Holding

An appellate court may order additional evidence in a criminal appeal only after the appeal has been heard on its merits and after a thorough examination of the record; it cannot do so as a matter of course.

Summary

Lakhan Singh, convicted of murder under IPC s.302 and sentenced to life, appealed the conviction and also sought to adduce additional evidence to support an insanity defence under IPC s.84. The Delhi High Court, invoking CrPC ss.311 and 391, allowed the application and directed the trial court to record the extra evidence, sending the file back. The complainant appealed to the Supreme Court, arguing that the High Court had not examined the existing record, where the accused’s mental condition had already been considered, and that the order to take further evidence was impermissible. The Supreme Court held that an appellate court cannot order additional evidence as a matter of course; such a step is permissible only after the appeal is heard on its merits and after a careful review of the record. Consequently, the Court set aside the High Court’s order, restored the criminal appeal for merits‑based reconsideration, and reinstated the application for additional evidence to be dealt with at an appropriate stage.

Issues considered

The scope of CrPC s.391: can an appellate court order the taking of additional evidence in a criminal appeal without first hearing the appeal on merits?
Whether the High Court erred in allowing further evidence on the insanity plea when the evidence was already on record and previously considered.
Whether Section 311 CrPC can be invoked to direct the trial court to record additional evidence in the circumstances described.

Legislation cited

Code of Criminal Procedure, 1973s. 311, s. 330, s. 391
Indian Penal Code, 1860s. 302, s. 84

Subjects

Criminal appealAdditional evidenceSection 391 CrPCInsanity defenceSection 84 IPCProcedural lawAppellate jurisdictionEvidence admissibility

Judgment

820 [2022]REPORTS
SUPREME COURT 17 S.C.R. 820 [2022] 17 S.C.R.

A LAKHAN SINGH
v.
AMARJEET SINGH & ANR.
(Criminal Appeal No. 2191 of 2022)
B DECEMBER 06, 2022
[DINESH MAHESHWARI AND SUDHANSHU DHULIA, JJ.]
Code of Criminal Procedure, 1973 – s.391 – Additional
evidence in criminal appeal – When impermissible – Respondent
no.1-accused was convicted u/s 302, IPC and sentenced to life –
C
Conviction and sentence challenged by respondent before High
Court, also filed application for recording of evidence in respect of
his plea of unsoundness of mind – Application allowed, Trial Court
was directed to take on record the additional evidence and documents
and to send the file back along with additional evidence – On appeal
D by complainant, held: Evidence regarding mental condition of the
respondent was already on record – He also got himself examined
as DW-2 to put forward the aspect of his mental incapacity – Facts
and conclusions in the orders passed by the Trial Court and by
Supreme Court were available before the High Court – While dealing
with the appeal, it ought to have examined the material on record
E before taking a decision as to whether any further evidence was
required in the matter or not – Deciding the application for
permission to lead additional evidence in the appeal without hearing
the parties on merits and without examining the record and the
reasoning that prevailed in the Trial Court, cannot be countenanced
F – Further, if at all any further evidence was considered requisite, it
could have been taken by the High Court itself or by directing the
registry to do the same, after recording specific reasons therefor –
Impugned order set aside – Criminal appeal restored for
reconsideration of the High Court on merits – Application filed by
respondent also restored – Penal Code, 1860 – ss.302, 84.
G
Code of Criminal Procedure, 1973 – s.391 – Scope of – Held:
Proposition of taking additional evidence in a criminal appeal
cannot be adopted as a matter of course by the Appellate Court –
Appellate Court could take a considered decision on the prayer for
adducing additional evidence in appeal only after the appeal itself
H has been heard on merits and not before.
820
LAKHAN SINGH v. AMARJEET SINGH & ANR. 821

