Order 9

Order Details: COPY OF ORDER
Pdf Text: CA No. 43/2024
Anjali Verma Vs. State & Anr.
23.11.2024
Present:- Appellant in person.
Sh. Rajender Singh, Ld. Counsel for the appellant,
through VC.
Sh. S.K. Tripathi, Ld. Addl. PP for the State/R1.
Respondent no.2 with Ld. Counsel Sh. Puneet
Kumar Saxena.
Record perused. No clarification is required.
Put up for order on the application under Section
391 of Cr.P.C. at 04.00 pm.
(Subhash Kumar Mishra)
Additional Sessions Judge-03,
East, KKD Courts, Delhi
23.11.2024
At 04.00 pm
Present:- Father of appellant in person.
Respondent no.2 in person.
1. Vide this order, the application of the appellant moved
under Section 391 Cr.P.C, for recording the additional evidence,
will be disposed of.
2. Counsel for appellant has argued that the respondent no.2
had been acquitted by the Ld. Trial Court holding that the
marriage of the appellant with respondent no.2 was void as per
Hindu Marriage Act because PW/Subhash Suri i.e. the father of
the appellant admitted that the appellant and respondent no.2 are
first cousins.
-- 1 of 5 --
3. He argued that the marriage of the appellant with
respondent no.2 was as per the prevalent custom in their
community. However, during the trial, the appellant was not
cross examined on the aspect of validity of the said marriage and
therefore, the said fact remained not proved.
4. He further argued that no opportunity was given to the
appellant to explain the prevalence of usage and custom in their
community, in which the marriages between first cousins are
permitted.
5. It was also argued that several other relatives of the
appellant and respondent no.2 have married with their first
cousins, as per the prevalent custom and such marriages also take
place in the community, appellant and respondent no.2 belong to.
6. He argued that the appellant did not get an opportunity to
prove this fact before Ld. Trial Court by leading evidence and
considering the fact that Ld. Trial Court acquitted the respondent
no.2 only on this ground, the appellant may be permitted to lead
evidence in this regard.
7. Per contra, counsel for the respondent no.2 argued that by
filing the instant application, the appellant has misused the
process of law with a view to lingering on the proceedings.
In support of his arguments, he relied on the following
judgments:-
a) Sonu Dahiya Vs. State, Crl. A. No. 9/2015 (Hon’ble High
Court of Delhi)
-- 2 of 5 --
c) Ashok Tshering Bhutia Vs. State of Sikkim, 2011 CrLJ.
1770
8. I have heard the arguments and have gone through the
Trial Record including the case laws relied on.
9. In Rambhau vs. State of Maharashtra, (2001) 4 SCC 759,
Hon’ble Apex Court has held that 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 power,
being an exception, shall always be exercised with caution and
circumspection, so as to meet the ends of justice. This power is
not to be used to fill up the lacuna, but to subserve the ends of
justice.
Hon’ble Apex Court also held that a very wide discretion
is available to the Court in terms of Section 391 of Cr.P.C, but
additional evidence cannot and ought not to be received in such a
manner so as to cause any prejudice to the other party.
10. In State of Karnataka and Anr. Vs. K.C. Subramanya and
Ors., (2014) 13 SCC 468, it was held that a party can produce
evidence in appeal only if the evidence sought to be produced,
could not be produced during the trial in spite of the exercise of
due diligence and it was not within his knowledge.
11. In Zahira Habibulla H. Sheikh vs. State of Gujarat (2004) 4
SCC 158, Hon’ble Supreme Court has re-iterated that object of
Section 391 Cr.P.C. is not to fill in the lacuna, but to sub serve
the ends of justice and Court considering the salutary principles
-- 3 of 5 --
shall also keep in view that the wide discretion conferred on the
Court has to be exercised judiciously.
It was further held that Section 391 Cr.P.C. is in the nature
of exception to Section 386 Cr.P.C. and the necessity for
additional evidence arises when the Court feels that some
evidence which ought to have been before it, is not before it.
12. In Sonu (supra), it was held by Hon’ble High Court of
Delhi that the object of Section 391 Cr.P.C. is not to enable the
prosecution to produce evidence at a later stage which could have
been produced at the first Trial and to fill up the lacuna left by it.
Therefore, an order allowing an application under this section
must be set aside as it would tantamount to allowing the
prosecution to reinvestigate the matter and adduce further
evidence.
13. Therefore, in view of the above judgments, it is clear that
provisions of Section 391 Cr.P.C should be invoked only for the
ends of justice and not for any other reason. Under this provision,
a party can not be allowed to adduce the evidence at the appellate
stage when it has failed to do so during trial despite opportunities
available to him in this regard.
14. In the instant case, the present application was filed on
behalf of the appellant after the arguments on the appeal had
been addressed. Had the appellant indeed wanted to lead the
evidence in this regard, she could have moved this application
along with the appeal itself. However, she chose not to do so.
-- 4 of 5 --
15. Moreover, during his cross examination of PW3/Sh.
Subhash Chand Suri i.e. the father of the appellant admitted that
appellant and respondent no.2 were first cousins. He said that the
respondent no.2 was son of his ‘Saadhu’.
It means that the father of appellant was aware of the fact
that the validity of the marriage of the appellant with respondent
no.2 was being called into question, despite this, he did not say in
his testimony that such marriage was as per the prevalent custom
in his community.
16. Moreover, despite knowing this fact, the appellant did not
move any application before Ld. Trial Court for calling the
witnesses to prove the validity of such marriage in their
community.
17. Therefore, the appellant had sufficient opportunity to lead
evidence in this regard before Ld. Trial Court by moving an
appropriate application but she failed to do so.
18. Having discussed as above and in view of the law laid
down in the above judgments, the application stands dismissed.
Put up for clarification, if any/consideration on appeal on
18.12.2024.
(Subhash Kumar Mishra)
Additional Sessions Judge-03,
East, KKD Courts, Delhi
23.11.2024
-- 5 of 5 --