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Sunday, July 27, 2014

Sec.311 Cr.P.C . - Recalling of I.O. for further examination - at the time of cross examination it was came to light that the I.O . recorded a statement of deceased - as the statement of deceased not filed in court along with charge sheet - trial court dismissed the same at it is highly belated stages - High court allowed the revision and set aside the trial court order on the ground that since the accused know pretty well about the record of statement of deceased - no prejudice would be caused to him - on appeal - Apex court held that We must, however, clarify 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. We also make it 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.In the result the appeal is dismissed.= Mannan Sk & Ors. ... Appellants Vs. State of West Bengal & Anr. … Respondents = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41738

 Sec.311 Cr.P.C . - Recalling of I.O. for further examination - at the time of cross examination it was came to light that the I.O . recorded a statement of deceased - as the statement of deceased not filed in court along with charge sheet - trial court dismissed the same at it is highly belated stages - High court allowed the revision and set aside the trial court order on the ground that since the accused know pretty well about the record of statement of deceased - no prejudice would be caused to him -  on appeal - Apex court held that We must, however, clarify  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.   We  also make it 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.In the result the appeal  is  dismissed.=


PW15-SI  Dayal
Mukherjee, the Investigating Officer, was examined on 18/2/2011.
He was re-examined on 17/5/2011.
He stated  in  his  evidence  that  he  had  recorded
deceased Rupchand Sk’s statement at the scene  of  offence.
In  the  cross-
examination he stated that he had recorded one page  statement  of  deceased
Rupchand Sk.  This statement was not brought on record.

5.     One  month  thereafter  on  16/6/2011  the   prosecution   moved   an
application for recalling PW15-SI Dayal Mukherjee  because  the  prosecution
wanted to bring on record statement of deceased Rupchand  Sk  which  it  had
inadvertently omitted to do.   
Needless to say that it  is  the  prosecution
case that after death of Rupchand Sk the said  statement  became  his  dying
declaration.

6.     The  trial  court  vide  order  dated  22/6/2011  rejected  the  said
application.  
The trial court observed that the case was  at  the  stage  of
argument and 
no explanation was given by  the  prosecution  as  to  why  the
statement of  deceased  Rupchand  Sk  was  not  brought  on  record  by  the
Investigating Officer.  
The trial court noted that PW15-SI  Dayal  Mukherjee
was examined on 18/2/2011 and re-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[1] and Mohan Lal Shamji  Soni  v.
Union of India[2].  
The trial court observed that  re-examination  of  PW15-
SI Dayal Mukherjee is not essential for the just decision of the case.
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.=

Apex court held that We must, however, clarify  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.   We  also
make it 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.

21.   In the result the appeal  is  dismissed.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41738

                                                               REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1307 OF 2014
       [Arising out of Special Leave Petition (Crl.) No.8395 of 2012]


Mannan Sk & Ors.                        ...        Appellants

Vs.

State of West Bengal & Anr.             …          Respondents


                               J U D G M E N T

(SMT.) RANJANA PRAKASH DESAI, J.

1.    Leave granted.

2.    In this appeal order dated 11/5/2012  passed  by  the  High  Court  of
Calcutta is under challenge.  By the impugned order the High Court  reversed
the trial court’s order which had rejected  the  application  filed  by  the
prosecution under Section 311 of the Code of Criminal Procedure, 1973   (for
short, ‘the code’) to recall the Investigating Officer.

3     A petty altercation over a tape recorder resulted in a major  incident
in which bombs were hurled at Rupchand Sk – the father of  PW8-Nurul  Islam.
Incident occurred on 13/12/1992.  Rupchand Sk  suffered  grievous  injuries.
He was taken to a local hospital. From there he was  shifted  to  Berhampore
hospital where he breathed his last. On 14/12/1992 a  complaint  was  lodged
by the son of deceased Rupchand  Sk  -  PW8-Nurul  Islam  with  Raghunathpur
Police Station on the basis of which FIR was registered.  In  the  FIR  PW8-
Nurul Islam named nine persons.  Initially the  case  was  registered  under
Sections 447, 326 read with Section 34 of the Penal Code and Sections 3  and
4 of the Explosives  Substances  Act.   After  the  death  of  Rupchand  Sk,
Section 304 of the Penal Code was added.

