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Madhya Pradesh High Court · body

2000 DIGILAW 1084 (MP)

Manish v. State of M. P.

2000-09-30

N.K.JAIN

body2000
On consent heard finally at the admission stage itself. By the impugned order the trial Court (XIth ASJ, Indore) has allowed application made by the prosecution under Section 311 of the CrPC for recalling the prosecutrix for re-examination. Accused-applicant is facing trial on the charges under Section 366 & 376 IPC. The prosecutrix girl aged about 16 years was examined, cross-examined and discharged on 7.10.1998. Her deposition revealed that she was repeatedly asked questions by the prosecution as also by the Court about the alleged rape, but she did not give any clear answer to those questions. It is for this reason that the prosecution made application under Section 311 of the CrPC for recalling the witness for her further examination to clarify the matrix of the prosecution charge under Section 376 IPC. It is well settled that provision of Section 311 cannot be availed of for filling lacuna left by the prosecution or the defence. The position is made clear by the Supreme Court in Rajendra Prasad 1999 SCC (Criminal) 1062, in following terms :- "Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better." In the instant case the attempt of the prosecution is clearly to remove the lacuna left in the matrix of the prosecution case. It is not a case where by oversight of the prosecutor or the Court something has been left out. The Court below, we therefore not justified in allowing the prosecution prayer and recall the prosecutrix for re-examination. Accordingly, I allow the revision and set-aside the impugned order. The application made by the prosecution shall stand dismissed.