PW-24 that during the course of PM, he neither notice any broken muscles or tissue nor did he found any swelling or old injury on the body of the deceased-Prabhudas. 7.3.4 From the depositions of Pws- 23 and 24, it is revealed that both of them have specifically stated that the cause of death of Prabhudas was acute renal failure, as a result of rhabdomyolysis. Thus, there is sufficient material on record to prove the cause of death of the deceased-Prabhudas. 7.3.5 Now, so far as the contention raised on behalf of the applicant that, as the evidence of both the aforesaid witnesses, i.e. Pws-23 and 24, are not sufficient to arrive at the exact cause of death of the deceased-Prbhudas, there is a need to examine Dr. M. Narayana Reddy as an expert or additional defence witness, is concerned, it would be relevant to refer to the provisions of Section 391 of the Code, which read thus; “391. Appellate Court may take further evidence or direct it to be taken. M. Narayana Reddy as an expert or additional defence witness, is concerned, it would be relevant to refer to the provisions of Section 391 of the Code, which read thus; “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 inquiry.” 7.3.5.1 From a plain reading of the aforesaid provision of law, it is clear that, at the time of dealing with an appeal filed under Chapter-XXIX of the Code, the appellate Court, if, is of the opinion that recording of the additional evidence is necessary, then, after recording the reasons for the same in writing, either the appellate Court may, itself, proceed to record such evidence or it may direct that such evidence be recorded by the concerned trial Court. Thus, the aforesaid provisions empower the appellate Court to either record the fresh evidence by itself or to direct a sub-ordinate or the trial Court concerned to record the same. 7.4 Now, coming to the decision in the case of ‘STATE OF GUJARAT VS. MOHANLAL JITAMALJI PORWAL & ANOTHER’ (Supra) and relied on by the learned Advocate, Mr. Shah, the Apex Court, has observed at Paragraph-5 thereof, thus; “5. The next question which arises is as regards the request made by the learned Assistant Public Prosecutor for adducing additional evidence in order to prove letter Ex. 26 received from the Mint Master certifying that the article in question was made of gold of the purity of 99.60. Shah, the Apex Court, has observed at Paragraph-5 thereof, thus; “5. The next question which arises is as regards the request made by the learned Assistant Public Prosecutor for adducing additional evidence in order to prove letter Ex. 26 received from the Mint Master certifying that the article in question was made of gold of the purity of 99.60. The request was made in order to invoke the powers of the Court under Section 391 of the CrPC, 1973, which inter alia provides that in dealing with any appeal under Chapter XXIX the appeal court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself or ask it to be taken by a Magistrate. The High Court rejected the prayer on the ground that it did not consider it "expedient in the interests of justice to open a new vista of evidence" in view of the fact that the offence had taken place six years back. 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. 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. 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. The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. The Community or the State is not a person-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 books. 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. The High Court was therefore altogether unjustified in rejecting the application made by the learned Assistant Public Prosecutor invoking the powers of the Court under Section 391 of the CrPC. We are of the opinion that the application should have been granted in the facts and circumstances of the case with the end in view to do full and true justice. The application made by the learned Assistant Public Prosecutor is therefore granted. The High Court will issue appropriate directions for the recording of the evidence to prove the report of the Mint Master under Section 391 Cr.P.C. when the matter goes back to High Court and is listed for directions. The appeal is therefore allowed. The order of acquittal is set aside. The matter is remitted to the High Court for proceeding further in accordance with law in the light of the abovesaid directions.” 7.4.1 From a perusal of the aforesaid observations made by the Apex Court,it becomes clear that the Apex Court set aside the order of the High Court only on the ground that the High Court had rejected the application of the prosecution, filed under Section 391 of the Code, for adducing additional evidence on the ground that the period of six years had elapsed from the date of offence. Hence, this decision would not help the applicant in any manner. 7.5 So far as the decision of the Apex Court in the case of ‘ZAHIRA HABIBULLA H. SHEIKH & ANOTHER VS. Hence, this decision would not help the applicant in any manner. 7.5 So far as the decision of the Apex Court in the case of ‘ZAHIRA HABIBULLA H. SHEIKH & ANOTHER VS. STATE OF GUJARAT & ANOTHER’ (Supra), relied on by the applicant is concerned, the Apex Court has observed as under at Paragraphs- 28, 35, 36, 47, 48, 49, 52, 53, 54, 55, 58 and 59; “28.In essence three points were urged by Mr. Tulsi. They are as follows: For the purpose of exercise of power under Section 391 of the Code, the Court has to come to a conclusion about the necessity for additional evidence which only could be done after examining evidence on record. In other words the Court must arrive at a conclusion that the existing material is insufficient for the purpose of arriving at a just decision. XXX XXX XXX 35. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators. 36. