Mr. Rajendra Yashwant Kadam v. The State of Maharashtra

confirm medical report regarding applicant, viz. Exhibit-44, which is totally discarded by the learned Sessions Judge. 4) The learned APP, on the other hand, submitted impugned apparently discloses absence justification examination concerned Doctor stage. Undisputedly, Dr. Hardas Doctors examined applicant non- treatment Hospital application examination Dr. Hardas applicant during trial. There is no justification to allow the applicant to examine Dr. Hardas at this stage. 5) Section 391 of the Cr.P.C. undoubtedly empowers Appellate Court parties 4 further evidence evidence matter. necessary appropriate decision The Sub-Section 2 thereof provides dealing appeal Chapter 29 Cr.P.C.,. Appellate Court thinks additional evidence necessary, record its reasons and may either take such evidence itself or direct it to be taken by a Magistrate. 6) The provision of law under Section 391 obviously discloses decision Appellate Court allowing evidence exercised a additional evidence necessary matter. It appropriate decision a decision entire parties proceedings particular involved matter. However, before allowing evidence, necessity thereof established seeking produce evidence. Such necessity production thereof sought produced, provided production at the relevant time must be for sufficient and satisfactory reasons. 7) In the case in hand, the sole ground on Dr. Hardas sought examined 5 completion before pronouncement judgment Court Trial rejected medical report ground author report examined secondly, report considered, analysis evidence finding arrived thereon relation insanity different arrived Trial court. Certainly applicant materials record regard, justification Court exercise powers section 391 Cr.P.C. applicant further evidence matter prayed for. However, records to the contrary and do not justify exercise of those powers in the case in hand. 8) The impugned judgment itself discloses that evidence record reveals Dr. Hardas, along with Doctors, a member Committee headed Dr. Sudarshan examined applicant. In words, Sudarshan, Doctors members Committee examined applicant examined during course leading defence evidence. There explanation forthcoming Dr. 6 regards failure Applicant examine any of those Doctors before the conclusion of the trial. 9) It is pertinent to note that the reports disclose attempt behalf applicant summon Dr. Hardas examine during apparent

2002. Exhibit 38 29th January In fact, application allowed Court summons issued Hardas handed Advocate applicant service thereof Dr. Hardas J.J. Hospital. However, the entry in Roznama on 1st February 2002 reads thus : "Summons was issued to Dr. Hardas and it was given to the defence counsel for service, which has been returned to the Court without service...". Dr. The records nowhere disclose summons Dr. Hardas served efforts Court secure presence before knowing members Committee examined applicant considering insanity raised matter, the burden was squarely upon the applicant 7 to establish the said plea. 10) It is also pertinent to note that Dr. (Miss) Vanshree Patil examined DW-2 12th February

2002. She appeared before Trial Court pursuant summons issued instance applicant. The Exhibit-42 before Trial Court clearly discloses application applicant summons Dr. (Miss) Vanshree Patil examination defence witness and production of the case papers in relation to his treatment. 11) Testimony of Dr. Ms. Vanshree Patil clearly reveals examined applicant, conversant handwriting and signature of Dr. Sudarshan, and in fact, she has identified the same on Exhibit 44. 12) Knowing well the burden which was upon the applicant insanity, applicant required establish contents Exhibit 44 examining doctors examined him. It applicant enough opportunity available examine member committee 7 Doctors. Even though summons obtained Dr. Hardas, 8 served him. No attempts before trial Court to get fresh summons for Dr. Hardas. No explanation is forthcoming in that regard. 13) For the reasons stated above, therefore, we having exercise powers section 391 Cr.P.C. stage. applicant In fact, examine Dr. Hardas application virtually amount arbitrary exercise powers result allowing applicant lacunae evidence. The powers Section 391 Cr.P.C. can not be exercised to allow the parties to the proceedings to fill the lacunae in the evidence. 14) For the aforesaid reasons, the application is liable to be dismissed and is accordingly hereby dismissed. (R.M.S. KHANDEPARKAR, J.) KHANDEPARKAR, J.) (R.M.S. (R.M.S. KHANDEPARKAR, J.) A.A. SAYED, J.) ((( A.A. SAYED, J.) A.A. SAYED, J.)