CRM-M 25788 of 2009 1 In the High Court for the States of Punjab and Haryana at Chandigarh. CRM-M 25788 of 2009 Decided on Sept17,2009. Jaswant Singh and another -- Petitioners vs. State of Punjab --Respondent. CORAM:HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.K.S.Kahlon,Advocate, for the petitioners Mr.R.S.Rawat,AAG,Punjab. Rakesh Kumar Jain, J: (Oral) This is a petition under Section 482 Cr.P.C., for quashing of order dated 26.5.2009,passed by Addl.Sessions Judge, (Adhoc), Fast Track Court, Gurdaspur, dismissing the application of the petitioners filed under Section 391 Cr.P.C. for additional evidence. Briefly stated the facts of the case are that both the petitioners were tried in case registered vide FIR No.72 dated 30.4.2001, under Sections435/427 IPC,at Police Station, Dhariwal. in the Court of Addl. Chief Judicial Magistrate, Gurdaspur, in which both the petitioners were held guilty vide order dated 15.1.2008 and were sentenced to undergo R.I. for two years each and to pay a fine of Rs.500/-each under Section 435 IPC. In default of payment of fine, to undergo further R.I for one month each and further to undergo R.I. for six months each under Section 427 IPC. CRM-M 25788 of 2009 2 Both the sentences were, however, ordered to run concurrently. The period spent in custody during investigation and trial were ordered to be set off against the substantive period of their sentence. The aforesaid judgment of conviction and order of sentence has been challenged by the petitioners by way of Criminal Appeal No.3 of 2008 in the Court of Addl.Sessions Judge, (Adhoc), Fast Track Court, Gurdaspur. During the pendency of the appeal, an application under Section 391 Cr.P.C. was filed in which the petitioners have sought permission of the Court to bring on record copy of D.D.R. No.14 dated 25.4.2001 as additional evidence. The said application has been dismissed by that Court on 26.5.2009, vide order Annexure P-5, which is under challenge before this Court in the present proceedings. Learned counsel for the petitioners has, inter-alia, argued that the occurrence took place on 25.4.2001 at 1.30.p.m. Sham Singh complainant alongwith Baljit Singh and another had lodged DDR No.14 dated 25.4.2001 at 5.10. p.m. in Police Post Naushehra Majja Singh stating therein that their wheat crop had caught fire accidently. It is further alleged that the FIR had been lodged after deliberations in which names of the petitioners have been mentioned due to party faction in the village. It is also submitted that inadvertently, copy of said DDR No.14 dated 25.4.2001 could not be brought on record. I have heard learned counsel for the petitioners and examined the record produced by him. The petitioners have filed the aforesaid application under Section 391 Cr.P.C. which reads as under:- CRM-M 25788 of 2009 3 It is submitted as under: - 1. That the abovesaid appeal is pending in this Ld. Court and fixed for summoning the lower court file. 2. that the alleged occurrence is stated to have taken place on 25.4.2001 at 1.30 P.M. and immediately thereafter, Sham Singh complainant Baljit Singh P.W. alongwith other P.Ws had lodged the DDR at 5.10 P.M. in Police Post Naushehra Majja Singh stating therein that their wheat crop had caught fire accidentally when direction of the wind had changed from the fields of Harbhajan Singh son of Sh. Suba Singh by burning straw of his fields. 3. That the names of the accused were never mentioned as culprits in the said DDR. Copy of the DDR is enclosed herewith as Annexure A. But in the FIR which was lodged after the expiry of 5 days, name of appellant was mentioned as accused due to factionism in the village. 4. That inadvertently the earlier version mentioned in the DDR No.14 dated 25.4.2001 could not be brought on the file and not put to Sham Singh and Baljit Singh, when they appeared as witnesses in the lower Court. 5. That the version given in the FIR is entirely conversed to the prosecution story and its proof is necessary for just decision of the case. It is, therefore, requested that permission be granted to bring on record the copy of DDR No.14 dated 25.4.2001 as additional evidence, in CRM-M 25788 of 2009 4 the interest of justice. Dated: 2.5.2008 Jaswant Singh Applicant As per the findings recorded by the Court below, the case was registered on 30.4.2001. Challan was presented on 2.6.2001. Charge was framed on 30.8.2001 and the case was decided on 15.1.2008. During the period of seven years, no efforts were made by the petitioners to produce copy of DDR No.14 dated 25.4.2001, though the same was available with them and was within their knowledge. In the statements of the petitioners which were recorded under Section 313 Cr.P.C., the said DDR was not put to them by the prosecution. As a matter of fact, there is no explanation for the dead silence of seven years in respect of the said DDR. It is now well settled that power of additional evidence should be used sparingly and it should not be exercised for the purpose of filling in the lacuna in the prosecution evidence. It is no where mentioned by the petitioners in the application filed before the Court below that the said DDR No.14 dated 25.4.2001 was not within their knowledge. All that has been said that due to inadvertence, the same could not be produced on record. Keeping in view the aforesaid facts and circumstances of this case and the fact that the petitioners are themselves at fault, the present petition cannot be allowed. As such, the same is hereby dismissed. Sept 17,2009 (Rakesh Kumar Jain) RR Judge CRM-M 25788 of 2009 5