*1* appln3476o18 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3476 OF 2018 IN CRIMINAL REVISION APPLICATION NO.65 OF 2017 Devesh s/o Dattabhau Pathrikar, Age : 29 years, Occu : Associate Professor, R/o 490, N-3, CIDCO, Aurangabad. ...APPLICANT (Orig. accused) -VERSUS- The State of Maharashtra. Through the Police Station, Mukundwadi, Aurangabad. ...RESPONDENT … Shri R.S. Deshmukh, Senior Advocate a/w Ms. Shital S. Karle, Shri Harshal Nandre, advocates i/by Shri Vishal A. Chavan, Advocate for the applicant. Shri V.M. Lomte, APP for the respondents/ State. Mrs. Rashmi S. Kulkarni along with S.T. Bhimale, advocates for the original complainant. … CORAM : SUSHIL M. GHODESWAR, J. Reserved on : 10 September 2026 Pronounced on : 28 September 2026 JUDGMENT :- 1. The applicant, in the revision, has challenged the 2026:BHC-AUG:44052 *2* appln3476o18 judgment and order dated 28.02.2017 passed in Criminal Appeal No.24/2013 by the learned Additional Sessions Judge, Aurangabad, whereby, the said criminal appeal came to be dismissed and the judgment and order of conviction dated 15.01.2013 passed by the learned Assistant Sessions Judge, Aurangabad, in Sessions Case No.225/2006, thereby convicting the applicant under section 306 of Indian Penal Code and sentencing him to suffer rigorous imprisonment for 3 years and to pay fine of Rs.5000/-, in default, to suffer rigorous imprisonment for three months, is confirmed. 2. This Criminal Application No.3476/2018 has been filed in Criminal Revision Application No.65/2017 by the applicant/accused under Sections 391, 482 r/w 401 of the Criminal Procedure Code, 1973, for the following reliefs:- “(A) Criminal Application may kindly be allowed. (B) That this Hon'ble Court may graciously be pleased to allow the present Applicant to place on record the additional evidences/documents in form of photographs and call records marked as Annexure-A to B in the present Application, in the interest of justice. (C) The state board and Dr. B.A.M. University be directed to produce original examination answer sheet of the deceased and Examiner of *3* appln3476o18 Handwriting be directed to submit report by comparing original handwriting of the deceased. (D) Any other relief, to which the Applicant may be found entitled to, under the law and in the interest of justice, be kindly granted.” 3. By aforesaid prayers, the applicant is seeking permission to file additional evidence on record under section 391 of Criminal Procedure Code. The present applicant convicted under section 306 of Indian Penal Code. According to the applicant, he had previously provided the documents to the investigation officer at the time of investigation. However, it is unknown to the present applicant as to why the prosecution chose not to use the said documents before the learned Trial Court. It is stated that the applicant had prepared an application for permission to produce the additional evidence at the stage of appeal before the learned Additional Sessions Judge, however, the said request was declined. According to the applicant, since the documents have not been accepted by the appellate court, therefore, it has caused major prejudice to him. The documents which he is trying to produce before the court are vital and form important part of the applicant’s defence. Therefore, the applicant *4* appln3476o18 through the provisions of section 391 of CrPC, is praying for adducing fresh evidence in view of these documents. 4. According to the applicant, there are various photographs which are required to be produced before the learned Trial Court so that same can be considered for the purpose of recording evidence additionally. In the said photographs, the deceased was seen with the applicant and the said photographs disclose that she was very much happy with the applicant and as such, the applicant cannot be held guilty for the offence punishable under section 306. The entire photographs were earlier presented before the police during the investigation, however, the prosecution deliberately decided to use only few of them. The same set of photographs was tried to be presented before the learned Sessions Judge through an application for additional evidence, but the learned Sessions Judge declined the plea of the applicant. The applicant seeks the admission of these photographs as evidence in the present case as these photographs are crucial part of the trial as these photographs are the alibi tool in the hands of the present applicant to prove his innocence. It is specifically stated that the aforesaid photographs clearly show *5* appln3476o18 that the said photographs do not possess any objectionable content and are normal photographs of individual who are in love with each other. There is nothing that can be termed as objectionable to a reasonable man. Since the said photographs do not have any objectionable content, it is difficult to assume that the said photographs would have been used by the present applicant to threaten the deceased thereby resulting in her suicide. 