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning Nelson's eyes to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial. XXX XXX XXX 47. Section 391 of the Code is another salutary provision which clothes the Courts with the power to effectively decide an appeal. Though Section 386 envisages the normal and ordinary manner and method of disposal of an appeal, yet it does not and cannot be said to exhaustively enumerate the modes by which alone the Court can deal with an appeal. Section 391 of the Code is another salutary provision which clothes the Courts with the power to effectively decide an appeal. Though Section 386 envisages the normal and ordinary manner and method of disposal of an appeal, yet it does not and cannot be said to exhaustively enumerate the modes by which alone the Court can deal with an appeal. Section 391 is one such exception to the ordinary rule and if the appellate Court considers additional evidence to be necessary, the provisions in Section 386 and Section 391 have to be harmoniously considered to enable the appeal to be considered and disposed of also in the light of the additional evidence as well. For this purpose it is open to the appellate Court to call for further evidence before the appeal is disposed of. 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 that the accused persons may also be given a chance of adducing further evidence. 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, specially 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 primary object of Section 391 is the prevention of guilty man's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the Court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable. 48. 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 and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391. 49. There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the Section are only to be invoked when formal proof for the prosecution is necessary. 49. There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the Section are only to be invoked when formal proof for the prosecution is necessary. If the appellate Court thinks that it is necessary in the interest of justice to take additional evidence it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of the discretion of the appellate Court. As re-iterated supra the 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. XXX XXX XXX 52. Whether a retrial under Section 386 or taking up of additional evidence under Section 391 is the proper procedure will depend on the facts and circumstances of each case for which no straight-jacket formula of universal and invariable application can be formulated. 53. In the ultimate analysis whether it is a case covered by Section 386 or Section 391 of the Code the underlying object which the Court must keep in view is the very reasons for which the Courts exist i.e. to find out the truth and dispense justice impartially and ensure also that the very process of Courts are not employed or utilized in a manner which give room to unfairness or lend themselves to be used as instruments of oppression and injustice. 54. Though justice is depicted to be blind-folded, as popularly said, it is only a veil not to see who the party before it is while pronouncing judgment on the cause brought before it by enforcing law and administer justice and not to ignore or turn the mind/attention of the Court away from the truth of the cause or lis before it, in disregard of its duty to prevent miscarriage of justice. When an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inaction or lethargic action of Courts and erode in stages faith inbuilt in judicial system ultimately destroying the very justice delivery system of the country itself. Doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulative red herrings. 55. The Courts at the expense of repetition we may state, exist for doing justice to the persons who are affected. The Trial/First Appellate Courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The Court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e. to render justice, in a case where the role of the prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself. XXX XXX XXX 58. Though it was emphasised with great vehemence by Mr. Sushil Kumar and Mr. KTS Tulsi that the High Court dealt with the application under Section 391 of the Code in detail and not perfunctorily as contended by learned counsel for the appellants; we find that nowhere the High Court has effectively dealt with the application under Section 391 as a part of the exercise to deal with and dispose of the appeal. In fact the High Court dealt with it practically in one paragraph, i.e. Paragraph 36 of the judgment accepting the stand of learned counsel for the accused that the consideration of the appeal has to be limited to the records sent up under Section 385(2) of the Code for disposal of the appeal under Section 386. This perception of the powers of the appellate Court and misgivings as to the manner of disposal of an appeal per se vitiates the decision rendered by the High Court. This perception of the powers of the appellate Court and misgivings as to the manner of disposal of an appeal per se vitiates the decision rendered by the High Court. Section 386 of the Code deals with the manner and disposal of the appeal in the normal or ordinary course. Section 391 is in the nature of exception to Section 386. As was observed in Rambhau's case (supra) if the stand of learned counsel for the accused as was accepted by the High Court is maintained, it would mean that Section 391 of the Code would be a dead letter in the statute book. The necessity for additional evidence arises when the Court feels that some evidence which ought to have been before it is not there or that some evidence has been left out or erroneously brought in. In all cases it cannot be laid down as a rule of universal application that the Court has to first find out whether the evidence already on record is sufficient. The nature and quality of the evidence on record is also relevant. If the evidence already on record is shown or found to be tainted, tailored to suit or help a particular party or side and the