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2018 DIGILAW 1145 (HP)

Inder Singh Chauhan v. State of Himachal Pradesh

2018-06-22

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. 1. Being aggrieved and dissatisfied with order dated 23.6.2017, passed by learned Special Judge, Chamba, District Chamba, Himachal Pradesh in Sessions Trial No. 14/16, whereby learned Special Judge dismissed the application having been filed by the petitioner- accused (hereinafter, ‘accused’) under Section 311 CrPC, accused has approached this Court in the instant proceedings, praying therein to set aside the aforesaid order (Annexure P-1) and allow the application having been filed by him under Section 311 CrPC. 2. Precisely, the facts as emerge from the record are that accused, who has been charge sheeted for having committed offence punishable under Sections 20 and 29 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter, ‘Act’) moved an application under Section 311 CrPC, for leading additional evidence in the court of learned Special Judge, Chamba, District Chamba, in Sessions Trial No. 14/16. Accused also averred in the application that while leading defence evidence, he inadvertently failed to examine one Ms. Pooja Thakur, Managing Director, Hill Academy, Chamba, whose examination is very material and essential for the just decision of the case. As per accused, he was present in Hill Academy Chamba, on the date of alleged incident till 4 pm being a student of Civil Engineering. He further averred that since distance of the place of occurrence is 40 kms from the aforesaid Academy, he can not be expected to cover distance of 40 kms within one hour. 3. Respondent-State opposed the application by way of filing reply inter-alia on the ground that application has been filed with a view to delay the proceedings and to fill up lacuna as such, same deserves to be dismissed. Learned Court below, taking note of the pleadings adduced on record by respective parities, dismissed the application by concluding that applicant-accused can not be allowed to fill up lacuna in defence at this belated stage, especially when defence evidence stands closed. In the aforesaid background, accused has approached this Court in the instant proceedings praying therein to allow application under Section 311 after setting aside the impugned order. 4. I have heard the learned counsel for the parties and gone through the record carefully. In the aforesaid background, accused has approached this Court in the instant proceedings praying therein to allow application under Section 311 after setting aside the impugned order. 4. I have heard the learned counsel for the parties and gone through the record carefully. It has been repeatedly held by Hon'ble Apex Court as well as this Court that lacuna in the prosecution must be construed to be an inherent weakness in the case and a latent wedge in the prosecution case and advantage of it should normally go to the accused in the trial of the case. 5. Hon'ble Apex Court in Rajendra Prasad vs. Narcotic Cell, which has been relied upon by the learned Special Judge, while passing impugned order, has categorically laid down difference between “lacuna in prosecution” and “correction of error” and has concluded that lacuna in prosecution case is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. Hon'ble Apex Court has further held that adage to err is human recognition of possibility of making mistakes, to which humans are prone. Corollary of such lapses or mistakes during trial/case can not be understood to be lacuna, which a court can not fill up. 6. Mr. Tara Singh Chauhan, learned counsel representing the accused, while placing reliance upon aforesaid judgment made a serious attempt to persuade this Court to agree with his contention that learned Court below has fallen into grave error while holding that allowing of application at this stage, would amount to filing up lacuna, which has crept in the defence of the accused. 7. Mr. Chauhan, contended that while exercising powers under Section 311 CrPC, paramount consideration of court is to do justice to the case and court can examine a witness at any stage, even if same results in filling up lacuna or loopholes. In that situation, it is a subsidiary factor. In this regard, he placed reliance upon judgments rendered by this Court in Cr. MMO No. 209 of 2017, Sardar Singh vs. State of Himachal Pradesh decided on 1.8.2017 and Cr. MMO No. 56 of 2018 titled Irshad vs. State of Himachal Pradesh, decided on 7.3.2018. 8. In that situation, it is a subsidiary factor. In this regard, he placed reliance upon judgments rendered by this Court in Cr. MMO No. 209 of 2017, Sardar Singh vs. State of Himachal Pradesh decided on 1.8.2017 and Cr. MMO No. 56 of 2018 titled Irshad vs. State of Himachal Pradesh, decided on 7.3.2018. 8. Having heard the learned counsel representing the petitioner and perusing material adduced on record vis-a-vis impugned order passed by learned Court below, this court is not inclined to accept the prayer made in the instant petition. It is quite apparent from the impugned order passed by court below that accused had closed his evidence on 13.5.2017, whereafter matter was listed for final arguments on 3.6.2017 and 15.6.2017 but on 15.6.2017, application in question came to be filed by accused. It also emerges from the impugned order that on 3.6.2017, adjournment was sought by defence counsel on the ground that they were not able to procure certified copies of the statements of witnesses and documents exhibited in the trial. 