Manohar S/O Tikaram Kapgate vs State Of Maharashtra Thr. Pso Ps ...
2022 Latest Caselaw 6110 Bom

                                             1                        45 Appeal-284-2020.odt


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      NAGPUR BENCH, NAGPUR
             CRIMINAL APPLICATION (APPA) NO.135 OF 2022
                                IN
                  CRIMINAL APPEAL NO.284 OF 2020
          (Manohar Tikaram Kapgate. .Vs. The State of Maharashtra)
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions                      Court's or Judge's order
and Registrar's orders.
                   Shri E. W. Nawab, Advocate for Applicant/Appellant.
                   Shri N. S. Rao, APP for the Respondent/APP.


                  CORAM : AVINASH G. GHAROTE, J.

                  DATE           : 30th JUNE, 2022.

                  .       This criminal application has been filed by the

Appellant under Section 391 of the Code of Criminal Procedure, 1973, for grant of permission to produce the additional evidence in the Appeal.

2. The contention is, that on 01.11.2017, the victim had given a supplementary statement, wherein though in the first part, she has narrated about the incident, based upon which, the Appellant has been convicted, however, the same also, according to him contains the statement that a false complaint came to be filed by her, as she was beaten by her mother and maternal uncle. It is contended, that though in the cross-examination, this was not put to her by the learned Counsel appearing for the Appellant, that was on account of ignorance, for the reason that the copy of the supplementary statement was not supplied. He, therefore, submits that since knowledge about the supplementary statement dated 2 45 Appeal-284-2020.odt

01.11.2017, was ascertained from the record in the Appeal, hence, the present application has been filed.

3. Relying upon the judgment of the Hon'ble Apex Court in Smt. Shakila Abdul Gafar Khan ..Vrs.. Vasant Raghunath Dhoble and Anr, (Appeal (Crl.) 857 of 1996) , decided on 08.09.2003, he submits, that it is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. Reliance is also placed upon Rajeswar Prasad Misra ..Vrs.. The State of West Bengal, AIR 1965 SC 1887 , which holds, that the additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it and though the power must be exercised sparingly and only in suitable cases, however, once such an action is justified, there is no restriction on the kind of evidence which may be received or it may be formal or substantial.

4. Shri N. S. Rao, learned Additional Public Prosecutor for the Respondent/State seeks accommodation to address the Court on this issue, considering which, list the matter on 05.07.2022 after the end of the board.

Digitally signed byASHISH ASHOKRAO TAMBE JUDGE Signing Date:01.07.2022 10:18

TAMBE.