Surender Kumar & Ors v. State

1. This is a petition u/s 482 Cr.P.C. assailing the order dated 25.08.2011 passed by learned Addl. Sessions Judge on an application filed by the petitioners u/s 398(1) Cr.P.C. r/w Section 91 and 368(3) Cr.P.C. for production of record pertaining to entry gate register made by RPF at Container Depot Pragati Maidan, Delhi.

2. Briefly stated, facts of the case are that the present petitioners were convicted after a prolonged trial in respect of an offence purported to have been committed in the year 1986 u/s 3 of Railway Property (Unlawful possession) Act, 1966 vide judgment dated 26.10.2010. Vide order dated 02.11.2010 the petitioners were sentenced to RI for two "' ~---·-~ ~ ~~ -·-~ L" I 2011:DHC:13095 ~-years and to pay a fine of ~10,000/- and in default of payment of fine they are further directed to undergo simple imprisonment of one month.

3. The petitioners in appeal filed an application for production of ~' additional evidence by way of entry gate register. The case which was set up before the learned Addl. Sessions Judge was that although this fact was known to them and was disclosed "-"'to the learned counsel for the defence but he failed to procure the relevant evidence in order to prove their innocence. It is, therefore, submitted that application of the petitioners may be allowed and they be permitted to adduce evidence with regard to their innocence by showing the entries in the gate register maintained by the RPF at Container Depot Pragati Maidan.

4. This request of the petitioners was rejected by the learned Addl. Sessions Judge on the ground that the record is quite ' old and secondly this fact was known to the petitioners and it was disclosed by them to their counsel and since they have failed to do so at an appropriate stage, it would hardly make any difference now in establishing their innocence.

5. I have gone through the impugned order. I have also heard --------\ the learned counsel for the petitioners; I do not find any ) irregularity and illegality in the order passed by learned Addl. Sessions Judge. Admittedly, the incident pertains to the year 1986-87 and the petitioners wants to adduce evidence at the stage of appeal. The provision of additional evidence cannot be permitted to be used so as to fill up a lacuna more so when admittedly it is not the case of the petitioners that the defence which they have taken now and want to establish by production of record was not known to their counsel. They have failed to avail the opportunity of summoning at an appropriate stage, therefore, now they cannot be allowed to circumvent the law and to prolong the disposal which is pending before the Appellate Court. Accordingly the petition is dismissed. V.K. SHALl, J SEPTEMBER 28, 2011 mr ~.....--- ~,-! -·~~ ~ ' ~ ' "·:(: _,