9. Not even a single suggestion has been put to the prosecution witnesses including Investigating Officer that accused Inder Singh was a student of Hill Academy being run by Ms. Pooja Thakur and on the date of occurrence, he was in the Academy till 4 pm. 10. Leaving everything aside, accused in his statement recorded under Section 313 CrPC has not set up a case that on the date of alleged occurrence, he was not present on the spot and till 4 pm he was in the Academy, rather, he has simply stated that false case has been implanted against him by the police. Learned Special Judge, has recoded in the impugned order that on 13.5.2017, accused examined two defence witnesses namely Om Parkash and Lekh Raj, as DW-1 and DW-2. During their examination, no such case is set up that on the date of alleged occurrence, accused Inder Singh was present in Academy being run by Pooja Thakur till 4 pm. Accused has also failed to crossexamine complainant HC Virender Singh PW-4 and other prosecution witnesses qua the aforesaid assertion made in the application in question. No suggestion worth the name has been put to prosecution witnesses on the aforesaid aspect of the matter. In the photographs Ext. PW-1/C-1 and Ext. PW-1/C-3, accused is seen. Accused has also failed to crossexamine complainant HC Virender Singh PW-4 and other prosecution witnesses qua the aforesaid assertion made in the application in question. No suggestion worth the name has been put to prosecution witnesses on the aforesaid aspect of the matter. In the photographs Ext. PW-1/C-1 and Ext. PW-1/C-3, accused is seen. As per prosecution, aforesaid photographs have been clicked by police party on the spot. Interestingly, applicant-accused is seen in the photographs and it is none of the case of the petitioner that photographs were subsequently procured. Had accused examined prosecution witnesses on the aforesaid aspect of the matter, this Court would have been persuaded to agree with the contention of Mr. Tara Singh Chauhan, learned counsel representing the accused that accused failed to examine Ms. Pooja Thakur, Managing Director, Hill Academy due to inadvertence. But in the case at hand, this Court having carefully perused material available on record has no hesitation to conclude that accused after closure of his evidence has made an attempt to set up altogether a different case. Defence sought to be raised by accused in the application in question could be considered by the court but since case set up by accused is that he has been falsely implicated, learned Court below rightly came to the conclusion that accused can not be allowed to fill up lacuna which has crept in his defence. As has been noticed herein above, though accused examined two witnesses in his defence but even then, no such case as is sought to be projected by way of application under Section 311 CrPC has been set up and it is only after closure of evidence that accused thought it proper to move an application under Section 311 CrPC, taking therein altogether different stand. 11. No doubt, this Court has repeatedly held that, while exercising power under Section 311 CrPC, paramount consideration of the Court should be to do justice to the case and court can summon a witness at any stage, even if same results in filling up lacuna or loopholes. Similarly, this Court has also held that material essential for just decision of the case ought to be taken on record. Similarly, this Court has also held that material essential for just decision of the case ought to be taken on record. However, in the case at hand, this Court having carefully perused the explanation rendered in the application filed under Section 311 CrPC vis-a-vis reasons recorded by learned Special Judge in support of his decision, finds no occasion for examination of Ms. Pooja Thakur, Managing Director, Hill Academy, Chamba, especially when plea of alibi has not been taken by accused. 12. At the cost of repetition, it may be noticed that accused has not taken plea of alibi rather, he, in his statement recorded under Section 311 CrPC, while claiming himself to be innocent, has categorically stated that he has been falsely implicated. In view of aforesaid specific stand taken by accused coupled with the fact that no suggestion with regard to aforesaid aspect of the matter has been put to the prosecution witnesses, this Court is not inclined to agree with the contention of Mr. Tara Singh Chauhan, learned counsel representing the petitioner that examination of Ms. Pooja Thakur is essential for just decision of the case. 13. In view of detailed discussion made hereinabove, I find no merit in the present appeal, which is accordingly dismissed. Order dated 23.6.2017, passed by learned Special Judge, Chamba, District Chamba, Himachal Pradesh in Sessions Trial No. 14/16 is upheld. Pending applications, if any, are disposed of.