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2019 DIGILAW 680 (BOM)

STATE OF MAHARASHTRA v. KAUSTUBH HEMANT KULKARNI

2019-03-07

S.M.MODAK, SUNIL B.SHUKRE

body2019
JUDGMENT : 1. This application filed under Section 311 of the Code of Criminal Procedure ('Cr.P.C.' for short) by the State is an attempt to recall the witness, PW-10 Dr. Shashikant Dhoble, the Medical Officer, who conducted postmortem examination of the deceased and opined that the cause of death of the deceased was cut throat injury, made with a great delay backdropping it as a memory of material misses of prosecution haunting the prosecution case. Not saying anything more than just pointing out that the application has been filed after the case initiated for confirmation of the capital punishment awarded to the accused and the criminal appeal filed against the conviction and sentence by the accused have been heard fully and the judgment reserved. The accused has been found guilty of committing the murder of his own mother in the morning of 20/04/2016 in his house at Chandrapur. 2. It is submitted by Shri Jawade, learned Additional Public Prosecutor, and we appreciate that notwithstanding the inordinate delay, these submissions are in the nature of an ardent and sincere effort to secure the ends of justice from the view point of the prosecution, that failure of Medical Officer, PW10 Dr. Shashikant, to describe in his evidence before the Court the injuries suffered by the deceased which he mentioned quite elaboratively in the postmortem report issued by him vide Exh.277 was only due to his inadvertence. He further submits that same reason was present when he defaulted in stating in his evidence that these injuries were or any of them was sufficient in the ordinary course of nature to cause death. He submits that this was an innocent lapse on the part of the Medical Officer and perhaps also the learned A.P.P. in properly managing the conduct of prosecution case. So, this is a deserving case where an opportunity be made available to the prosecution to correct it to enable the Court to arrive at a just decision in the case. 3. Shri Jawade draws our attention to the view taken by the Hon'ble Apex Court in the case of State of Uttar Pradesh vs. Mohd. Iqram & another, (2011) 8 SCC 80 and says that the mistake has a potential of significantly denting the prosecution case. 3. Shri Jawade draws our attention to the view taken by the Hon'ble Apex Court in the case of State of Uttar Pradesh vs. Mohd. Iqram & another, (2011) 8 SCC 80 and says that the mistake has a potential of significantly denting the prosecution case. He submits that the learned Counsel for the accused has already proffered that this view is one of the mainstays of the defence of the accused. He explains that the view is all about the consequence of failure or forgetfulness of the Medical Officer to describe in his evidence the injuries mentioned in the postmortem report. He further submits, the consequence, according to the view, is that such an omission may result in creating an embargo upon the Court to read the injuries mentioned in the postmortem report in evidence. According to the learned A.P.P., if this is allowed to happen in the present case, the cause of justice would be adversely affected and so the application needs to be granted. 4. The learned A.P.P. relies upon following cases: Rajendra Prasad vs. Narcotic Cell through its Officer-in-Charge, Delhi, (1999) AIR SC 2292. State of Haryana vs. Ram Mehar & others, (2016) AIR SC 3942. Iddar & others vs. Aabida & another, (2007) CriLJ 4313. Vijay Kumar vs. State of U.P. & another, (2012) CriLJ 305. Zahira Habibulla H. Sheikh & another vs. State of Gujarat & others, (2004) AIR SC 3114. 5. Shri Daga, learned Advocate for the accused submits that what has been sought to be brought on record is not any rectification of simple or inadvertent mistake in the conduct of the prosecution case, but a correction of something which is a material mistake amounting to fundamental lacuna in the prosecution case, which can never be allowed to be filled up, or otherwise serious prejudice will occur to the defence which will also defeat the cause of justice. He submits that it is well settled law that Section 311 Cr.P.C. power cannot be used for filling up the lacuna in the prosecution case. 6. Shri Daga analyses Section 311 of Cr.P.C., as having two distinct parts; with one part relating to discretion of the Court to recall the witness on just grounds to ensure fair trial and; the other part relating to the mandatory duty of the Court to summon a witness. 6. Shri Daga analyses Section 311 of Cr.P.C., as having two distinct parts; with one part relating to discretion of the Court to recall the witness on just grounds to ensure fair trial and; the other part relating to the mandatory duty of the Court to summon a witness. He expounds that the second part casting a duty upon the Court to summon the witness applies only when some new evidence is required to be brought on record and such being not the case here, the application as filed by the prosecution would be governed only by the first part. He further submits that the first part is about the exercise of the discretionary power by the Court and it is well settled law that while exercising its discretion, Court is not permitted to upset the balance which has been fairly established between the prosecution and the defence or otherwise it would be a case wherein the decision would not be just. He also adds that there is a great delay in filing this application. 