4.    After the  charges  were  framed  the  trial  began.    PW15-SI  Dayal
Mukherjee, the Investigating Officer, was examined on 18/2/2011.  He was re-
examined on 17/5/2011. He stated  in  his  evidence  that  he  had  recorded
deceased Rupchand Sk’s statement at the scene  of  offence.  In  the  cross-
examination he stated that he had recorded one page  statement  of  deceased
Rupchand Sk.  This statement was not brought on record.

5.     One  month  thereafter  on  16/6/2011  the   prosecution   moved   an
application for recalling PW15-SI Dayal Mukherjee  because  the  prosecution
wanted to bring on record statement of deceased Rupchand  Sk  which  it  had
inadvertently omitted to do.   Needless to say that it  is  the  prosecution
case that after death of Rupchand Sk the said  statement  became  his  dying
declaration.

6.     The  trial  court  vide  order  dated  22/6/2011  rejected  the  said
application.  The trial court observed that the case was  at  the  stage  of
argument and no explanation was given by  the  prosecution  as  to  why  the
statement of  deceased  Rupchand  Sk  was  not  brought  on  record  by  the
Investigating Officer.  The trial court noted that PW15-SI  Dayal  Mukherjee
was examined on 18/2/2011 and re-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[1] and Mohan Lal Shamji  Soni  v.
Union of India[2].  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 that the incident took  place  22  years  back.
The statements of witnesses were recorded under  Section  161  of  the  Code
within a week from the date of  incident.   The  Investigating  Officer  was
examined and cross-examined.  The case  is  set  for  final  arguments  and,
therefore, it would  be  unjust  and  unfair  to  recall  the  Investigating
Officer.  His recall would cause serious prejudice to the appellants.   This
is clearly an attempt to fill-up the lacuna which  should  not  be  allowed.
Counsel further submitted that PW15-SI Dayal Mukherjee has retired from  the
service in the year 2010 and he is presently about  68  years  of  age.   He
might have  forgotten  the  entire  episode.    It  will  be  easy  for  the
complainant to tutor him.  Counsel submitted that Section 311  of  the  Code
is not meant for putting the accused in a  disadvantageous  position.   This
would lead to miscarriage of justice. In support of his submissions  counsel
relied on Chandran v. State of Kerala[3],   State  of  Rajasthan  v.  Daulat
Ram, Mohan Lal Shamji Soni v. Union of India & Ors,  Mishrilal and ors.   v.
 State of M.P. and ors[4],   Mir Mohammad Omar and ors.   v.  State of  West
Bengal[5].

9.    Mr. Anip Sachthey, learned counsel appearing for  the  State  of  West
Bengal on the other hand submitted that the application was  made  just  one
month after the re-examination of  the  Investigating  Officer.   Therefore,
there is no delay in recalling him.  Statement of deceased Rupchand  Sk  was
not exhibited due to inadvertence and  hence for just decision of  the  case
it is essential to recall  the  Investigating  Officer.   Counsel  submitted
that this would not amount to filling-up the  lacuna.   In  support  of  his
submissions  counsel  relied  on  P.  Sanjeeva  Rao   v.  State  of   Andhra
Pradesh[6], Hanuman Ram v. State of Rajasthan & Ors[7]., Rajendra Prasad  v.
Narcotic Cell[8] and Mohanlal Shamji Soni

10.   The aim of every court is to discover truth.  Section 311 of the  Code
is one of many such provisions of the Code which strengthen the  arms  of  a
court in its effort to ferret out the truth by procedure sanctioned by  law.
 It is couched in very wide terms.  It empowers the court at  any  stage  of
any inquiry, trial or other proceedings under the Code to summon any  person
as a witness or examine any person in attendance,  though  not  summoned  as
witness or recall and re-examine already 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 decide whether the prayer for recall is genuine.