5. It is further submitted on behalf of the applicant that the failure on the part of prosecution in adducing the entire set of photographs which are stated to be the crux of the abatement on the part of the present applicant clearly indicates towards the deliberate intention on the part of prosecution to conceal relevant evidence which could have gone in favour of the present applicant. 6. The another ground raised in the instant application is regarding bringing on record of the trial the call logs and details of the deceased father mobile phone for the period immediately prior to the death of deceased. According to the applicant, he was not in touch in any manner with the deceased. *6* appln3476o18 The call records of the deceased and her father are vital piece of evidence in the present trial as it makes clear that the present applicant has not been in any proximity with the deceased immediately prior to her death. Therefore, the neglect on the part of prosecution in producing the call records is fatal and it is clear that the prosecution has not conducted trial in fair manner. The aforesaid mentioned called records signify the fact that there was no contact or proximity between the deceased and the applicant. Without any contact being established between the applicant and the deceased for a substantial period of time prior to unfortunate death of deceased, it cannot be assumed that the present applicant ever got an opportunity to threaten the deceased leading to commission of suicide by the deceased. As such, the applicant seeks permission to file on record the additional evidence in the form of photographs and call records before this court, as according to him same is necessary for the purpose of adjudication of the matter pending before this court. In support of his submissions, the learned Senior Counsel Shri Deshmukh appearing on behalf of the applicant, has placed reliance upon the following judgments:- *7* appln3476o18 (a) Smt. Snehal Sudhakar Vispute vs. The State of Maharashtra, Criminal Application No.202/2020 in Criminal Appeal No.1135/2019 (Aurangabad Bench) dated 23.08.2024. (b) Brig. Sukhjeet Singh (Retd.) Vs. State of Uttar Pradesh and others, 2019 (16) SCC 712. 7. The aforesaid application came to be resisted by the prosecution as well as the original informant. They have filed their separate replies to this application. According to the prosecution/ State, the applicant was very much in possession of all those photographs and call reports. However, during the pendency of the trial, he did not take any effort to produce the said data before the learned trial court or before the appellate court. According to the State, the applicant did not mention anything regarding the said photographs and call records in his statement under section 313 of the CrPC or even his written statement. There is also no whisper regarding these documents. The documents are not at all relevant in this revision application. Accordingly, the State has prayed for rejection of the instant application. 8. The original informant has also filed his reply, *8* appln3476o18 thereby heavily opposed the instant application. According to the informant, the applicant has filed this application under section 391 of CrPC. However, in the entire application, there is no averment to show that as to why the additional evidence could not have been brought before the trial court by the applicant or before the appellate court. The essential ingredient of the provision is lacking and hence, the application for adducing the additional evidence is not maintainable in the eyes of law. The informant further stated in his reply that the present application is not maintainable, wherein the accused had given written statement under section 233(2) of the CrPC, wherein he had claimed to be in possession of photographs which he had also presented before the learned trial court. The written statement further reveals that the call details have already been annexed by the prosecution to the charge-sheet. These are very same documents and evidence which are sought to be adduced by the present applicant. Hence, the informant prayed for dismissing the instant application with exemplary cost. 9. The informant respectfully submitted that the photographs annexed to the instant application, if compared with *9* appln3476o18 the photographs annexed to the paper book, it can be revealed that these are very same photographs which are part and parcel of the paper book. Therefore, the very same documents are sought to be adduced again by the applicant. There is nothing but a tactic and mischief played by the present applicant to delay the hearing of the present revision application, which has been expedited by the Hon’ble Supreme Court. 