7. Shri Daga relies upon cases, in addition to the case of Mohd. Iqram (supra) as follows : Hanuman Ram vs. State of Rajasthan & others, (2009) AIR SC 69. State of Haryana vs. Ram Mehar & others, (2016) 8 SCC 762 . Mr. Wasudeo s/o Gulabrao Dhoke vs. State of Maharashtra, (2017) AllMR(Cri) 4117. Mir Mohd. Omar & others vs. State of West Bengal, (1989) AIR SC 1785 (Paragraph 15). 8. Analysis of Section 311 Cr.P.C. made by learned Counsel for the accused as it being in two parts has it's origin in the interpretation made by Hon'ble Supreme Court regarding nature of this power in the case of Hanuman Ram (supra), and so we have no reason to doubt it or say anything differently. Considering the nature of prayer made in the application, and also the facts of this case, the application has to be viewed and we do so, as filed by invoking the discretion of the Court ingrained in the first part of Section 311. To remove any doubt, we must say, the application does not seek elicitation of any new evidence. 9. The principles governing the exercise of discretion in terms of the first part of Section 311 of Cr.P.C. are also well settled. To remove any doubt, we must say, the application does not seek elicitation of any new evidence. 9. The principles governing the exercise of discretion in terms of the first part of Section 311 of Cr.P.C. are also well settled. One of the settled principles of law is that this discretionary power of the Court cannot be exercised by the Court to allow any of the parties to a trial to fill up the lacuna in it's case. The settled law has also assigned a definite meaning to the word "lacuna" by contradistincting it with what is seen as a simple or inadvertent mistake. In Rajendra Prasad (supra), this has been succinctly explained by the Hon'ble Supreme Court. It has laid down that lacuna in the prosecution is something which is inherent weakness or latent wedge in the matrix of the prosecution case. This explanation enables us to say that if there is any such lacuna which is in the nature of inherent weakness or a real chock in prosecution case which though dormant today is almost certain to raise it's head as a veritable stumbling block in the structure of the prosecution case at a later stage, it's advantage normally must go to the accused in the trial of the case, lest-prejudice is caused to the accused. But, this would not be so when there is an oversight in the management of the prosecution case. This oversight or mistake in managing the prosecution case is curable and it is not treated as irreparable lacuna. It is also held that being human, no party could be prohibited from correcting it's errors, as long as the errors do not transgress the limits of concept of oversight and do not transform themselves into a fundamental weakness or a latent wedge in the prosecution case, so as to create for the accused an inviolable sphere of advantage. The relevant observations of the Hon'ble Apex Court, as they appear in paragraph 7, are reproduced thus : "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 party in a trial can be foreclosed from correcting, errors. 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 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." 10. So, it would be clear that what is permissible under the first part of Section 311 of Cr.P.C. is correction of a simple mistake or error which creeps in while managing the case by the prosecutor. However, if the error merges into the sphere of advantage derived by the accused or the defence from the fundamental weakness of or a veritable stumbling block in the prosecution case, the error is not curable. In other words, a mistake or an innocent error in properly managing the prosecution case is what is curable and not something which tantamounts to mismanagement of the prosecution case. Law views mismanagement as unpardonable on the principle that to mismanage is unlike human as it may portend harm another. But, the very law is indulgent to an error of improper management on the principle that to err is human as errors committed usually do not entail any harm to another. 11. In the present case, as stated earlier, no new evidence has been sought to be adduced by the prosecution through this application and the application only seeks recall of a witness already examined so as to produce on record additional evidence. So, we would have to bear in mind the principles of law which govern the discretion of the Court under first part of Section 311 of Cr.P.C. These principles could be garnered from the cases relied upon by both sides which we would now discuss. 12. So, we would have to bear in mind the principles of law which govern the discretion of the Court under first part of Section 311 of Cr.P.C. These principles could be garnered from the cases relied upon by both sides which we would now discuss. 