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I.A. No.4 of 2020
In
Crl. Appeal No. 40 of 2018
Trilochan Kapoor Sharma vs. State of Sikkim
THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appellate Jurisdiction)
S.B: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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I.A. No. 4 of 2020
IN
Crl. Appeal No.40 of 2018
Trilochan Kapoor Sharma,
S/o Late Hari Singh Sharma,
R/o Rhenock Bazar,
East Sikkim. ..... Appellant
Versus
State of Sikkim .....Respondent
Application under Section 391 read with Section 482 of
the Code of Criminal Procedure, 1973.
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Appearance:
Mr. B. Sharma, Senior Advocate with Mr.
Rajendra Upreti, Advocate for the Appellant.
Mr. Sudesh Joshi, Public Prosecutor and
Mr. Yadev Sharma, Additional Public Prosecutor
for the State Respondent.
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O R D E R (ORAL)
Dated: 02.09.2021
Bhaskar Raj Pradhan, J.
1. The appellant has moved an application under section
391 read with Section 482 of the Code of Criminal
Procedure, 1973 (Cr.P.C.) for placing further documents as
evidence on record. It is pleaded that the appellant had
taken a stand that he is suffering from mental illness at the 2
I.A. No.4 of 2020 In Crl. Appeal No. 40 of 2018 Trilochan Kapoor Sharma vs. State of Sikkim
time of alleged commission and even during the trial. It is
further averred that the appeal was filed in consultation
with his wife as the learned counsel who prepared the
memo of appeal was not satisfied with the appellant's
behavior. When the counsel for the appellant was preparing
the case for final argument, his wife also informed the
counsel that the day when exhibit-17 was allegedly
prepared, the appellant was mentally unfit, and she had
taken him to a doctor. The counsel for the appellant
advised the appellant's wife to find out the relevant
document. On doing so, she discovered the medical
certificate dated 23.05.2012 and discharge certificate dated
26.05.2012 annexed and marked as Annexure-A
collectively to the application. It is stated that the
documents are relevant and goes to the root of the case.
Consequently, the application for leading additional
evidence.
2. A reply has been filed by the State-respondent
contesting the application and stating that the appellant
has failed to establish how these documents are necessary.
3. Mr. B. Sharma learned Senior Advocate for the
appellant submits that a perusal of the impugned judgment
reflects that the learned Trial Court has heavily relied upon 3
I.A. No.4 of 2020 In Crl. Appeal No. 40 of 2018 Trilochan Kapoor Sharma vs. State of Sikkim
exhibit-17 against the appellant. He also took this court
through the various records of the case. He, therefore,
submits that these two documents are necessary, and the
application may be allowed. Mr. Sudesh Joshi learned
Public Prosecutor for the State-respondent submits
otherwise. It is submitted that although the appellant's wife
was examined as a defense witness, during the trial she did
not depose that on the day of execution of exhibit-17 the
appellant was in fact admitted to the hospital. It is his
submission that the scope of Section 391 Cr.P.C. is limited
to permitting additional evidence when the court finds it
necessary and not to fill the lacunae in the case. In
support, the judgment of the Supreme Court in Rajvinder
Singh vs. State of Haryana1 is referred to.
4. Section 391 Cr.P.C. reads as under:
"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
1 (2016) 14 SCC 671 4
I.A. No.4 of 2020 In Crl. Appeal No. 40 of 2018 Trilochan Kapoor Sharma vs. State of Sikkim
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."
5. The Supreme Court in State (NCT of Delhi) vs. Pankaj
Chaudhary2 held that the power conferred under Section
391 Cr.P.C. is to be exercised with great care and caution.
In dealing with any appeal, the appellate court can refer to
the additional evidence only if the same has been recorded
as provided under Section 391 Cr.P.C.. Any material
produced before the appellate court to fill up the gaps by
either side cannot be considered by the appellate court.
6. This court has considered the application and the
relevant records highlighted by Mr. B. Sharma as well as
Mr. Sudesh Joshi. The conviction of the appellant under
Section 468, 420, 471, 419, 201 of the Indian Penal Code,
1860 (IPC) and Section 13(1) (d) (i) of the Prevention of
Corruption Act, 1988 relates to offence committed in the
year 2012 but prior to the execution of exhibit-17. Exhibit-
17 is a letter dated 23.05.2012 under the signature of the
appellant as a Deputy Director where he admits to various
acts of omission and commission as reflected therein. This 2 (2019) 11 SCC 575 5
I.A. No.4 of 2020 In Crl. Appeal No. 40 of 2018 Trilochan Kapoor Sharma vs. State of Sikkim
document was exhibited by one Thupden Gelep Bhutia
(P.W.11). His cross-examination reflects that the stand of
the appellant was that exhibit-17 was signed under duress
and not what is sought to be made out in the application
under Section 391 Cr.P.C. that on the date of preparation
of exhibit-17 he was admitted to the STNM Hospital.