11.   Rather than referring to all the judgments which are cited before  us,
we would  concentrate  on  Mohanlal  Soni  which  takes  into  consideration
relevant  judgments  on  the  scope  of  Section  311  and  lays  down   the
principles.  Mohanlal Soni is followed  in  all  subsequent  judgments.   In
Mohanlal Soni this Court was considered the scope  of  Section  540  of  the
Code of Criminal Procedure, 1898  (  the  old  code)  which  is  similar  to
Section 311 of the Code.  This Court observed that it is a cardinal rule  in
the law of evidence that the  best  available  evidence  should  be  brought
before the court to prove a fact or  the  points  in  issue.   The  relevant
observations of this Court are as under:

“… … …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  whereunder  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  re-examine  any
person already examined who are expected to be able to throw light upon  the
matter in dispute; because if judgments happen to be rendered  on  inchoate,
inconclusive and speculative presentation of  facts,  the  ends  of  justice
would be defeated.”


      This Court further observed as under:

“… … … Though Section 540 (Section 311 of the new Code) is,  in  the  widest
possible terms and calls for no limitation, either with regard to the  stage
at which the powers of the court should be exercised, or with regard to  the
manner in which they should be exercised, that  power  is  circumscribed  by
the principle that underlines Section 540, namely, evidence to  be  obtained
should appear to the court essential to a  just  decision  of  the  case  by
getting at the truth by all lawful means. Therefore, it should be  borne  in
mind that the aid of the section should be invoked only with the  object  of
discovering relevant facts or obtaining proper proof of  such  facts  for  a
just  decision  of  the  case  and  it  must  be  used  judicially  and  not
capriciously or arbitrarily because any improper or capricious  exercise  of
the power may lead to undesirable results. Further it is incumbent that  due
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
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.”


13.   Reference must also be made to  the  observations  of  this  Court  in
Zahira Habibulla H. Sheikh  and anr.   v.    State  of  Gujarat  and  ors[9]
where this Court described the scope of Section 311 of the Code as under:

“Object of the Section is to  enable  the  court  to  arrive  at  the  truth
irrespective of the fact that the prosecution or the defence has  failed  to
produce some evidence which is necessary for a just and proper  disposal  of
the case.  The power is exercised and the evidence is  examined  neither  to
help the prosecution nor the defence, if  the  court  feels  that  there  is
necessity to act in terms of Section 311 but only to subserve the  cause  of
justice and public interest.  It is done  with  an  object  of  getting  the
evidence in aid of a just decision and  to uphold the truth.”

14.    If we view the present case in light of the above judgments, we  will
have to sustain the High Court’s order. PW15-SI Dayal  Mukherjee  stated  in
the court that he had  recorded  the  statement  of  deceased  Rupchand  Sk.
Thus, this fact was known to the defence.   He  was  cross-examined  by  the
defence. Inadvertently,  the  said  statement  was  not  brought  on  record
through PW15-SI Dayal Mukherjee.  Rupchand Sk died after the said  statement
was recorded.   The said statement, therefore,  became  very  vital  to  the
prosecution. It is obvious that the prosecution  wants  to  treat  it  as  a
dying declaration.  Undoubtedly, therefore, it is an essential  material  to
the just decision of the case.  Though, the fact of the  recording  of  this
statement is deposed to by PW15-SI Dayal Mukherjee, since due  to  oversight
it was not brought on record,  application was made  under  Section  311  of
the Code praying for recall of PW15-SI  Dayal  Mukherjee.   This  cannot  be
termed as an inherent weakness or a  latent  wedge  in  the  matrix  of  the
prosecution  case.   No  material  is  tried  to   be  brought   on   record
surreptitiously to fill-up the lacuna.   Since the accused knew that such  a
statement was recorded by PW15-SI Dayal Mukherjee, no prejudice can be  said
to have been caused to the accused, who will undoubtedly  get  a  chance  to
cross-examine PW15-SI Dayal Mukherjee.