10. The informant further submitted that in paragraph No.69 of the judgment and order passed by the learned Assistant Sessions Judge, Aurangabad, in Sessions case No.225 of 2006 on 15.01.2013, it has been specifically stated that the applicant/ accused had produced several photographs on record. This fact is itself evident that the photographs that are sought to be brought on record are already part and parcel of the trial and therefore, the said evidence is already discussed by the learned Trial Court. 11. As regards producing the CDR, it is submitted by the informant that the CDR is already exhibited in evidence through the evidence of IO. The applicant/ accused has already cross-examined the informant in detail about the said phone numbers. The informant has also denied that the deceased was *10* appln3476o18 using any other number and hence, the reference to phone numbers is now nugatory, as the applicant is trying to bring the same on record. Even if the judgment of the appellate court is perused, it can be seen that the arguments that were advanced by the accused were pointed towards the refusal of the prosecution to adduce evidence in respect of CDR. The said application could have been filed by the applicant at the appellate stage, yet the same was not filed. It is, therefore, necessary to consider that though the applicant preferred the instant application for adducing additional evidence in the nature of CDR reports and phone messages, however, he does not explain as to how the said phone messages have been recovered by the accused. Further, when did the accused became aware about the said messages. It is pertinent to note that the accused under the memorandum under section 27 of the Evidence Act has brought out two mobile handsets which were allegedly used by him and the deceased. However, the said mobile numbers mentioned in the disclosure memorandum of seized handsets differ from the mobile number which is sought to be adduced in evidence. 12. It is further submitted by the informant that the *11* appln3476o18 intent of invoking the provisions of section 391 of the CrPC, is not to fill up any gap in the prosecution, but is to oversee that the concept of justice does not suffer. The additional evidence cannot be received so as to cause any prejudice to any party. The provisions of section 391 are exception to the general rule and hence, such an exception ought not to be routinely exercised. The necessity of section 391 can only be ascertained at the stage of final hearing of the petition, as the court has first to come to the conclusion that additional evidence is necessary. In order to come to the said conclusion, the court is required to assess the available evidence. Therefore, the informant prayed for dismissal of the instant application praying for permission to adduce additional documents or evidence. In support of her submissions, Mrs. Rashmi Kulkarni relied upon the following judgments:- (a) Ajitsinh Chehuji Rathod vs. State of Gujarat and others, AIR 2024 SC 787. (b) Hasanate Teheriyyah Fidayyiah vs. Mahesh, 2014 (3) ALL MR 497 : 2014 (5) BomCR 231. (c) Rambhau and others vs. State of Maharashtra, AIR 2001 SC 2120. *12* appln3476o18 (d) Mamtadevi vs. Vijaykumar Agarwal, 2008(3) Crimes 62 (Bom.). (e) Zahira Habibulla H. Sheikh and others vs. State of Gujarat and others, (2004) 4 SCC 158. 13. After hearing the learned advocates for the respective parties at length and with their assistance, after perusing the available record, it is required to be noted here that the law is very settled by the catena of judgments rendered by the Hon’ble Supreme Court that the power to record additional evidence under section 391 of the Code of Criminal Procedure can be exercised when the party making such request was prevented from presenting the said evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during the pendency of the proceedings and that non-recording of such evidence may lead to failure of justice. 14. For deciding this application, it would be apposite to reproduce paragraph Nos.2, 3 and 4 from the judgment of the Hon’ble Supreme Court in Ramubhau and others versus State of Maharashtra) reported in AIR 2001 SC 2120, as under:- *13* appln3476o18 “2. A word of caution however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a re-trial or to change the nature of the case against the accused. This Court in the case of Rajeswar Prasad Misra vs. State of West Bengal and another, AIR 1965 SC 1887 in no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid enough to record however, that it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard. 3. Be it noted that no set of principles can be set forth for such an exercise of power under Section 391, since the same is dependant upon the fact-situation of the matter and having due regard to the concept of fair play and justice, well being of the society. 