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. A
2191 of 2022.
From the Judgment and Order dated 29.03.2022 of the High Court
of Delhi at New Delhi in Crl. M.A. No.1828 of 2020 in Crl. A. No. 453
of 2019.
B
Tanmay Mehta, Lakshya Gupta, V. K. Sidharthan, Advs. for the
Appellant.
Vikramjeet Banerjee, ASG, Roshan Santhalia, Ms. Suruchi Jaiswal,
P.V. Yogeswaran, Ms. Vishakha,. Raghav Sharma, Akshit Pradhan, Ms.
Shruti Agarwal, Ms. Janhvi Prakash,. Kartik Dey, Gurmeet Singh Makker, C
Advs. for the Respondents.
The Order of the Court was passed by
DINESH MAHESHWARI, J.
Leave granted. D
2. By way of this appeal, complainant of the criminal case arising
from FIR No. 211 of 2011 has questioned the order dated 29.03.2022
passed by the High Court of Delhi at New Delhi in Crl. M.A. No. 1828
of 2020 in Criminal Appeal No. 453 of 2019, whereby the High Court
allowed an application moved by the accused-applicant (appellant before E
the High Court-respondent No.1 herein) with reference to Sections 311
and 391 of the Code of Criminal Procedure, 19731 and directed the Trial
Court to take on record the additional evidence and documents, as
mentioned in the subject application; and to send the file back along with
additional evidence.
F
3. The relevant background aspects of the matter are that the
said appeal bearing No.453 of 2019 has been filed by the applicant-
respondent No.1 against the judgment of conviction dated 15.12.2018
and order on sentence dated 19.12.2018, as passed by the Additional
Sessions Judge, Tis Hazari Courts, West Delhi in relation to FIR No. 211
of 2011, whereby he was convicted of the offence punishable under G
Section 302 of the Indian Penal Code, 1860 2 and was sentenced to
imprisonment for life with fine of Rs.1 lakh.

1
‘CrPC’, for short.
2
‘IPC’, for short. H
822 SUPREME COURT REPORTS [2022] 17 S.C.R.

A 4. Looking to the nature of order passed by the High Court and
the order proposed to be passed by us herein, narration of all the factual
aspects is not necessary. Suffice it to notice for the present purpose that
while challenging the judgment and order leading to his conviction and
sentence, the applicant-respondent No. 1 submitted before the High Court
that on the date of incident, he was of unsound mind and hence, could
B
not have been tried and convicted in this matter; and such a relevant
fact had not been considered by the Trial Court. In support of this plea,
the applicant sought to rely upon, amongst others, the OPD Reports
dated 12.07.2011 and 19.07.2011 along with the Medical Store Bill dated
12.07.2011; and to examine the doctor who had attended on him and
C prescribed the medicines as also the chemist who had supplied such
medicines. The applicant also made the submission that he wanted to
examine the Director, IHBAS, Dilshad Garden, Delhi or any doctor from
IHBAS to ascertain his medical condition on the day of incident, as also
his father, who was having the original record of the said OPD Reports
D and Bill of medicines.

5. After taking note of the contents of application and the provisions
of Section 391 CrPC3, the High Court noticed that on behalf of the
State, there was no objection to the recording of evidence in respect of
the plea of unsoundness of mind, which the applicant intended to raise
E and which was not considered in the trial; and also observed that the
contentions sought to be urged were going to the root of the matter. On
these considerations and with reference to the General Exception

3
Section 391 CrPC reads as under: -
F “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 such Court shall
G 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.”

H
LAKHAN SINGH v. AMARJEET SINGH & ANR. 823
[DINESH MAHESHWARI, J.]

provided in Section 84 IPC4, the High Court deemed it appropriate to A
allow the applicant to lead additional evidence before the Trial Court.
Though the High Court expressed that the appeal was remanded back
but, issued directions that the Trial Court shall get the evidence recorded
after giving shortest possible dates and thereafter, the file shall be returned
along with additional evidence.
B
6. The relevant observations and directions of the High Court
read as under: -
“9.Keeping in view the facts and circumstances of the case before
us and also the fact that the state has accorded no objection to the
recording of the evidence in respect of the plea of insanity, which C
the appellant now intends to raise, as the same were not considered
during the course of the trial, and also the circumstance that the
contention raised at this stage by the appellant does go to the root
of the matter; the appellant wants to place on record documents
pertaining to his mental condition as well as wanting to examine
the witnesses in support of his contention; and the same in our D
considered opinion does not amount to filling up the lacuna in the
present case. The plea of insanity is covered under general
exceptions under Section 84 of the Indian Penal Code and the
same would definitely have a bearing on this case. Even otherwise
it is pertinent to observe that the Applicant/Appellant had in fact E
raised the issue of his being of unsound mind at the stage of trial
before the learned Additional Sessions Judge which was dismissed
and declined vide order dated 20.02.2014. Thus, in this view of
the matter, and in the interest of justice, we consider it appropriate
to allow applicant/appellant to lead additional evidence before the
learned Trial Court. F

10. Appeal is remanded back with the directions to learned Trial
Court to take on record the additional evidence and documents as
mentioned in the subject application, under Section 311 of Code
of Criminal Procedure, 1973 dated 23.01.2020. Let the file be
G
4
Section 84 IPC reads as under: -
“84.Act of a person of unsound mind.- Nothing is an offence which is done by a
person who, at the time of doing it, by reason of unsoundness of mind, is incapable
of knowing the nature of the act, or that he is doing what is either wrong or contrary
to law.”
H
824 SUPREME COURT REPORTS [2022] 17 S.C.R.