7. As rightly pointed out by the learned Public
Prosecutor the appellant had not even taken this stand
during his examination under Section 313 Cr.P.C.
8. Mr B. Sharma pointed out the various orders passed
by the learned Trial Court which reflects that before the
trial an application has been filed on behalf of the appellant
with various medical records pertaining to the treatment
undergone by him for mental illness. In exercise of the
powers under Section 329 Cr.P.C. the learned Trial Court
thought it fit to ascertain the appellant's mental status
before proceeding with the case. On 31.03.2016 Dr. C. S.
Sharma was examined as court witness. On his
examination the learned Trial Court held that it was
satisfied that the appellant was able to understand the
nature of the proceedings and could defend his case
properly. The said order also records that the learned
Public Prosecutor and the learned Senior Counsel for the 6
I.A. No.4 of 2020 In Crl. Appeal No. 40 of 2018 Trilochan Kapoor Sharma vs. State of Sikkim
appellant conceded that the trial of the case can begin
because of the then mental status of the appellant. This
order was not assailed. Thus, evidently the trial of the case
was conducted in the presence of the appellant who was in
good mental condition.
9. Dr. C.S. Sharma (D.W.1) was examined as a defence
witness. He deposed that the appellant was under
treatment since 2010 and in the year 2011 he referred the
appellant to National Institute of Mental Health and
Neurosciences (NIMHANS) Bangalore. He asserted that as
per the discharge summary issued by NIMHANS the
appellant was admitted for :-
"1. episodes of excessive subjective feelings of energy, over talkativeness, over grooming, over spending, tall claims, decreased sleep and decreased appetite suggestive of mania lasting for more than a week alternative with episodes of sadness, loss of interest in all the activities, depressed sleep and appetite suggestive of depression.
2. Second person auditory hallucination commanding since last eight years which would increase during episodes but are continually present even in the inter-episodic period.
3. Worsening of symptoms since 2008 with delusion of reference, prosecution, second person auditory hallucination, de-realization with extreme fluctuation in mood.
The patient was diagnosed as schizoaffective disorder and was started on treatment.
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I.A. No.4 of 2020 In Crl. Appeal No. 40 of 2018 Trilochan Kapoor Sharma vs. State of Sikkim
10. The fact that the appellant was treated in the year
2011 at NIMHANS Hospital, Bangalore and previously by
Dr. C.L Pradhan and Dr. C.S. Sharma was also reiterated
by Ms. Durga Sharma (D.W.2) wife of the appellant. The
first document sought to be relied upon by the appellant is
a document of STNM Hospital dated 23.05.2012 with an
endorsement that the appellant was directed to be admitted
in the psychiatric ward. The other document is a document
of the District Mental Health Programme, Department of
Psychiatry Health Care, Human Services & Family Welfare
Department, Sikkim dated 26.05.2012 which records the
complaints of the appellant on that day, the information
given purportedly by his brother that the duration of his
illness was 3/4 years, as well as the treatment plan by Dr.
C.L. Pradhan given on 26.05.2012.
11. The Appeal was filed on 26.11.2018. It is supported by
an affidavit of the appellant contrary to the stand taken by
the appellant in the application under consideration. The
evidence of his mental condition is already on record. The
explanation sought to be given by the appellant to produce
Annexure-A collectively at this stage after 5 years of
framing of charges while the appeal is ready for final 8
I.A. No.4 of 2020 In Crl. Appeal No. 40 of 2018 Trilochan Kapoor Sharma vs. State of Sikkim
argument is wanting and seems to be an attempt to raise a
fresh plea not taken during the trial.
12. As held by the Supreme Court in Rajvinder Singh
(supra) it was certainly possible for the appellant who was
in good mental condition to understand the nature of the
proceedings during the trial to produce the said documents
during the trial especially when the appellant had also led
defense witnesses.
13. In the circumstances, this court is of the considered
view that the application under Section 391 Cr.P.C. is
devoid of merit and is accordingly rejected.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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