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2017 DIGILAW 739 (HP)

Nand Ram v. State of Himachal Pradesh

2017-06-30

DHARAM CHAND CHAUDHARY

body2017
Dharam Chand Chaudhary, J. (Oral) Order under challenge in this petition has been passed by learned Additional Sessions Judge-II, Solan district at Solan in an application under Section 311 of the Code of Criminal Procedure registered as Cr.MA No. 42 ASJ-II/4 of 2017 whereby the permission sought by the petitioner herein (appellant-convict in the lower Appellate Court) to produce and prove in evidence bill No. 25463 dated 21.2.2012, already produced on record during the course of trial and marked as D3, has been declined and the application dismissed. 2. As a matter of fact, the petitioner has been tried and convicted for the commission of an offence punishable under Section 379 of the Indian Penal Code with the allegations that he was caught red handed with two jari cans and pipe after having drained the diesel from bus No. HP-64-7777 on 22.2.2012 in the midnight i.e. 2:15 A.M. at bus stand Dharampur. On holding full trial, learned trial Magistrate has held the petitioner guilty for the commission of an offence punishable under Section 379 of the Indian penal Code. He was accordingly convicted and sentenced vide judgment dated 13.6.2016 passed in Criminal Case No. 22/2 of 2013. It is this judgment which has been assailed by him before learned lower Appellate Court. 3. In order to show otherwise that he is an innocent person he intends to produce in evidence bill/receipt mark D3 whereby he had purchased diesel from Banveet Service Station, Manimazra allegedly stolen by him. Therefore, application under Section 311 Cr.P.C. was filed by him in the lower Appellate Court for seeking permission to produce in evidence the said bill and also to examine someone from Banveet Service Station, Manimazra. Learned trial Judge has, however, dismissed the application with the observations that the Court is not supposed to create or obtain any evidence on behalf of the accused. Also that he should have produced the bill in question in evidence during the course of the trial. He rather had not opted for producing any evidence in defence in the trial Court. The evidence now sought to be produced by the petitioner in the opinion of learned lower Appellate Court is not essentially required for just decision of the case. 4. He rather had not opted for producing any evidence in defence in the trial Court. The evidence now sought to be produced by the petitioner in the opinion of learned lower Appellate Court is not essentially required for just decision of the case. 4. Having gone through the record of this case available at this stage and taking into consideration the rival submissions, this Court is not in agreement with the reasons recorded by learned lower Appellate Court while dismissing the application for the reasons that plain reading of Section 311 of the Code of Criminal Procedure makes it crystal clear that any Court at any stage of the inquiry, trial or other proceeding may summon any person as a witness or examine any person in attendance or recall and re-examine any person already examined if his evidence appears to it to be essential to the just decision of the case. The scope of Section 311 of the Code has been explained by this Court in Cr.MMO No. 4039 of 2013, titled Pritam Chand versus State of Himachal Pradesh, decided on 9.9.2013 and while placing reliance on the judgment of the Hon’ble Apex Court in Hoffman Andreas Versus Inspector of Customs, Amritsar, (2000) 10 SCC 430 has quashed the order under challenge in the petition and permitted the defence to recall the witnesses for further cross-examination. 5. Now if coming to the case in hand, the copy of the bill sought to be produced is already marked D3 on trial Court record. Since the defence of the petitioner-convict in his statement under Section 313 Cr.P.C. and also from the crossexamination of the witnesses is that he had purchased the diesel allegedly stolen by him by draining from Bus No. HP-64-7777, from Banveet Service Station, Manimazra, therefore, such evidence cannot be said to be an afterthought or fabricated after the petitioner held guilty and convicted/sentenced under Section 379 IPC. Since the suggestion that the petitioner-convict when apprehended apprised the police that he had brought bus from Manimazra after repair stand admitted by the prosecution witnesses. Therefore, in such a situation the possibility of he having purchased diesel also from Manimazra cannot be ruled out. Since the suggestion that the petitioner-convict when apprehended apprised the police that he had brought bus from Manimazra after repair stand admitted by the prosecution witnesses. Therefore, in such a situation the possibility of he having purchased diesel also from Manimazra cannot be ruled out. There is nothing in Section 311 Cr.P.C. that the party seeking relief to summon a material witness or examine any person present is required to explain the reason for non-examination of such person or witness at an appropriate stage i.e. during the course of trial. On the other hand such person or witness can be summoned at any stage of the trial or proceedings, of course, if his evidence to the Court appears to be essential for just decision of the case. 6. In view of what has been said hereinabove, the bill now sought to be produced by examining someone from Banveet Service Station, Manimazra and getting the original record of the bill produced in the Court is essentially required for just decision of the Court. Learned Lower Appellate Court, therefore, should have allowed the petitioner to produce someone from Banveet Service Station, Manimazra along with original record of the bill mark D3. The impugned order, as such, is neither legally nor factually sustainable. The same is, therefore, quashed and set aside. Consequently, the application is allowed. There shall be a direction to learned Lower Appellate Court to summon the witness and thereby allow the petitioner to produce evidence in his defence. The petition is accordingly disposed of. 7. The parties on both sides through learned Counsel representing them are directed to appear in the lower Appellate Court on 19.7.2017. 8. Pending applications, if any, shall also stand disposed of.