Summary
Additional evidence necessary to decide a criminal appeal and prevent failure of justice could be admitted under Section 391 CrPC despite an earlier defence lapse. The trust deed and authorising resolution were foundational to assessing the accused trustee’s intent in the proposed land sale. Refusal based on delay and supposed mala fides was unsustainable. The documents and oral proof were permitted, without deciding the conviction appeal’s merits.
Issues
- Whether the appellate court should receive certified trust documents and oral proof under Section 391 CrPC after failure to prove them at trial.
Provisions considered
- Section 391, Code of Criminal Procedure, 1973The appellate court’s discretion served a just decision of the appeal; necessity depended on the circumstances and prevention of failure of justice, subject to sparing exercise and protection against prejudicial retrial. (¶¶ 12–16, 19–24)
Held
- Additional evidence need not be indispensable to pronouncing any judgment; it could be necessary to avoid failure of justice. The discretion was broad, to be exercised sparingly in suitable cases, without disguising a retrial or prejudicing the accused. (¶ 13–16)
- A photocopy of the trust deed was already on record and noticed at trial but not considered because it was not proved. The deed and resolution underlay the proposed sale and were relevant to determining criminal intention. The earlier failure of the appellant and counsel to prove them did not justify refusing necessary evidence. (¶¶ 17–20, 22)
- The appeal followed conviction immediately. Characterising the application as belated, malicious or designed for endless delay lacked support in these circumstances, particularly against the twelve years taken for prosecution evidence. A related acquittal based on proof of the same deed was also relevant context. (¶ 19–21)
- Omission of the word not in a typed clause was an inadvertent error, not deliberate deception, given that the certified deed was already filed. The additional-evidence applications were allowed and at least one witness was to prove the deed’s contents. (¶ 23–24)
Result
Appeal allowed; appellate court and High Court rejection orders set aside, and both Section 391 applications allowed. Appellant permitted oral proof through at least one witness; additional evidence to be completed within six months of production of the certified order, followed by expeditious decision of the criminal appeal.