real truth has not and could not have been spoken or brought forth during trial, it would constitute merely an exercise in futility, if it considered first whether the evidence already on record is sufficient to dispose of the appeals. Disposal of appeal does not mean disposal for statistical purposes but effective and real disposal to achieve the object of any trial. The exercise has to be taken up together. It is not that the Court has to be satisfied that the additional evidence would be necessary for rendering a verdict different from what was rendered by the trial Court. In a given case even after assessing the additional evidence, the High Court can maintain the verdict of the trial Court and similarly the High Court on consideration of the additional evidence can upset the trial Court's verdict. It all depends upon the relevance and acceptability of the additional evidence and its qualitative worth in deciding the guilt or innocence of the accused. 59. Merely because the High Court permits additional evidence to be adduced, it does not necessarily lead to the conclusion that the judgment of the trial Court was wrong. It all depends upon the relevance and acceptability of the additional evidence and its qualitative worth in deciding the guilt or innocence of the accused. 59. Merely because the High Court permits additional evidence to be adduced, it does not necessarily lead to the conclusion that the judgment of the trial Court was wrong. That decision has to be arrived at after assessing the evidence that was before the Trial Court and the additional evidence permitted to be adduced. The High Court has observed that question of accepting application for additional evidence will be dealt with separately, and in fact dealt with it in a cryptic manner practically in one paragraph and did not think it necessary to accept the additional evidence. But at the same time made threadbare analysis of the affidavits as if it had accepted it as additional evidence and was testing its acceptability. Even the conclusions arrived at with reference to those affidavits do not appear to be correct and seem to suffer from apparent judicial obstinacy and avowed determination to reject it. For example, to brand a person as not truthful because a different statement was given before the trial Court unmindful of the earliest statement given during investigation and the reasons urged for turning hostile before Court negates the legislative intent and purpose of incorporating Section 391 in the Code. The question of admission of evidence initially or as additional evidence under Section 391 is distinct from the efficacy, reliability and its acceptability for consideration of claims in the appeal on merits. It is only after admission, the Court should consider in each case whether on account of earlier contradiction before Court and the testimony allowed to be given as additional evidence, which of them or any one part or parts of the depositions are creditworthy and acceptable, after a comparative analysis and consideration of the probabilities and probative value of the materials for adjudging the truth. To reject it merely because of contradiction and that too in a sensitised case like the one before Court with a horror and terror oriented history of its own would amount to conspicuous omission and deliberate dereliction of discharging functions judiciously and with a justice-orientated mission. To reject it merely because of contradiction and that too in a sensitised case like the one before Court with a horror and terror oriented history of its own would amount to conspicuous omission and deliberate dereliction of discharging functions judiciously and with a justice-orientated mission. In a given case when the Court is satisfied that for reasons on record the witness had not stated truthfully before the trial Court and was willing to speak the truth before it, the power under Section 391 of the Code is to be exercised. It is to be noted at this stage that it is not the prosecution which alone can file an application under Section 391 of the Code. It can also be done, in an appropriate case by the accused to prove his innocence. Therefore, any approach without pragmatic consideration defeats the very purpose for which Section 391 of the Code has been enacted. Certain observations of the High Court like, that if the accused persons were really guilty they would not have waited for long to commit offences or that they would have killed the victims in the night taking advantage of the darkness and/or that the accused persons had saved some persons belonging to the other community were not only immaterial for the purpose of adjudication of application for additional evidence but such surmises could have been carefully avoided at least in order to observe and maintain the judicial calm and detachment required of the learned Judges in the High Court. The conclusions of the High Court that 65 to 70 persons belonging to the attacked community were saved by the accused or others appears to be based on the evidence of the relatives of the accused who were surprisingly examined by prosecution. We shall deal with the propriety of examining such persons, infra. These aspects could have been, if at all permissible to be done, considered after accepting the prayer for additional evidence. It is not known as to what extent these irrelevant materials have influenced the ultimate judgment of the High Court, in coming with such a strong and special plea in favour of a prosecuting agency which has miserably failed to demonstrate any credibility by its course of action. The entire approach of the High Court suffers from serious infirmities, its conclusions lopsided and lacks proper or judicious application of mind. The entire approach of the High Court suffers from serious infirmities, its conclusions lopsided and lacks proper or judicious application of mind. Arbitrariness is found writ large on the approach as well as the conclusions arrived at in the judgment under challenge, in unreasonably keeping out relevant evidence from being brought on record.” 