# Uma Kant Yadav v. State Of U.P. & Anr - **Citation:** (2016) 8 ILRA 100 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-08-01 - **Bench:** Mrs. Vijay Lakshmi - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/uma-kant-yadav-v-state-of-u-p-anr-44106 - **Pages:** 5 ## Text 100 INDIAN LAW REPORTS ALLAHABAD SERIES (2016) 8 ILRA 100 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 01.08.2016 BEFORE THE HON'BLE MRS. VIJAY LAKSHMI, J. Application U/S 482 No.- 19576 Of 2013 Uma Kant Yadav ...Applicant Versus State Of U.P. & Anr. ...Opposite Parties Counsel for Applicant: R.P. Yadav Counsel for Opposite Parties: Government Advocate, Ajeet Singh Present application was filed with prayer to quash the order dated 29.5.2013 passed in Criminal Appeal No.15/12, (Umakant Yadav Vs. State of U.P. & Ors), by the learned Additional Session Judge, Court No.3 Jaunpur, whereby the learned Additional Session Judge has rejected the application moved by the applicant under Section 391 Cr.P.C. seeking permission to adduce additional evidence in appeal. The law regarding adducing of additional evidence in appeal has been well settled by Hon'ble Supreme Court in a catena of judgments in Ashok Tshering Bhutia Vs. State of Sikkim, 2011 (73) ACC 371, the Apex Court has held as under:- ""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". Court observed that The applicant had full opportunity and he was given sufficient time to adduce evidence and he had examined as many as four defence witnesses, but he did not make any such prayer before the trial court. The document i.e. the Certificate of Gram Pradhan, sought to be proved was available on record during trial, which is evident from the averment made in para 10 of the affidavit filed in support of present application wherein it is clearly mentioned that from the prosecution side, a number of documents were filed including the certificate dated 15.3.2009 issued by Phool Chandra Yadav, Gram Pradhan. Therefore, if the certified of Gram Pradhan was already available on record, there was no difficulty for the accused/applicant in moving an application before the trial court to summon its executor i.e. Gram Pradhan to prove it, but the applicant did not avail that opportunity. 8 All. Uma Kant Yadav Vs State Of U.P. & Anr. 101 The application being devoid of merit was rightly rejected by learned lower appellate court. Hence, this application is liable to be dismissed and is hereby dismissed. (Delivered by Hon'ble Mrs. Vijay Lakshmi, J.) 1. The applicant, by means of this application under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this court with prayer to quash the order dated 29.5.2013 passed in Criminal Appeal No.15/12, (Umakant Yadav Vs. State of U.P. & Ors), by the learned Additional Session Judge, Court No.3 Jaunpur, whereby the learned Additional Session Judge has rejected the application moved by the applicant under Section 391 Cr.P.C. seeking permission to adduce additional evidence in appeal. 2. Heard learned counsel for the applicants, learned A.G.A. and learned counsel for the O.P. No.2 and perused the records. 3. Some relevant background facts in brief are that the applicant was convicted by the learned trial court/Additional Chief Judicial Magisrate Ist, Jaunpur vide judgment and order dated 07.2.2012 under Sections 419,420,467,468,469,471 and 506 I.P.C. and was sentenced for rigorous Imprisonment under the aforesaid sections for various periods, the maximum being for 7 years under Section 471 with a fine of Rs. 5000/-. 4. Aggrieved by the aforesaid judgment, the applicant preferred criminal appeal no.15/12 in which he moved an application under Section 391 Cr.P.C. seeking permission to adduce additional evidence in appeal. 5. The learned trial court, after hearing both the parties, rejected the aforesaid application inter-alia on the ground that the applicant had full opportunity to lead evidence in his defence, during trial, but despite ample time and opportunity, the appellant did not avail it. More over, there was no document on the record, required to be proved by any witnesses sought to be summoned by the applicant. The learned trial court also observed that the applicant was trying to delay the proceedings of the case by repeatedly moving such kind of applications. 6. The legality and correctness of the aforesaid order has been challenged by the learned counsel for the applicant on the ground that the learned trial court did not consider his prayer and rejected his application without applying its mind to the facts and circumstances of the case. Learned counsel has submitted that from the prosecution side a number of documents were filed during trial including one paper No.14-Ka/6 which is a certificate dated 15.3.2009 issued by one Phool Chand Yadav, Gram Pradhan, having a photograph of a lady, with regard to whom, Phool Chandra Pradhan had certified that she is Geeta Devi w/o Harish Chandra Yadav who is very well known to him. However, when during trial, the said document was shown to defence witnesses DW-1 and DW-4, they stated that the photograph affixed on the said document was not of Geeta Devi but of one Smt. Suman, wife of Harish Chandra of Village Khobaria. 102 INDIAN LAW REPORTS ALLAHABAD SERIES 7. Learned counsel has submitted that the aforesaid document could not be duly proved due to non examination of its executor Phool Chandra Pradhan. Hence, he moved an application under Section 391 Cr.P.C. with prayer to summon Phool Chandra Yadav and wife of Harish Chandra as witnesses during appeal, but the court below illegally rejected his prayer in a mechanical way. 8. Per contra, learned A.G.A. has opposed the application on the ground that there is no illegality in the order impugned which is based on cogent and convincing reasons. 