12. In the case of Ram Mehar (supra), it has been emphasized that concept of fair trial lies at the root of the power conferred upon the Court under Section 311 of Cr.P.C. Elaborating upon this concept, the Hon'ble Apex Court has observed that the concept is not abstract nor is it a vague idea and that it is a concrete phenomenon. It has been further observed that this concept is neither rigid nor too flexible and it would all depend upon the facts and circumstances of the case which would ultimately guide the Court in implementing properly the concept of fair trial, while exercising it's discretion under Section 311 of Cr.P.C. It has been also laid down that neither the accused nor the prosecution nor the victim nor the collective society could claim any absolute predominance over the other in a criminal trial. Referring to the decision rendered in the case of Rajendra Prarsad (supra), the Hon'ble Supreme Court observed that this decision sufficiently explains what it means to be a lacuna in prosecution case which cannot be allowed to be filled up and clarifies that an error occurring due to oversight or inadvertence is not lacuna in prosecution case and, therefore, the error of oversight or inadvertence can always be rectified. 13. In the case of Iddar & others (supra), the Hon'ble Apex Court, while interpreting the scope of Section 311 of Cr.P.C. has referred to the necessity of reaching a just decision in the case. It has expatiated in paragraph 10 in the words, "there is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is not prepared to call witnesses who are known to be in a position to speak important relevant facts". This decision also highlights the underlining object of Section 311 of Cr.P.C. when it says that the object is to prevent failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of witnesses examined from either sides with the determinative factor being the essentiality of the case to arrive at a just decision. It is also held that this section does not stand only to cause benefit to the accused but it also takes appropriate care of the interest of the prosecution, as the ultimate aim is to do justice between the State and the accused. Similar are the principles of law laid down in the cases of Vijay Kumar (supra) and Zahira Habibulla (supra). 14. In the case of Mr. Wasudeo Dhoke (supra), the learned Single Judge of this Court (I being it's part) following the principles laid down in Rajendra Prasad has taken a view that there is a difference between inherent weakness i.e. lacuna in the prosecution case and a mistake or oversight in asking certain questions as a part of management of the prosecution case and the latter category of mistake or oversight would not be an inherent weakness or a fundamental lacuna in the prosecution case and, therefore, would be a curable defect. 15. In the case of Mir Mohd. Omar (supra), the Hon'ble Apex Court found no justification in the direction issued by the High Court with the aid of Section 311 of Cr.P.C. to expunge what had appeared in evidence and also High Court's direction to the trial Court to proceed afresh in the matter. The reason being that there was a great delay committed by the prosecution in raising the issue as the evidence had been closed long back and that at no stage thereafter, the prosecution had moved the trial Judge for recalling of it's witness, PW-34, for further examination. We are of the view that this case relied upon by the learned Counsel for the accused would render to us a limited help on the questions of inordinate delay in moving an application under Section 311 and as to how it be dealt with while deciding such an application. We are of the view that this case relied upon by the learned Counsel for the accused would render to us a limited help on the questions of inordinate delay in moving an application under Section 311 and as to how it be dealt with while deciding such an application. This is because ultimately only the facts and circumstances of each case determine the fate of such an application, though delay is an important parameter to ascertain as to whether or not the lapse of prosecution has resulted in handing over to the accused an irretrievable advantage of substantial character. 16. Now, in the light of the law discussed above, we have to consider this application. This application has been filed, there is not dispute, after great delay. The Medical Officer, PW-10 Dr. Shashikant sought to be recalled by this application, was examined as prosecution witness on 16/01/2018. A chance to re-examine this witness had also been given by the trial Court, but the offer was declined by the learned A.P.P. The case was thereafter finally heard on 16/05/2018 and the judgment was delivered on 23/05/2018. Till this period of time, no effort, whatsoever was made by the learned A.P.P. to get PW-10 Dr. Shashikant reexamined in the matter. 17. It is true that during examination-in-chief, PW-10 Dr. Shashikant did not describe the injuries which he so elaborately referred to in his postmortem report vide Exh.277. The description of these injuries in the postmortem report was not only in the context of the injuries externally seen, but also those internally found after dissection of the dead body. In the internal examination, as seen from the postmortem report, it was found by the Doctor that there was a cut injury to the trachea and the blood clot was seen in lumen of trachea. Such description of the injuries is technical and, therefore, it's comprehension by a layman is quite difficult. It was for this purpose especially that the description of the injuries and their minimum elaboration by the Medical Officer became a necessity. Such description, therefore, ought to have appeared in the examination-in-chief and if that had happened, it would have provided an opportunity to the defence to put appropriate questions to the Medical Officer [PW-10] during his cross-examination. It was for this purpose especially that the description of the injuries and their minimum elaboration by the Medical Officer became a necessity. Such description, therefore, ought to have appeared in the examination-in-chief and if that had happened, it would have provided an opportunity to the defence to put appropriate questions to the Medical Officer [PW-10] during his cross-examination. But, as there was no description made whatsoever of the injuries by the Medical Officer in his examination-in-chief, as a natural fall out of this failure, there was no cross-examination made by the defence on this aspect of the matter. 