A placed before the learned District Judge – Tis Hazari Courts to
mark the case to the concerned Trial Court and the concerned
Trial Court shall fix a shortest possible date for recording of the
evidence. The Trial Court shall not give more than one opportunity
to the applicant/appellant to lead the additional evidence as prayed
for and shall not give any unnecessary adjournments. Thereafter,
B
the file shall be sent back to this Court along with additional
evidence recorded.”
7. Seeking to challenge the order aforesaid, learned counsel for
the complainant-appellant has argued that the order dated 20.02.2014,
as referred to by the High Court in the order impugned, was indeed
C considered and affirmed by this Court in the order dated 12.10.2015 in
Criminal Appeal Nos. 1345-1346/2015; and the impugned order, as passed
by the High Court, does not stand in conformity with the order so passed
by this Court.
7.1. Learned counsel has further submitted that during the course
D of trial, two-fold submissions were made in the application dated
17.11.2011 moved on behalf of the accused-applicant: one about his
mental illness at the time of incident and another about his unsoundness
of mind during the trial; and sought relief in terms of Section 330 CrPC.
Learned counsel would submit that in the order dated 20.02.2014, the
E application so made was duly considered by the Trial Court and then, the
same was dismissed with reference to the deposition of witnesses
examined for the purpose. Learned counsel has pointed out that in the
order dated 20.02.2014, the Trial Court, inter alia, found and held as
under:-

F “18. I am of the view that in view of medical board report dated
06.02.2013, the deposition of CW-1 & CW-2 and in view of further
report dated 01.01.2014 of IHBAS, the accused is fit to face trial.
The accused is not incapable of making his defence. The application
under Section 330 CrPC filed by Sunehera Singh father of the
accused is without any merits and same is hereby dismissed. With
G this application is disposed off.”
7.2. Learned counsel has further submitted that the said order
came to be specifically affirmed by this Court in the order dated
12.10.2015, that reads as under: -
“Leave granted.
H
LAKHAN SINGH v. AMARJEET SINGH & ANR. 825
[DINESH MAHESHWARI, J.]

The instant appeal has been filed by the father-in-law of the A
deceased, assailing the orders passed by the High Court,
suspending the trial of the respondent-Amarjeet Singh. The
question which came to be considered by the High Court, related
to the mental fitness of the respondents to face trial. Insofar as
the instant aspect of the matter is concerned, the High Court relied
B
on the first medical evaluation conducted by a Medical Board on
06.02.2013. It also relied on the statement of two Court witnesses
examined by the Trial Court, namely, CW-1 on 20.07.2013 and
CW-2 on 11.10.2013.
In addition to the above, the High Court also took into
consideration a second report of the Medical Board dated C
01.01.2014. In both the aforementioned Medical Reports, and also,
the statement made before the trial court by the two court witnesses,
respondents had been considered to be fit to face the trial.
In the above view of the matter and keeping in mind the opinion/
statements of experts on the subject, we are satisfied that the D
direction issued by the High Court on 04.09.2014, to suspend the
trial, was not justified. The impugned order passed by the High
Court is accordingly set aside. The order passed by the trial court
dated 20.02.2014, affirming the fitness of the respondents to face
trial, is confirmed. E
In the above circumstances, the appeals stand allowed.”
7.3. Learned counsel would submit that both the issues as regards
mental capacity of the applicant-respondent No.1 at the time of incident
as also during the course of trial stand concluded by the aforesaid orders;
and the High Court has not been justified in granting opportunity for F
further evidence on the very same aspects.
8. Per contra, learned counsel for respondent No.1 has submitted
that in the order dated 20.02.2014 passed by the Trial Court as also the
order dated 12.10.2015 passed by this Court, only the aspect as regards
the mental capacity of the applicant–respondent No.1 to face the trial G
came to be considered and pronounced upon but, his mental capacity at
the time of incident and his capacity to know the nature of his acts
definitely remains a question for consideration and hence, the High Court
has not committed any error in allowing evidence to be adduced in that
regard before the Trial Court.
H
826 SUPREME COURT REPORTS [2022] 17 S.C.R.

