Asim and Munmun and Asif Abdulkarim vs State Of Gujarat on 10 April 2019
In the present case PW No.28 – Khodabhai Jogarana was in the organization of his companion to be specific Budho assumed name Vashrambhai at 6.30 at night. They both left on a motorbike to offer prayers at Ashram arranged at Paliyad street at Botad. The PW No.28 was driving the bike and his companion Vashrambhai was the pillion rider. While they were going through Shubham Complex at Paliyad street, they heard the sound of firing.
They heard two shots of shooting. On hearing the gunshots, they returned where they heard the discharge shots. They saw close to a haircutting salon, loads of individuals had assembled. The PW No.8 went inside the salon and saw Kamlesh – seating on the seat with blood The PW No.28 saw the applicant herein and the original accused No.2 inside the saloon. In the saloon, two employees were also present. PW No.28 saw that the accused No.2 had a revolver in his hand and the applicant herein had a Farsi sharp cutting instrument in his hand. As indicated by the PW No.28, around then, the deceased was advising both the charged people to hear him and furthermore alluded to one goddess Boot Bhavani. Around then, the accused No.2 indeed discharged a shot on the deceased. The denounced No.2 asked the PW No.28 to leave promptly else, he would likewise be murdered. PW No.28 on being frightened came out of the shop.
Thereafter, the applicant herein and the accused No.2 brought Kamlesh outside the saloon and threw him down. The applicant herein is alleged to have inflicted injuries with the weapon in his hand on the face and head of the deceased. The companion of the PW No.28 namely Vashram told PW No.28 that the person with the Farsi in his hand was one Moonmoon i.e. the applicant herein.
The trial court upon the appreciation of the oral as well as documentary evidence on record ultimately held the applicant herein and the original accused No.2 guilty of the offense of murder punishable under section 302 read with sections 34 and 114 of IPC. The applicant herein prays for suspension of the substantive order of sentence of life imprisonment pending the disposal of the Criminal Appeal filed by him against the judgment and order of conviction.
This is an application under Section 391 of the Code of Criminal Procedure, 1973 the occasion of a convict looking to lead additional evidence in the Sessions Case No.105 of 2013, by the Additional Sessions Judge, Botad. Against the judgment and request of conviction, the applicant has preferred Criminal Appeal No.249 of 2019. The appeal filed by the applicant herein has been admitted and is now pending for final hearing.
The High Court depended upon the judgment of this Court detailed in Union of India versus Ibrahim Uddin [2012 (8) SCC 148] to hold that the application for taking additional evidence on record should be heard at the time of final hearing of the appeal. For adducing additional evidence the judgment of this Court pertains to an application filed under Order XLI Rule 27 of the Code of Civil Procedure (‘CPC’). The application filed by the Appellant right now under Section 391 of the Cr.P.C., which engages the Appellate Court to either take proof without anyone else or direct the proof to be taken by a Magistrate or a Court of Session, on the off chance that it is fulfilled that the additional evidence is fundamental, of recording reasons.
The application under Section 391 Cr.P.C. requires to be decided when the appeal is finally heard said by Ms. Aastha Mehta, section 391 of the Cr.P.C. doesn’t force any limitation with respect to when the application petitioned for citing additional evidence ought to be heard by the High Court. In fact, we are of the opinion that it is desirable that an application filed under Section 391 should be heard immediately after it is filed without waiting for the appeal to be finally heard. Without mentioning any objective fact on the benefits of the case or the application documented under Section 391, the High Court to hear the application under Section 391 at the most punctual. Pending application(s) will stand discarded.