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2019 DIGILAW 573 (RAJ)

Shobhag Mal v. State of Rajasthan

2019-02-18

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT Pushpendra Singh Bhati, J. - The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C. seeking the following relief:- "It is therefore prayed that Cr. Misc petition as such may kindly be allowed and the Order dated 19.12.2018 so passed by learned Additional Sessions Judge, Udaipur Camp Mavli in Sessions Case No. 06/2017 (State v. Suresh and Ors.) may kindly be quashed and set aside and further the application so filed by the prosecution on 29.01.2018 for recalling the witness namely Shobhag Mal and Jassu Bai may kindly be allowed." 2. Brief facts of the case are that the accused respondents No. 2 and 3 are facing trial for the offence under Sections 302, 460 and 397/34 of IPC after the first information report dated 14.10.2016. During trial, the statements of Smt. Jassu Bai (PW 1) and Shobhag Mal (PW 2) were recorded on 1.5.2017 and 25.5.2017 respectively. On 29.1.2018, learned P.P. filed an application under Section 311 Cr.P.C. stating that the statements of PW 1 and PW 2 were recorded on 1.5.2017 and 25.5.2017 and recovered articles deposited in Malkhana were not presented in the Court and hence, could not be identified by the witnesses nor the articles were marked. Hence, it was prayed that these witnesses be recalled. However, the learned trial Court rejected the said application of the prosecution on 19.12.2018 on the ground that the application has been moved to fill up the lacuna. So far as exhibiting the articles is concerned, the I.O. PW 16 Mr. Gehri Lal had appeared in the witness box and the articles were in fact exhibited as 3, 4, 5 & 6. 3.1 Learned counsel for the petitioner has argued that any lacuna which would lead to failure of the prosecution case can be in fact checked in the interest of justice and for the same purpose, the application under Section 311 Cr.P.C. moved by the prosecution ought to have been allowed by the learned Court below as the non-identification of articles may lead to absolute acquittal of the accused persons. Just because the articles were not produced from Malkhana at the time statements of the witnesses PW 1 and PW 2 were recorded, prosecution case will face demolition. Just because the articles were not produced from Malkhana at the time statements of the witnesses PW 1 and PW 2 were recorded, prosecution case will face demolition. Learned counsel for the petitioner has relied upon the judgment of the Honble Apex Court in the case of Rajendra Prasad v. Narcotic Cell ( AIR 1999 SC 2292 ) , relevant paras Nos. 6, 7 & 11 whereof read as follows:- "6. It is a common experience in criminal courts that defence counsel would raise objections whenever courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act by saying that the Court could not fill the lacuna in the prosecution case. A lacuna in prosecution 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. The adage to err is human is the recognition-of the possibility of making mistakes to which humans are proved. A corollary of any such latches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up. 7. 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 over sight in the management of the prosecution cannot be treated as irreparable lacuna. No parry in a trial can before-closed 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. 11. 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. 11. We cannot therefore accept the contention of the appellant as a legal proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that prosecution discovered latches only when the defence highlighted them during final arguments, The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision, The steps which the trial court permitted in this case for re-summoning certain witnesses cannot therefore be spurned down nor frowned at." 3.2 The learned counsel for the petitioner has also relied upon the judgment of the Honble Apex Court in the case of Mannan Sk & Ors. v. State of West Bengal & Anr. (2014 AIR SCW 4372) , para 15 whereof reads as follow:- "15. It is true that PW 15-SI Dayal Mukherjee was once recalled but that does not matter. It does not prevent his further recall. Section 311 of the Code does not put any such limitation on the court. He can still be recalled if his evidence appears to the court to be essential to the just decision of the case. In this connection we must revisit Rajendra Prasad where this Court has clarified that the court can exercise power of re- summoning any witness even if it has exercised the said power earlier. Relevant observations of this Court run as under: "We cannot therefore accept the contention of the appellant as a legal proposition that the court cannot exercise power of resummoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that the prosecution discovered laches only when the defence highlighted them during final arguments. The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision. The power of the court is plenary to summon or even recall any witness at any stage of the case if the court considers it necessary for a just decision. The steps which the trial court permitted in this case for resummoning certain witnesses cannot therefore be spurned down or frowned at." 3.3 The learned counsel for the petitioner has also relied upon the judgment of the Honble Apex Court in the case of Sister Mina Lalita Baruwa. v. State of Orissa and others. (2014 AIR SCW 14) , para 27 whereof reads as follow:- "26. In the decision in Rajendra Prasad (supra), this Court pointed out the distinction between lacuna in the prosecution and a mistake or error inadvertently committed which can always be allowed to be set right by permitting parties concerned by the Criminal Courts in exercise of its powers conferred under Section 311 Cr.P.C or under Section 165 of the Evidence Act. In paragraph 7, this Court has clarified as to what is a lacuna which is distinct and different from an error committed by a public prosecutor in the course of trial. The relevant part of the said paragraph reads as under: "......A lacuna in the prosecution 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......." 27. Again in paragraph 8, this Court has pointed out as to the duty of the Criminal Court to allow the prosecution to correct such errors in the interest of justice. Paragraph 8 of the said judgment reads as under: "8. 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. 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." (Emphasis added) 4. Learned P.P. submits that no party can be restrained from correcting error. Learned P.P. submits that the application filed by the prosecution should have been allowed in the interest of justice and even during the trial, wide powers of Section 311 Cr.P.C. can be invoked. 5. Learned counsel for the accused respondents have vehemently argued that non-consequential recalling of the witnesses cannot be permitted as the appropriate procedure was adopted by the prosecution and at this stage, allowing the prosecution to call these witnesses would be nothing but to allow the prosecution to fill the lacuna. 6. After hearing the learned counsel for the parties and after perusing the material available on record, this Court is of the opinion that if proper evidence was not adduced and relevant material was not brought on record due to inadvertence, the Court has to be liberal in allowing to fill the lacuna particularly, when the same are on the part of the prosecution. The precedent law cited by the learned counsel for the petitioner is fully applicable and this Court has to keep in mind the law laid down by the Honble Supreme Court that the lacuna in the prosecution has to go in favour of the accused but due to the oversight in management of the prosecution, it cannot be treated as an irreparable lacuna and proper evidence should be allowed to be adduced or relevant material ought to be brought on record and any inadvertence has to be allowed to be cured as the criminal Courts are for administration of criminal justice and not to count errors committed by the parties. 7. In the wake of the aforesaid discussion, the present Misc. petition is allowed. The impugned order dated 19.12.2018 passed by the learned Additional Sessions Judge, Udaipur Camp Mavli in Sessions Case No. 06/2017 ( State v. Suresh and Ors. 7. In the wake of the aforesaid discussion, the present Misc. petition is allowed. The impugned order dated 19.12.2018 passed by the learned Additional Sessions Judge, Udaipur Camp Mavli in Sessions Case No. 06/2017 ( State v. Suresh and Ors. ) is quashed and set aside and the application filed by the prosecution on 29.01.2018 for recalling the witness namely Shobhag Mal and Jassu Bai is allowed.