4. Incidentally, Section 391 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 since the same avoids a de novo trial. It is not to fill up the lacuna but to sub-serve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41 Rule 27 of the C.P. Code.” *14* appln3476o18 15. It would be further useful to refer paragraph Nos.47, 48 and 49 of the judgment in Zahira Habibulla H. Sheikh and other vs. State of Gujarat and others, (2004) 4 SCC 158 as under:- “47. Section 391 of the Code is another salutary provision which clothes the Courts with the power to effectively decide an appeal. Though Section 386 envisages the normal and ordinary manner and method of disposal of an appeal, yet it does not and cannot be said to exhaustively enumerate the modes by which alone the Court can deal with an appeal. Section 391 is one such exception to the ordinary rule and if the appellate Court considers additional evidence to be necessary, the provisions in Section 386 and Section 391 have to be harmoniously considered to enable the appeal to be considered and disposed of also in the light of the additional evidence as well. For this purpose it is open to the appellate Court to call for further evidence before the appeal is disposed of. The appellate Court can direct the taking up of further evidence in support of the prosecution; a fortiori it is open to the Court to direct that the accused persons may also be given a chance of adducing further evidence. Section 391 is in the nature of an exception to the general rule and the powers under it must also be exercised with great care, specially on behalf of the prosecution lest the admission of additional evidence for the prosecution operates in a manner prejudicial to the defence of the accused. The primary object of Section 391 is the prevention of guilty man's escape through some careless or ignorant proceedings before a Court or vindication of an innocent person wrongfully accused. Where the Court through some carelessness or ignorance has omitted to record the circumstances essential to elucidation of truth, the exercise of powers under Section 391 is desirable. 48. The legislative intent in enacting Section 391 *15* appln3476o18 appears to be the empowerment of the appellate court to see that justice is done between the prosecutor and the persons prosecuted and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct and proper findings, it would be justified in taking action under Section 391. 49. There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the Section are only to be invoked when formal proof for the prosecution is necessary. If the appellate Court thinks that it is necessary in the interest of justice to take additional evidence it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of the discretion of the appellate Court. As re-iterated supra the ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the public prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the Court in the discharge of its judicial functions.” 16. Thus, with the aforesaid guidelines it is clear that section 391 is intended to sub-serve the ends of justice by arriving at the truth and there should not be filling of any lacuna in the case. If the case of the present applicant is considered, the present applicant is insisting for taking additional evidence on record. The additional evidence, according to him, are the photographs which he is now trying to produce before the court and the call logs i.e. CDR. Both the aforesaid materials were *16* appln3476o18 admittedly in the possession of the applicant, however, he did not take any steps to produce the same before the learned Trial Court. The photographs which are sought to be produced before the court, if compared with the photographs which were already before the trial court, no difference can be seen from the said photographs. Though the accused has already produced several photographs on record, the said photographs and the photographs which are now sought to be brought on record, if compared, would reveal that there is not even the slightest difference between them. As such, the said photographs were the part and parcel before the trial court. However, why the applicant could not produce the said photographs before the trial court or the appellate court, has not been mentioned by him in the instant application nor even tried to be canvas before this court. 17. Upon comparison with the record of the trial, once the photographs sought to be produced are found to be very same photographs which were already produced and considered during the trial, their acceptance at this stage cannot be regarded as ‘additional evidence’ within the meaning of Section 391 merely because the applicant seeks to rely upon the same material for a *17* appln3476o18 different purpose. Thus, there is no additional evidence which is required to be considered by the court now, as regards the photographs are concerned. The learned Assistant Sessions Judge, in his order dated 15.01.2013 in paragraph No.69, has recorded that the accused himself has produced several photographs on record. 