18. Now, we have to consider in the light of the law already discussed, as to whether such a miss on the part of the learned A.P.P. was an inadvertent mistake or a simple mistake in managing the prosecution case or a mistake amounting to an inherent lacuna or a fundamental mistake or a latent wedge in the matrix of the prosecution case and we must say, the mistake has assumed the form inherent weakness or a real wedge in prosecution case which has proved itself to be a manifest stumbling block in prosecution case, especially because of the inordinate delay and spurning by the learned A.P.P. who conducted the prosecution case of the offer given to him by the trial Court to re-examine the witness. This is evident from the noting made at the bottom of last page of deposition of PW-10 by the Court to the effect that re-examination is nil. Now, the defence has drawn out it's swords. It has made a strong attack upon failure of PW-10, Dr. Shashikant, to describe the injuries in his evidence and argued that this failure would make the postmortem report, as a document not having any substantial probative value. Such defence is made public and it yearns for an advantage in favour of the defence by relying upon the law laid down in the case of Mohd. Iqram. This law says that the mistake of the present nature causes a considerable damage to the prosecution case. This is the view of the Hon'ble Apex Court. Can we then say that the aforesaid lapse was only a simple lapse in managing the present prosecution case? Alternatively, can we then say that it is a lapse amounting to fundamental error or a latent wedge in the matrix of the present prosecution case? This is the view of the Hon'ble Apex Court. Can we then say that the aforesaid lapse was only a simple lapse in managing the present prosecution case? Alternatively, can we then say that it is a lapse amounting to fundamental error or a latent wedge in the matrix of the present prosecution case? The answer would naturally be in the negative to the first question and in the affirmative to the alternate question, for the error has merged itself into the sphere of inviolable advantage to the accused, which cannot be now allowed to be snatched away from the accused or otherwise it would be an unfair trial from the view point of one of the parties to the trial. A just decision is possible only when odds are evenly balanced and trial is made fair from the perspective of both sides. 19. To explain further, if the application is allowed and following it the Medical Officer, PW-10 Dr. Shashikant, is re-examined by the Court and he describes now the injuries in his evidence, the consequence would be rejoice by the prosecution and remorse for the accused. The advantage the accused would otherwise be getting in view of the law laid down by the Hon'ble Apex Court in Iddar & others (supra) would be washed out and it is here a serious prejudice would be caused to the defence of the accused. The object of the power under Section 311 of Cr.P.C. is not to let a party do something which would upset the fine balance between the State, the prosecution and the collective society on the one hand and the accused on the other. The object is to reach a just decision and that means to discover the truth or come to a position as near the truth as humanly possible by, as held by the Hon'ble Apex Court in the case of Iddar & others (supra), lawful means. The expression "lawful means" only indicates such means, as would allow either of the parties to prove the necessary facts within the limits of law and not by stretching the limit law as in that case what may occur is prejudice to the other side, and this is also the concept of a just decision upon a fair trial. The expression "lawful means" only indicates such means, as would allow either of the parties to prove the necessary facts within the limits of law and not by stretching the limit law as in that case what may occur is prejudice to the other side, and this is also the concept of a just decision upon a fair trial. So, there are inherent limitations to exercise of power of the Court to allow additional evidence under Section 311 of Cr.P.C. and these limitations are about maintaining a fair balance between all the stakeholders and ensuring that no prejudice is caused to any of them. After all, idea of truth in a criminal case is what Court determines by equipoising between too many variables involved in the case, and not something which is eternal or divine. 20. In the result, we are of the opinion that this application cannot be allowed and it is rejected accordingly.