7.5.1 From the aforesaid decision, it can be said that for the purpose of exercising the powers under Section 391 of the Code, the Court has to come to a conclusion about the necessity for additional evidence, which only can be done after examining the evidence on record. The Court must arrive at a conclusion that the existing material is insufficient for the purpose of arriving at a just decision. However, 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 of the Code. 7.5.2 In the aforesaid case, the Apex Court has also observed, in no unambiguous terms, that Section 391 of the Code does not confer on any party any right to examine, cross-examine and re-examine any witness. Hence, this decision also shall not render any assistance to the case of the applicant. 7.6 In the case of ‘NATASHA SINGH’ (Supra), which is relied on by the learned Advocate for the applicant, the Apex Court has held as follows at Paragraphs-8, 15, 19 and 20; “8. Section 311 Cr.P.C. empowers the court to summon a material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under the Cr.P.C., or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the Cr.P.C. has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case. XXX XXX XXX 15. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as ‘any Court’, ‘at any stage”, or ‘or any enquiry, trial or other proceedings’, ‘any person’ and ‘any such person’ clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case. XX X XXX XXX 19. The Trial Court, while entertaining the application filed under Section 311 Cr.P.C., had asked the appellant to provide a brief summary of the nature of evidence that would be provided by the defence witnesses mentioned in the application, and in keeping with this, the appellant had furnished an application stating that the appellant wished to examine one Shri B.B. Sharma who was one of the panchnama witnesses, and who the prosecution had neither listed nor examined in court. Therefore, the appellant wished to examine him in defence. The second person was Shri S.S. Batra, Company Secretary of the appellant, as he was the best person to provide greater details of the company of which the appellant is the Director. The third witness was a hand-writing expert, and it was necessary for the defence to examine him regarding the correctness of the signatures of the appellant and others, particularly with respect to the signatures of the appellant. 20. Undoubtedly, an application filed under Section 311 Cr.P.C. must be allowed if fresh evidence is being produced to facilitate a just decision, however, in the instant case, the learned Trial Court prejudged the evidence of the witness sought to be examined by the appellant, and thereby cause grave and material prejudice to the appellant as regards her defence, which tantamounts to a flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions of Section 311 Cr.P.C. By doing so, the Trial Court reached the conclusion that the production of such evidence by the defence was not essential to facilitate a just decision of the case. Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate a just and proper decision of the case. Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate a just and proper decision of the case. The examination of the hand-writing expert may therefore be necessary to rebut the evidence of Rabi Lal Thapa (PW.40), and a request made for his examination ought not to have been rejected on the sole ground that the opinion of the handwriting expert would not be conclusive. In such a situation, the only issue that ought to have been considered by the courts below, is whether the evidence proposed to be adduced was relevant or not. Identical is the position regarding the panchnama witness, and the court is justified in weighing evidence, only and only once the same has been laid before it and brought on record. Mr. B.B. Sharma, thus, may be in a position to depose with respect to whether the documents alleged to have been found, or to have been seized, were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating a just decision of the case.” 7.6.1 In the aforesaid matter, the trial Court rejected the application filed by the appellant, under Section 311 of the Code, on the ground that the witnesses sought to be examined by the appellant-accused is not necessary, as the same would render no assistance in arriving at a just decision in the matter. When the order of the trial Court was challenged, the High Court confirmed the same. 7.6.1.1 It was in these peculiar facts, the Apex Court made the aforesaid observations. In the case on hand, the facts are totally different and therefore, this decision shall also not help the case of the applicant. 7.7 In the case of ‘ASIM @ MUNMUN @ ASIF ABDULKARIM SOLANKI’ (Supra), relied on by the learned Advocate, Mr. Shah, appearing for the applicant, the Apex Court has observed as under at Paragraph-3; “3. Section 391 of the Cr.P.C. does not impose any restriction as to when the application filed for adducing additional evidence should be heard by the High Court. Shah, appearing for the applicant, the Apex Court has observed as under at Paragraph-3; “3. Section 391 of the Cr.P.C. does not impose any restriction as to when the application filed for adducing additional evidence should be heard by the High Court. In fact, we are of the opinion that it is desirable that an application filed under Section 391 should be heard immediately after it is filed without waiting for the appeal to be finally heard.” 7.7.1 From the aforesaid observations made by the Hon’ble Apex Court, it can be said that the application filed under Section 391 of the Code should be heard, immediately. Even, without waiting for the appeal to be finally heard. 7.7.2 In the present case, the applicant has preferred the appeal against conviction in the year 2019, whereas, the present application is filed only on 26.07.2022. 