Additional evidence on appeal may be admitted where necessary to prevent failure of justice and avoid prejudice.

Section 391 CrPC gives an appellate court a wide but cautious discretion to admit additional evidence where it is necessary for the just disposal of the appeal and to prevent failure of justice. The power must be exercised sparingly, and not to fill lacunae or convert the appeal into a retrial. The Madras High Court accepted that the proposed documents were existing records already available with the tax department, were omitted by inadvertence, and were relevant to the defence on mens rea and alleged suppression of income. It therefore allowed the additional evidence and set aside the refusal.

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Issues: Whether the appellants were entitled to adduce additional evidence in appeal under Section 391 of the Code of Criminal Procedure, 1973.

Analysis: Section 391 confers a wide but cautious appellate discretion to take further evidence where it is necessary for the just disposal of the appeal. Such power is to be exercised sparingly, only when omission of the evidence would result in failure of justice, and it is not meant to fill lacunae or to convert the appeal into a retrial. The proposed documents were stated to be existing records already available with the tax department, not newly created material, and their reception was found unlikely to alter the nature of the prosecution case or prejudice the complainant. The Court accepted that the documents were left out due to inadvertence and were relevant to the defence on mens rea and alleged suppression of income.

Conclusion: The appellants were entitled to adduce the additional evidence, and the refusal to permit it was set aside.

Ratio Decidendi: An appellate court may allow additional evidence under Section 391 of the Code of Criminal Procedure, 1973 where such evidence is necessary to prevent failure of justice, provided it does not prejudice the other side or operate as a disguised retrial.

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