18. Another additional evidence which the applicant accused is trying to produce on record is the call records (CDR) which are of same registered number in the name of the informant. This CDR which he is now trying to produce is already exhibited in evidence through the evidence of IO. The accused had already cross-examined the informant in detail about the said phone numbers. The informant has also denied that the deceased was using any other number and hence, the reference to phone numbers is now nugatory, as the applicant accused is trying to bring the same on record. 19. The evidence which is now sought to be brought on record in revision, was in fact also tried to be brought before the appellate court, however, according to the judgment of the appellate court, it can be seen that the arguments that were *18* appln3476o18 advanced by the accused were pointed towards the refusal of prosecution to adduce evidence in respect of CDR. Though it is stated that the applicant tried to produce additional evidence at the appeal stage, however, the said request was refused. However, the applicant has not produced any order passed by the Appellate Court rejecting the application to produce additional evidence on record. Be that as it may, the rejection of the said request by the appellate Court does not, by itself, dispense with the requirement of demonstrating before this Court as to why the proposed additional evidence is necessary for adjudication of the present revision. No satisfactory explanation is forthcoming as to the relevance, authenticity or necessity of the material now sought to be relied upon. 20. Now, it is necessary to consider that the application filed by the present applicant for adducing the additional evidence in the nature of CDR reports and phone messages does not explain as to how the said phone messages have been recovered by the accused. Further, when did the accused become aware about the said messages. The accused under the memorandum under section 27 of the Evidence Act has brought *19* appln3476o18 out two mobile handsets which were allegedly used by him and the deceased. The said mobile numbers have been mentioned in the disclosure memorandum of seized mobile handsets, differ from the mobile number which is sought to be adduced as additional evidence. The accused had confronted the informant in cross-examination of a different mobile number and hence, the authenticity of the said mobile numbers is questionable and therefore, the application is also not tenable on this count also. 21. It is settled position of law that section 391 is not intended to enable a party to fill up a lacuna in its case or to introduce evidence which, having regard to the facts and circumstances of the case, is not necessary for a just adjudication of the proceedings. The additional evidence cannot be received so as to cause any prejudice to any party. Therefore, with the aforesaid observations, I find that there is no substance in the instant application. The evidence which is now sought to be adduced by the applicant was very much available before the trial court itself and no purpose will be served even after permitting the applicant to adduce the same material again. Moreover, the applicant has not stated as to why he could not *20* appln3476o18 produce the said evidence before the Trial Court which was very much in his possession. 22. The decisions relied upon by the learned Senior Counsel appearing for the applicant do not advance the case of the applicant in the facts and circumstances of the present matter. The said decisions, however, do not lay down that additional evidence must be received as a matter of course whenever an accused seeks to introduce further material. The exercise of power remains dependent upon the Court being satisfied that the proposed evidence is genuinely additional, relevant and necessary for just adjudication. In the present case, as noticed hereinabove, the photographs sought to be produced are already available on the record and the CDR relied upon is also stated to have already been exhibited, while no satisfactory explanation has been furnished demonstrating the necessity, authenticity or distinct evidentiary value of further material sought to be introduced. The factual foundation which warranted exercise of power under Section 391 in the aforesaid decisions is, therefore, absent in the present case. 23. In the aforesaid circumstances, this Court is of the *21* appln3476o18 view that the present application does not disclose any sufficient ground for exercise of the discretionary jurisdiction under Section 391 of the Code. It appears that the applicant is trying to prolong the hearing of the instant criminal revision application. The Hon’ble Supreme Court has already directed to expedite the hearing of the instant criminal revision application, however, the learned senior counsel appearing for the applicant insisted this court to decide this application for permitting to bring on record the additional evidence. For the reasons recorded above, the instant application does not have any merit, therefore, the same is dismissed. No order as to costs. 24. The Criminal Revision Application be listed for hearing on 05.10.2026. kps (SUSHIL M. GHODESWAR, J.)