7.8 Here, it would be relevant to refer to the observations made by the Apex Court, at Paragraph-9, in the case of ‘ESHWARAIAH AND ANOTHER’ (Supra), on which the reliance is placed on by the learned Sr. Advocate, Mr. Panchal, and which reads as follows; “9. After giving our anxious consideration to the facts and circumstances of the case and the arguments advanced by the learned Counsel for the appellant, it appears to us that the order of acquittal passed by the learned Sessions Judge was not at all justified and the same was not consistent with the evidence adduced in the case. The High Court, in our view, has given very good reasons for accepting the evidence adduced in the case including the evidences of P.W. 5 and P.W. 6. It has been clearly established from the evidences adduced o behalf of the prosecution that shortly before the death of Ramesh, both the accused entered the house at dead of night and both of them had witnessed a cinema show and came to the house. It is an admitted position that accused No. 2 was the mistress of the deceased and she used to visit the house of the deceased frequently at night. It has been established from the evidence in the case that the accused No. 2 tapped the door which was opened by Ramesh and she entered the house and the accused No. 1 who had also come with accused No, 2 and was waiting just at a little distance had also entered the house. It has been established from the evidence in the case that the accused No. 2 tapped the door which was opened by Ramesh and she entered the house and the accused No. 1 who had also come with accused No, 2 and was waiting just at a little distance had also entered the house. When the door was broken open by the neighbours and the relations, the deceased was found lying dead in the kitchen and under the cot in the bed room of the deceased, both the accused persons were hiding. Despite tapping the door repeatedly by the neighbours and the relations of the deceased the accused persons who were inside the house did not open the same and the door had to be broken. It may be noted that both the accused had not given any explanation as to why both of them were present in the house at that late hours in the night. On the contrary, they had taken a bold plea that both of them had been picked up from their respective house. The learned Sessions Judge has devoted much of his attention in considering the expert opinion as to the cause of the death and he preferred to accept the expert opinion of the doctor examined by the accused namely DW.1. In our view, the High Court has lightly held that the said doctor had no occasion to see the dead body and the injuries on the person of the dead body and only from the report of the post mortem the said doctor gave an expert opinion. On the contrary, two doctors who had held the post mortem on the deceased had occasions to look and examine the injuries on the person of the deceased and they had given a clear opinion that the death was due to asphyxia and it was a case of homicidal death. We agree with the High Court in accepting prosecution case that it was a case of homicidal death. We agree with the High Court in accepting prosecution case that it was a case of homicidal death. When shortly before the death of the deceased both the accused had entered the house and it was bolted from inside and they did not open the door despite tapping on several times and the door had to be broken by the neighbours and the relations and both the accused were found hiding under the cot in the bed room of the deceased and Ramesh was lying dead with injuries on his person, the accused had an obligation to explain their presence and the circumstances under which Ramesh had died. But they did not give any explanation whatsoever, On the contrary, they tried to set up a false plea of their presence in respective house. The High Court, in our view, has rightly rejected the suggestion given by the accused that it was a case of natural death on account of epileptics fit. If the deceased had suffered from epileptics fit which ultimately caused his death, the accused particularly the accused No. 2 ought to have called the neighbours for help or at least should have answered to their call when they tapped the door and should have requested the neighbours to render any help to the deceased. The High Court, in our view, has rightly observed that the Turkish towel with blood stains could not have been found at a little distance from the dead body if the deceased had met natural death, In an epileptics lit, the blood was not expected to be found in that way and in any event, there was no occasion to wipe the same and throw it away by the person who was under epiliptic fit. Though the group of the blood found on the wearing apparel of the accused No. 1 was not established as that of the blood group of the deceased but the presence of the blood on the wearing apparel has not been explained in any manner by the accused, It is not the case of the accused that when accused had tapped the door of Ramesh, some one else had opened the door. Hence, it must be reasonably accepted that Ramesh opened the door and he was alive. Hence, it must be reasonably accepted that Ramesh opened the door and he was alive. Hence he had met his death in the presence of the accused in a house which was bolted from inside thereby preventing any one else to enter the house at the time of his death. Since the murder of Ramesh has been established in presence of both the accused, the accused are required to explain such murder. It is true that in a case which is to be established by circumstantial evidence, the circumstances must be very closely scrutinised and all the circumstances must form an unbroken chain which would establish the guilt of the accused and the case of prosecution should not lie in the realm of surmise and conjecture even if the facts and circumstances are very intriguing raising serious suspicion. In the instant case, as rightly analysed by the High Court, the circumstances have formed a complete chain which clearly point out the complicity of the accused in causing the murder and no other conclusion suggesting innocence of the accused appears to be reasonable or justified. Although, the prosecution could not lead any evidence as to who had actually smothered the deceased but since both of them were present at the time of commission of the offence, the conviction under Section 302 read with Section 34 is warranted against both the accused. We, therefore, find no reason to interfere with the decision of the High Court and the instant appeal, therefore, fails and is dismissed. If the appellants are on bail, they should be taken into custody to serve out the sentence.” 