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2013 DIGILAW 16 (UTT)

AMIT RAJ v. STATE OF UTTARAKHAND

2013-01-04

SERVESH KUMAR GUPTA

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JUDGMENT Hon’ble Servesh Kumar Gupta, J. 1. Mr. Vipul Sharma, Advocate, for the revisionist. 2. Mr. P.S. Danu, Brief Holder for the State/respondent no.1. 3. Mrs. Pushpa Joshi, Sr. Adv. assisted by Mr. Saurav Adhikari, Advocate, for the private respondent no.2. 4. Having heard learned counsel for the parties, it appears that a S.T. No.54 of 2006 was on going in the court of Sessions Judge, Nainital. All the witnesses, including the Investigating Officer, had been examined. The incident relates back to the year 2005 pertaining to crime no.8077 of 2005 u/s 302/307 IPC. The matter was investigated by Sub Inspector Chandra Mohan and later on by Station Officer R.C. Makholia. At the relevant time, he was posted at Nainital who at the time of deposition in the Court, was posted in Almora. 5. During deposition, he made the statement in his examination-in-chief that on 17.10.2005 he went to prison Almora for recording the statement of accused/revisionist Amit Raj where the culprit confessed his guilt. 6. An application was moved by the Investigating Officer seeking the police custody of the accused which was granted and the Investigating Officer has deposed in his cross-examination in paragraph no.31 that after the police remand was accorded by the court concerned, he took the custody of accused from Almora gaol on 17.10.2005. He has further explained the reaching of Almora prison at 14 P.M. 7. In fact the statement of the Investigating Officer was beyond the facts and the entire above-narrated act, on the part of the Investigating Officer, was done from Nainital Jail. This mistake was soon realized by the prosecution. After the statements were over, the application was moved on 30.10.2012 by prosecution to the learned Trial Judge evoking his powers u/s 311 Cr.P.C. for clarifying the mistake in the statement of the Investigating Officer, so made by him. This application was resisted by the counsel for the accused on the ground that the prosecution cannot be extended a liberty to fill up the lacuna in the evidence. 8. Learned counsel for the revisionist/accused has relied upon the precedent of Hon’ble Madras High Court in the case of M/s Dandy Knit Garments and another Vs. This application was resisted by the counsel for the accused on the ground that the prosecution cannot be extended a liberty to fill up the lacuna in the evidence. 8. Learned counsel for the revisionist/accused has relied upon the precedent of Hon’ble Madras High Court in the case of M/s Dandy Knit Garments and another Vs. M/s Subiksha Spiners (P) Ltd. reported in 2000 Cri.L.J. 624, wherein it has been held that the prosecution cannot be allowed to fill up the lacuna by filing application u/s 311 Cr.P.C. and examine a witness in support of a document- Defects in prosecution case cannot be cured by marking of a document at belated stage and examining witness in support thereof. 9. The crucial question to be determined by this Court is whether the mistake in the statement of Investigating Officer amounts to a lacuna and the filling thereof is prohibitive or it is merely a clarification. 10. In this regard, certain precedents of Hon’ble Apex are relevant to be cited hereinbelow: - 1. Rajendra Prasad Vs. The Narcotic Cell through its Officer in Charge, Delhi AIR 1999 SC 2292 . 2. U.T. of Dadra and Haveli and another Vs. Fatehsinh Mohansinh Chauhan 2006(3) ACR 2663 (SC) 3. Sheikh Jumman Vs. State of Maharashtra 2012(9) SCALE 18. 11. In the case of Sheikh Jumman (Supra), another precedent of the Apex Court in the case of “Mohanlal Shamji Soni Vs. Union of India and another” 1991 Supp (1) SCC 271 was relied upon, where in paragraph no.10, it was held as under: - “10. ………….In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the new Code) are enacted where under any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and reexamine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happened to be rendered in inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.” 12. It was further reiterated by the Hon’ble Apex Court that if the Court has acted without the requirements of a just decision, the action is open to criticism but if the court’s action is supportable, as being in aid of a just decision, the action cannot be regarded as exceeding the jurisdiction. 13. Now, if we make a meticulous observation of the entire facts, circumstances and deposition of the Investigating Officer, then the Court cannot be oblivious of the fact that the incident was of almost seven years back and the investigation was conducted that time. After such a long lapse of period, the trial was being done. At the time of deposition, the Investigating Officer was posted at Almora. A Station Officer of Police during the span of seven years takes up the investigation of several cases in his hand. So, it is not unnatural on his part if his memory plays false at some point of time or in a particular case. The deposition that he recorded the statement of accused in Almora prison or he fetched the accused from that Cell was on account of his hanging over of his memory just for the reason that he was posted at Almora at the time of deposition. So, if he makes a slip of tongue and the prosecution makes an application for getting the clarification of the same, then in the opinion of the Court, the same does not amount to filling up of any lacuna. 14. Besides, the precedent of Hon’ble Madras High Court, so relied upon by learned counsel for the petitioner, is not attracted in the present controversy for the reason that filling up of lacuna does mean the supply of something which has been omitted or slipped to be produced by the prosecution earlier during the course of trial. But this is not the case here. So, the learned Sessions Judge, Nainital was absolutely correct in exercising the powers u/s 311 Cr.P.C. and the order passed by him is sustainable. 15. In view of what has been stated above, the revision is devoid of any merit and liable to be dismissed. Revision is dismissed accordingly. Interim order dated 2.11.2012 is hereby vacated. Inform the court below.