NAND RAM Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) 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 22012 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.