7.8.1 If, the aforesaid observations made and the principle of law laid down by the Apex Court in the above decision are carefully read, it would extend support to the arguments or the submissions made on behalf of the prosecution that the present application made by the applicant cannot be or does not require to be granted for the simple reason that the so called expert, i.e. Dr. M. Narayana Reddy, whom the applicant seeks to examine as an additional evidence, had no occasion to either see or examine the dead-body of late Prabhudas and he has merely based his opinion on the basis of the medical papers, x-rays and reports etc. of the deceased-Prabhudas. M. Narayana Reddy, whom the applicant seeks to examine as an additional evidence, had no occasion to either see or examine the dead-body of late Prabhudas and he has merely based his opinion on the basis of the medical papers, x-rays and reports etc. of the deceased-Prabhudas. In fact, the observations made by the Apex Court would buttress the submissions made on behalf of the prosecution that, since, the prosecution has produced sufficient medical evidence, oral, i.e. by way of examination of Dr. Pandya-PW-23, who had given treatment to the deceased-Prabhudas at N.M. Virani Hospital, Rajkot, and Dr. Satish-PW-24, who had carried out the PM of the deceased-Prabhudas as well as the documentary evidences, in the form of PM note, medical papers of the deceased-Prabhudas etc., this application deserves to be dismissed. 7.9 Thus, keeping in mind the observations made by the Apex Court in the above referred decisions, relied on by the learned Counsels for the parties, with regard to the provisions of Section 391 of the Code, if, the facts of the case on hand are seen, it would reveal that the prosecution has produced sufficient oral and the documentary evidences to prove the exact cause of death of the deceased- Prabhudas. Now, the aspect, whether, on the basis of the said evidence the trial Court has rightly passed the judgment and order of conviction, can be determined, while appreciating the evidence, at the time of final hearing of the appeal. Suffice, at this stage, it would be to observe that the present application filed by the applicant does not deserve to be entertained. 8. At this stage, it would be necessary to note the conduct of the present applicant during the course of trial as well as pending the appeal. 8.1 In the instant case, the alleged offence took place in the year 1990, whereas, the trial Court passed the judgment and order of conviction on 20.06.2019. From the record, it is revealed that pending trial, present applicant filed a number of applications. 8.2 During the course of trial, as is evident from the record, the prosecution filed the pursis, closing its evidence on 12.02.2019 and immediately thereafter, i.e. on 16.02.2019, the present application gave an application for transfer of the case to another Court. From the record, it is revealed that pending trial, present applicant filed a number of applications. 8.2 During the course of trial, as is evident from the record, the prosecution filed the pursis, closing its evidence on 12.02.2019 and immediately thereafter, i.e. on 16.02.2019, the present application gave an application for transfer of the case to another Court. 8.3 Thereafter, as stated by the applicant, himself, in the present application, he gave an application under Section 311 of the Code below Exhibit-830 and requested the trial Court to permit him to examine (1) Mr. P.P. Pandey, (2) Mr. H.P. Singh, and (3) Mr. T.S. Bisht and other witnesses, which was rejected by the trial Court. 8.3.1 Being aggrieved with the same, the applicant approached this Court vide Special Criminal Application No. 4115 of 2019 and this Court allowed the same vide order dated 16.04.2019, permitting the applicant to examine the witnesses, mentioned in Annexure-Z to the said application. While so ordering, this Court also directed the prosecuting agency to see that no delay is caused in the examination of the witnesses. 8.3.2 Pursuant to the directions issued by this Court, when the trial Court called the witnesses for examination, as mentioned in Annexure-Z to the aforesaid application, the applicant voluntarily dropped them one by one and did not examine a single witness in his defence. 8.3.3 From the record, it is also revealed that the original complainant as well as the applicant, herein, had challenged the order of this Court dated 16.04.2019 before the Apex Court, by filing SLP (Criminal) No. 4993 of 2019 and SLP (Criminal) No. 5234 of 2019, respectively. 8.3.4 The SLP filed by the original complainant came to be disposed by the Apex Court vide order dated 24.05.2019, wherein, the Apex Court took note of the various applications filed at the behest of the present applicant and the orders as well as the strictures passed by this Court against the present applicant and directed as under; “In view of the of the aforesaid, we direct the Trial Court not to delay the case any more in any manner whatsoever and not to entertain unnecessary applications delaying the decision of the case. Let the trial be concluded positively by 20.06.2019. Let the trial be concluded positively by 20.06.2019. No dilatory tactics b e permitted to be adopted by any party in any manner whatsoever.” 