Can accused produce additional evidence during appeal against his conviction?


Question: If an accused person has been convicted in a criminal case and he has filed appeal against his conviction in the appellant court, then will it be permissible for him to adduce additional evidence during the appeal stage, which can prove his innocence?

Answer: Law permits additional evidence to be produced during the appeal stage in a criminal case in certain situations. Section 391 of the Criminal Procedure Code (Cr.P.C.) is relevant in this regard and is reproduced 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 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.”

The above section makes it quite clear that by recording reasons, the appellate court can allow additional evidence during the appeal, if it considers additional evidence to be necessary for deciding the appeal correctly. Such additional evidence may be taken by the appellate court itself or it may direct such additional evidence to be taken by the Magistrate or by the Sessions Court (if the appellate court is High Court).

Thus, it is legally permissible to adduce additional evidence to the appeal stage. The appellate court may allow it. However, in practice, the appellate court may not allow additional evidence in a routine manner. You have to show the exceptional reasons as to why such evidence (which is now being sought to be adduced during the appeal stage) was not or could not be produced during the trial itself. But, if you can convince the appellate court as to how you were prevented from producing or were not able to such evidence during the trial, the appellate court may permit you to adduce additional evidence during the appeal stage. So, though law permits it, it will ultimate depend on the facts and circumstances of the case concerned.

About Dr. Ashok Dhamija

Dr. Ashok DhamijaDr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, is author of 3 law books, and is an ex-IPS officer. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. List of his Quora Answers. List of his YouTube Videos.

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