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TMI Blog2014 (7) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... call or re- examination of the witness is necessary. Since the power is wide it s exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. The impugned order merits no interference - It is clarified that oversight of the prosecution is not appreciated by us. But cause of justice must not be allowed to suffer because of the oversight of the prosecution. It is made clear that whether deceased Rupchand Sk s statement recorded by PW15-SI Dayal Mukherjee is a dying declaration or not, what is its evidentiary value are questions on which we have not expressed any opinion. If any observation of ours directly or indirectly touches upon this aspect, we make it clear that it is not our final opinion. The trial court seized of the case shall deal with it independently. Appeal dismissed. - CRIMINAL APPEAL NO.1307 OF 2014 [Arising out of Special Leave Petition (Crl.) No.8395 of 2012] - - - Dated:- 3-7-2014 - DESAI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-examined on 17/5/2011. According to the trial court if the prosecution is allowed to recall PW15-SI Dayal Mukherjee that would enable the prosecution to fill-up the lacuna. The trial court relied on State of Rajasthan v. Doulat Ram[AIR 1980 SC 1314] and Mohan Lal Shamji Soni v. Union of India[AIR 1991 SC 1346]. The trial court observed that re-examination of PW15- SI Dayal Mukherjee is not essential for the just decision of the case. 7. Being aggrieved by this order the complainant filed an application under Section 401 read with Section 482 of the Code in the High Court. The High Court reversed the trial court s order. The High Court observed that non-exhibiting of the statement of deceased Rupchand Sk was mistake of the prosecution and no advantage can flow from the said mistake to the accused. The High Court further observed that existence of the statement was known to the accused and, hence, no prejudice would be caused to them. The said order is challenged in this appeal by the appellants-accused. 8. We have heard learned counsel for the parties at some length. We have perused their written submissions. Mr. Pijush K. Roy, learned counsel for the appellants submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady examined witness. The second part of the Section uses the word shall . It says that the court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential to the just decision of the case. The words essential to the just decision of the case are the key words. The court must form an opinion that for the just decision of the case recall or re- examination of the witness is necessary. Since the power is wide it s exercise has to be done with circumspection. It is trite that wider the power greater is the responsibility on the courts which exercise it. The exercise of this power cannot be untrammeled and arbitrary but must be only guided by the object of arriving at a just decision of the case. It should not cause prejudice to the accused. It should not permit the prosecution to fill-up the lacuna. Whether recall of a witness is for filling-up of a lacuna or it is for just decision of a case depends on facts and circumstances of each case. In all cases it is likely to be argued that the prosecution is trying to fill-up a lacuna because the line of demarcation is thin. It is for the court to consider all the circumstances and dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. 12. While dealing with Section 311 of the Code in Rajendra Prasad this Court explained what is lacuna in the prosecution as under: 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 crimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 steps which the trial court permitted in this case for resummoning certain witnesses cannot therefore be spurned down or frowned at. 16. It was strenuously contended that the incident had taken place on 13/12/1992 and, therefore, the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s statement made by him. The day on which he was first examined in the Sessions Court, there was no such previous statement. This Court observed that the witness must have given some other version before Juvenile Court for some extraneous reasons. He should not have been given an opportunity at a later stage to completely efface the evidence already given by him under oath. It is the wrong procedure and attempt to efface evidence which persuaded this Court to observe that once the witness was examined in-chief and cross-examined fully such witness should not have been recalled and re- examined to deny the evidence which he had already given in the court even though he had given an inconsistent statement before any other court subsequently. It is pertinent to note that this Court did not discuss Section 311 of the Code. 19. Mir Mohd. Omar has no application to this case as it deals with a totally different fact situation. In that case this Court has not considered Section 311 at all. 20. In the ultimate analysis we must record that the impugned order merits no interference. We must, however, clarify that oversight of the prosecution is not appreciated by us. But cause of justi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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