8.3.5 In spite of the clear directions issued by the Apex Court and the observations made, as above, the applicant went on submitting various applications before the trial Court concerned, including the application dated 11.06.2019, i.e. the application to examine Dr. M. Narayana Reddy as an additional evidence. 8.3.6 It is pertinent to note that the applicant had also preferred Review Petition (Criminal) No. 361 of 2021, against the order dated 24.05.2019 passed by the Apex Court in SLP (Criminal) No. 4993 of 2019. However, the Review petition also came to be dismissed by the Apex Court vide order dated 21.07.2022. 8.3.7 Here, it may be noted that in the matter of co-convict, the Apex Court vide order dated 20.08.2020, has directed that the appeal filed by him along with the other appeals be concluded preferably by July, 2021. 8.3.8 The note of the fact may also be taken that the appeals filed by the present applicant as well as the co-convicts are listed a number of times, but, the same could not be heard, as the request for adjournments were made from time-to-time on their behalf. Now, at this belated stage, the applicant filed the present application on 26.07.2022 for adducing additional evidence. 8.3.9 It is also relevant to note that the Special Leave Petition (Criminal) Diary No. 2028 of 2020 filed by the present applicant, against the order of this Court rejecting his application for suspension of sentence, is recently disposed of by the Apex Court vide order dated 03.08.2022. 8.4 At this stage, it would be also relevant to refer to the affidavit filed by the so called expert, i.e. Dr. M. Narayana Reddy through the applicant. 8.4.1 This Court, in fact, did not permit the applicant to file such an affidavit, however, since, the same was referred to and extensively relied on by the learned Advocate, Mr. Shah, this Court took into consideration the same, as well. 8.4.2 The so called expert, Dr. M. Narayana Reddy, in Paragraph-2, of his affidavit has stated that; “At the requisition of Shri Shantanu Sanjiv Bhatt through his letter dated 05.06.2019, I submitted my Medico-legal Expert opinion dated 08.06.2019 in this case, for submission before the Learned Sessions Judge. Shah, this Court took into consideration the same, as well. 8.4.2 The so called expert, Dr. M. Narayana Reddy, in Paragraph-2, of his affidavit has stated that; “At the requisition of Shri Shantanu Sanjiv Bhatt through his letter dated 05.06.2019, I submitted my Medico-legal Expert opinion dated 08.06.2019 in this case, for submission before the Learned Sessions Judge. This opinion was based on the documents: (1) Post-Mortem Examination Report; (2) Final Opinion about the cause of death of the deceased as per the team of doctors that conducted the Post-Mortem Examination; (3) Histopathology Report; (4) Reply dated 06.04.1991, by the doctors that conducted the Post-Mortem Examination; (5) Reply dated 04.09.1991 by Dr. H. Trivedi, Director of the Institute of Kidney Diseases & Research Center, Ahmedabad, and the Professor of Post-Graduate Training Center, Ahmedabad and the Professor of Post-Graduate Training Center for Nephrology & Urology, B.J. Medical College and Civil Hospital, Ahmedabad to Shri. P.P. Pandey, Police Officer (E), C.I.D. Crime, Government of Gujarat, Ahmedabad; (6) Wound Certificate of Prabhudas Madhavji and (7) the Hospital Case of the Navalben Manilal Virani General Hospital, Rajkot, in relation to the patient (deceased), Prabhudas Madhavji.” 8.4.3 Thus, from the above facts mentioned in the affidavit of Dr. M. Narayana Reddy, it becomes clear that he had prepared his report or opinion on 08.06.2019 to be produced before the trial Court, concerned. However, from a perusal of the record of the trial Court, it is revealed that no such opinion or affidavit dated 08.06.2019 is forming the part, thereof. When, the learned Advocate, Mr. Shah, appearing for the applicant was inquired about the said aspect, he also fairly conceded that he has not received the opinion or report dated 08.06.2019. Thus, it remains a mystery as to on what basis, Dr. Reddy has stated in Paragraph-2 of his report / opinion, as noted above, that upon the request of Shri. Shantanu Sanjiv Bhatt through his letter dated 05.06.2019, I had submitted my Medico-legal Expert Opinion dated 08.06.2019 in this case, for submission before the learned Sessions Judge. 8.4.4 In the affidavit filed by Dr. M. Narayana Reddy, he has narrated, as to how the alleged incident took place and what was the case of the prosecution before the trial Court. 8.4.4 In the affidavit filed by Dr. M. Narayana Reddy, he has narrated, as to how the alleged incident took place and what was the case of the prosecution before the trial Court. He also has discussed the depositions of some of the witnesses, especially, the doctors, who had given the treatment to the deceased and injured witnesses and who had carried out the PM of the body of the deceased- Prabhudas. Further, from a perusal of the entire affidavit filed by Dr. M. Narayana Reddy, it nowhere reveals, as to whether, he had been supplied the Paper Book or not. Moreover, Dr. M. Narayana Reddy, in his affidavit, is totally silent on the aspect, as to whether, he himself has come across or dealt with any case of rhabdomyolysis or not. Dr. Reddy is also totally silent on the aspect, in his report, as to whether, he has done any PM or not. Thus, from the affidavit filed by Dr. M. Narayana Reddy it is not becoming clear, as to on what basis, he has given his report or opinion. Rather, the affidavit gives an impression that Dr. M. Narayana Reddy has based his opinion or report merely on the basis of certain books. 