A 8.1. Learned counsel would further submit that the High Court
having taken a particular view which remains just and proper and serves
the cause of justice, no interference is called for.
9. Learned ASG appearing for the State has duly assisted us with
reference to the provisions of Sections 311, 391 and 330 CrPC.
B
10. Having given thoughtful consideration to the submissions made
and having examined the record, we are clearly of the view that the
order impugned cannot be sustained for more than one reason.
11. Insofar as the question of unsoundness of mind of the
C respondent No. 1 is concerned, it is noticed that in the application moved
before the Trial Court in reference to Section 330 CrPC, it was precisely
the contention on his behalf that he was suffering from mental illness
during the period of incident. It was also submitted that being of unsound
mind, he was incapable of making his defence. It is also noticed that in
the earlier round of proceedings, the High Court set aside the order
D
dated 23.02.2012 passed by the Trial Court and issued directions for
examination of respondent No.1 from the specialist/medical board.
Thereupon, the file was sent to the concerned Magistrate to get the
applicant examined by the medical board. After receiving report from
the medical board that respondent No. 1 was fit to stand trial, the Trial
E Court posted the matter for examination of witnesses and in fact,
examined two Doctors as CW-1 and CW-2 respectively. After taking
note of the entire evidence on record, the Court found that the respondent
No. 1 was fit to face the trial and was not incapable of making his
defence. Thus, the application was rejected. This Court approved the
order so passed by the Trial Court, particularly in view of the opinion/
F
statement of the experts and found no justification in the High Court
interfering with the matter.
12. In the given set of facts and circumstances, when the evidence
was indeed taken for the purpose of dealing with the plea put forward
G on behalf of the applicant-respondent No.1; and a specific view was
taken by the Trial Court, which was affirmed by this Court with reference
to the evidence available on record, we find it difficult to approve the
approach of the High Court in permitting further evidence of the same
nature to be adduced and for that purpose, sending the matter to the
Trial Court.
H
LAKHAN SINGH v. AMARJEET SINGH & ANR. 827
[DINESH MAHESHWARI, J.]

13. The procedure as adopted in the present matter is difficult to A
be approved, more particularly when specific evidence as regards mental
condition of the applicant–respondent No.1 is already on record and
then, it is also seen that the aspect of his mental incapacity was sought
to be put forward by respondent No.1 himself by entering into witness-
box and getting himself examined as DW-2. The facts and conclusions
B
in the orders passed by the Trial Court and by this Court are available
before the High Court. The High Court dealing with the appeal ought to
have examined the material on record before taking a decision as to
whether any further evidence was required in the matter or not. Secondly,
if at all any further evidence was considered requisite, in the totality of
circumstances of the present case and nature of plea sought to be raised, C
such evidence could have been taken by the High Court itself or by
directing the registry to do the same, of course, after recording specific
reasons therefor.
13.1. Put in a nutshell, it is apparent that while passing the order
dated 29.03.2022, neither the order passed by this Court on 12.10.2015 D
has been taken note of by the High Court nor even the evidence already
available on record has been examined by the High Court.
14. The proposition of taking additional evidence in a criminal
appeal cannot be adopted as a matter of course by the Appellate Court
and in fact, the occasion for the Appellate Court to take a considered E
decision on the prayer for adducing additional evidence in appeal could
arrive only after the appeal itself has been heard on merits and not before.
Taking up an application moved in the appeal for permission to lead
additional evidence and deciding the same without hearing the parties on
merits of the appeal and without examining record of the case and the
reasoning that has prevailed in the Trial Court, in our view, cannot be F
countenanced.
15. In the aforesaid view of the matter, the impugned order dated
29.03.2022 deserves to be and is hereby set aside and the appeal i.e.,
Criminal Appeal No.453 of 2019, stands restored for reconsideration of
the High Court in accordance with law. G
16. Having regard to the circumstances of the case, though we
are not approving the order dated 29.03.2022 but, while restoring the
appeal for consideration on merits, we would also restore the said
application, Cr.M.A. 1828 of 2020, as moved by the applicant-respondent
H
828 SUPREME COURT REPORTS [2022] 17 S.C.R.

A No.1, which may be considered at an appropriate stage by the High
Court in accordance with law; and appropriate orders may be passed,
as deemed fit and necessary in the facts and circumstances of the case.
17. The parties through their respective counsel shall stand at
notice to appear before the High Court in Criminal Appeal No.453 of
B 2019 on 10.01.2023.
18. In the totality of the circumstances of the case, the interim
arrangement made by the High Court in its order dated 15.09.2022 during
the pendency of the appeal shall continue until the first date of appearance
of the parties before the High Court i.e., 10.01.2023.
C 19. It goes without saying that we have not made any comments
on merits of the case either way; and all the aspects relating to the
merits remain open to be argued by the parties before the High Court.
20. With the observations, relaxations and requirements foregoing,
the appeal stands allowed.
D
Divya Pandey Appeal allowed.
(Assisted by : Deepak Panwar, LCRA)

E

F

G

H