9. Considered the rival submissions made by both the learned counsels. 10. The law regarding adducing of additional evidence in appeal has been well settled by Hon'ble Supreme Court in a catena of judgments in Ashok Tshering Bhutia Vs. State of Sikkim, 2011 (73) ACC 371, the Apex Court has held as under:- "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. (Vide Rajeswar Prasad Misra v. State of West Bengal and another, 1965 (2) ACC 221, Ratilal Bhanji Mithani v. The State of Maharashtra & Ors; 1971 (8) ACC 148; Rambhau & Anr. v. State of Maharashtra, 2001 (42) ACC 1116, Anil Sharma & Ors. v. State of Jharkhand, AIR 2004 SC 2294, Zahira Habibulla H. Sheikh and another v. State of Gujarat and others; (2004) 4 SCC 158; and Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1. 11. In Rambhau & Anr. v. State of Maharashtra, 2001 (42) ACC 1116, a larger Bench of this Court held as under: "Incidentally, Section 391 Cr.P.C. 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 Cr.P.C. 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, section 391 is thus akin to Order XLI, Rule 27 of the C.P. Code." (Emphasis added)" 8 All. Uma Kant Yadav Vs State Of U.P. & Anr. 103 12. The applicant had full opportunity and he was given sufficient time to adduce evidence and he had examined as many as four defence witnesses, but he did not make any such prayer before the trial court. The document i.e. the Certificate of Gram Pradhan, sought to be proved was available on record during trial, which is evident from the averment made in para 10 of the affidavit filed in support of present application wherein it is clearly mentioned that from the prosecution side, a number of documents were filed including the certificate dated 15.3.2009 issued by Phool Chandra Yadav, Gram Pradhan. Therefore, if the certified of Gram Pradhan was already available on record, there was no difficulty for the accused/applicant in moving an application before the trial court to summon its executor i.e. Gram Pradhan to prove it, but the applicant did not avail that opportunity. Moreover, the aforesaid averment made in para 10 of the affidavit is in total contradiction of averment made in the application dated 14.3.2013 moved by applicant under Section 391 Cr.P.C., copy whereof has been annexed as Annexure no.14 to the affidavit filed in support of this application. In para 11 of this application it is clearly mentioned that the document (the certificate of Gram Pradhan) which the applicant had filed in support of his application under Section 391 Cr.P.C. was not in his possession, so he could not file it earlier during pendency of trial. 13. Considering all the facts and circumstances of the case, this court is of the considered view that the applicant had tried to fill up the lacunas by moving such application under Section 391 Cr.P.C. Though he could not succeed in this effort but he became successful in delaying the disposal of appeal. 14. The impugned order does not require any interference by this Court. 15. The application being devoid of merit was rightly rejected by learned lower appellate court. Hence, this application is liable to be dismissed and is hereby dismissed. ----------- 104 INDIAN LAW REPORTS ALLAHABAD SERIES (2016) 8 ILRA 104 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 01.08.2016 BEFORE THE HON'BLE KARUNA NAND BAJPAYEE, J. Criminal Misc. Bail Application No. - 23773 Of 2016 Chandan Singh Alias Pappu Singh ...Applicant Versus State Of U.P. ...Opposite Party Counsel for Applicant: Diwan Saifullah Khan,V.P. Srivastava Counsel for Opposite Party: G.A., D.K. Singh, R.P. Rajan, Shri Brijesh Sahai Present application has been moved seeking the release of the applicants on bail in Case Crime No.48 of 2016, u/s 147, 148, 149, 302, 120B, 506 I.P.C. and 7 Criminal Law Amendments Act, Police Station-Sarnath, District-Varanasi. Applicant counsel made submissions that the F.I.R. was lodged by Ashish Yadav, who is the son of the deceased and also an eye-witness of the occurrence as he claims that at the time of occurrence he was going along with his father in his Safari car and it was at that time that they were waylaid by certain accused persons, who started firing indiscriminately upon the father resulting in his death. The next submission is that the first informant was examined by the Investigating Officer u/s 161 of Cr.P.C. and in his statement given before the police he reiterated his version given in the F.I.R. But it had so happened that the incident in question got recorded in a CCTV camera which was fitted near the place of occurrence. It has been pointed out by counsel that the aforesaid CCTV footage was taken in possession by the Investigating Officer and was seen and shown to the family members which included the wife of the deceased Smt. Rajwati Devi. Counsel has drawn the attention of the Court to the statement of aforesaid Smt. Rajwati Devi, who is also mother of the first informant, in which she stated to have identified some other persons as accomplices different from the aforesaid nominated assailants. Court observed that after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail. (Delivered by Hon'ble Karuna Nand Bajpayee, J.) 1. This application has been moved seeking the release of the applicants on bail in Case Crime No.48 of 2016, u/s 147, 148, 149, 302, 120B, 506 I.P.C. and 7 Criminal Law Amendments Act, Police Station-Sarnath, District-Varanasi.