8.4.5 At this stage, it would also be relevant to take note of the language used by Dr. Reddy in his affidavit about the prosecution witnesses so also the trial Court, itself. In Paragraphs-5, 10 and 14 under the heading ‘My Comments as a Medico-legal Expert’, Dr. Reddy has stated that; “5. The eyes cannot see what the mind does not know. From the above information it is very clear that neither Dr. H.M. Mangal nor Dr. S.D. Kaele, that conducted the postmortem examination in this case, had any opportunity to gain knowledge about ‘Rhabdomyolysis’ in those days. XXX XXX XXX 10. The opinion that it was case of death due to ”acute renal failure as a result of rhabdomyolysis” was not a reasoned and reasonable opinion of that of the doctors, Dr. H.M. Mangal and Dr. S.D. Kalele. They simply copied that opinion from the hospital case-sheet, without knowing what it is. There are no positive findings noted at the time of postmortem examination that supports this cause of death.” 8.4.6 Some of the comments made by Dr. Reddy in the foregoing paragraphs not only are unwarranted but also very harsh. H.M. Mangal and Dr. S.D. Kalele. They simply copied that opinion from the hospital case-sheet, without knowing what it is. There are no positive findings noted at the time of postmortem examination that supports this cause of death.” 8.4.6 Some of the comments made by Dr. Reddy in the foregoing paragraphs not only are unwarranted but also very harsh. 8.4.7 As noted herein above, Dr. Reddy does not disclose, as to whether, he has any experience of carrying out PM or not and more particularly, in the facts of the present case, where, he even had no occasion to either see or examine the body of the deceased-Prabhudas, he has stated as under at Paragraphs-14, 15 & 22; “14. It is very clear that at the time when the doctors, who treated the deceased, Prabhudas Madhavji Vaishnani as patient in the Navalben Manilal Virani Hospital, Rajkot, only heard about the term, ‘Rhabdomyolysis’, without having the basic as to how the ‘Rhabdomyolysis’ can cause ‘Acute Renal Failure’. 15. The doctor who certified the cause death was Dr. J.A. Gajera. He was not a specialist doctor. He was only a basic M.B.B.S. doctor. He certified that it was case of death due to ““ACUTE RENAL FAILURE, SECONDARY TO RHABDOMYOLYSIS WITH UREMIA WITH CARDIO RESPIRATORY ARREST. XXX XXX XXX 22. The prosecution witness no. 23 Dr. Sanjay Natvarlal Pandya completed his court of study in Institute of Kidney Disease and Research Centre, Ahmedabad, in 1989. The deceased Prabhudas Madhavji Vaishnavi was treated, as the patient by him from 12.11.1990 to 18.11.1990. Hence, he was not qualified to be certified as the expert in the field of his study for want of adequate practical experience.” 8.4.8 Last but not the least, Dr. Reddy has not even spared the learned Judge, who conducted the trial in the matter, and at Paragraph-21 has stated as under; “21. While making such observation the learned judge did not apply his mind to know who the Scientific Expert is. To be called a Scientific Expert mere possession the degrees awarded by the Universities / Institutions is not sufficient. ...” 8.4.9 The comments made by Dr. Reddy with regard to the qualifications and experience of the doctors connected to this case are also unwarranted and require to be deprecated. 8.4.10 In view of the above, this Court is of the considered opinion that such an affidavit filed by Dr. ...” 8.4.9 The comments made by Dr. Reddy with regard to the qualifications and experience of the doctors connected to this case are also unwarranted and require to be deprecated. 8.4.10 In view of the above, this Court is of the considered opinion that such an affidavit filed by Dr. Reddy through the applicant is nothing but a clear attempt to overreach the process of law. No doubt, it is open to Dr. Reddy to give his report or opinion, pursuant to the request made on behalf of the applicant, but, it was totally uncalled for him to make comments on the qualifications and experience of the witnesses in this case as well as against the learned Judge, who conducted the trial in the matter. Hence, such an act on the part of Dr. Reddy requires to be viewed seriously. However, considering the fact that this is an application for adducing additional evidence in which the applicant has produced the aforesaid report or opinion in support of his case, we do not propose to delve into the said aspect any further. We hope that Dr. Reddy shall be more careful in future, while addressing the learned Judges or the Courts. 9. Thus, from the overall facts and circumstances of this case and in view of the discussion herein above, it can be said that the prosecution has produced sufficient material, oral as well as the documentary, on the record to prove the exact cause of death of the deceased-Prabhudas. So far as the aspect, whether, on the basis of such evidence, the trial Court has rightly passed the judgment and order of conviction, is concerned, the same can be decided only by examining the material on record, at the time of final hearing of the appeal. 9.1 Section 391 of the Code empowers a Court to record further evidence, while hearing an appeal under Chapter-XXIX of the Code, if, it is of the opinion that additional evidence is necessary for deciding the appeal. In the case on hand, the prosecution has successfully proved the cause of death of Prabhudas by way of depositions of Dr. Pandya-PW-23 and Dr. Satish-24, who have specifically stated that the cause of death of Prabhudas was acute renal failure, as a result of rhabdomyolysis. In the case on hand, the prosecution has successfully proved the cause of death of Prabhudas by way of depositions of Dr. Pandya-PW-23 and Dr. Satish-24, who have specifically stated that the cause of death of Prabhudas was acute renal failure, as a result of rhabdomyolysis. Thus, there being sufficient material on record to prove the cause of death of the deceased-Prabhudas, this Court is not inclined to exercise the powers under Section 391 of the Code in favour of the applicant. 9.1 Having, thus, heard the learned Counsels for the parties, at length, and having perused the material placed on record and for the detailed reasons given herein above, we are of the considered opinion that this application cannot be granted and deserves to be rejected. 10. Resultantly, this application fails and is REJECTED, accordingly. Rule is discharged.