15.   It is true that PW15-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 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 application made after  a  gap  of  22  years
must be rejected.  This submission must be rejected  because  PW15-SI  Dayal
Mukherjee was re-examined on 17/5/2011 and application for  his  recall  was
made just one month thereafter.  It is  true  that  the  incident  is  dated
13/12/1992 and the trial commenced  in  2001.   These  are  systemic  delays
which  are  indeed  distressing.   But  once  the  trial   began   and   the
Investigating Officer was re-examined on 17/5/2011, the prosecution made  an
application for recall just one month thereafter.  There  was  no  delay  at
that stage. The submissions that PW15-SI  Dayal  Mukherjee  has  grown  old;
that his memory must not be serving him right; that he can  be  tutored  are
conjectural in nature.  In any case, the accused  have  a  right  to  cross-
examine PW15-SI Dayal Mukherjee.  The accused are, therefore, not placed  in
a disadvantageous position.

17.    We must now turn to the judgments cited by the appellants.  In  State
of Rajasthan v. Daulat Ram this Court was dealing with  an  appeal  from  an
order of acquittal.  The prosecution had not proved beyond reasonable  doubt
that the opium seized was the opium which was sent to  the  public  analyst.
At the trial the prosecution had made an application under  Section  540  of
the old Code (Section 311 of the Code) for  summoning  three  persons  under
whose custody the seized samples were kept.  It was rejected  by  the  trial
court.  An application  was  made  before  the  High  Court  for  additional
evidence  which  was  later  withdrawn.   This  Court   commented   on   the
vacillating approach of the State and observed that the  prosecution  should
not be allowed to fill-up the lacunae left at the trial,  at  the  appellate
or  revisional  stage.  This  case  turns  on  its  own  facts  and  has  no
application to the present case.

18.    Mishrilal, on which reliance is placed by the  appellants,  has  also
no application to this case.  In Mishrilal a witness was examined and cross-
examined in a murder trial on the same day.  In Juvenile  Court  where  some
of the juveniles were tried, he gave evidence subsequently.  He stated  that
he was not aware as to who attacked him.  He was recalled  by  the  Sessions
Court and confronted with the statement given by  him  before  the  Juvenile
Court on the basis of which the accused were acquitted.  This Court did  not
approve of  the  procedure  adopted  by  the  Sessions  Court.   This  Court
observed that a witness could be confronted only with a  previous  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  justice  must  not  be
allowed to suffer because of the oversight  of  the  prosecution.   We  also
make it 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.

21.   In the result the appeal  is  dismissed.  Needless  to  say  that  the
interim  orders  passed  by  this  Court  on  15/10/2012,   03/05/2013   and
27/01/2014 staying  the  impugned  order  dated  11/05/2012  passed  by  the
Calcutta High Court in CRR No. 2385 of 2011 are vacated.   The  trial  court
shall proceed with  the  case  and  ensure  that  it  is  concluded  at  the
earliest.
                                                               ………………………….J.
                                                     [Ranjana Prakash Desai]

                                                               ………………………….J.
                                                               [N.V. Ramana]
New Delhi
July 3, 2014
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[1]    AIR 1980 SC 1314
[2]    AIR 1991 SC 1346
[3]    (1985) Cr L.J. 1288
[4]    2005(10) SCC 701
[5]    1989 (4) SCC 436
[6]    2012(7) SCC 56
[7]    2008(15) SCC 652
[8]    1999(6) SCC 110
[9]    (2004) 4 SCC 158

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