High Court
Case Details
Crl.A. 205/2007 BEFORE THE HON’BLE MR.JUSTICE I.A. ANSARI THE HON’BLE MR. JUSTICE P.K. MUSAHARY Aggrieved by the judgment and order, dated 31.08.2007, passed, in Sessions Case No.170 of 2005, by the learned Additional Sessions Judge, FTC, Dibrugarh, convic ting him under Sections 498A and 304B IPC and sentencing him to suffer, for his conviction under Section 498A IPC, rigorous imprisonment for two years and pay f ine of rupees one thousand and, in default of payment of fine, suffer rigorous i mprisonment for a further period of two months and also sentencing him to suffer , for his conviction under Section 304B IPC, imprisonment for life, with directi on that both the sentences shall run together, the accused, Bolin Bora, has, as a convicted person, preferred this appeal. 2. The case of the prosecution, as unfolded at the trial, may, in brief, be described as under: (i) Deceased, Pompi Bora, was wife of accused Bolin Bora, who used to li ve with Pompi Bora (since deceased) at the residential quarter of his father, In drajit Bora, situated at Police Reserve, Dibrugarh. Accused, Bolin Bora, demande d a sum of Rs.50,000/- from Pompi’s parents and as Pompi’s parents, being poor, could not meet the demand, which had been so raised by accused Bolin Bora, accus ed Bolin Bora, on 28.10.2004, at about 2 pm, poured kerosene on Pompi and set he r on fire. With the burn injuries, so sustained by Pompi, she was carried by acc used Bolin Bora to Health Line Hospital, Dibrugarh. She was, then, shifted to, a nd treated at, Astha Hospital, Dibrugarh. At a latter stage, Pompi was moved to, and treated at, Assam Medical College and Hospital, Dibrugarh (in short, AMCH). While Pompi was under treatment at Health Line Hospital, Dibrugarh, an informat ion, in writing, was given to the Officer-in-Charge, Dibrugarh Police Station, b y the Manager, Health Line Hospital, Dibrugarh, that Pompi had been admitted, on 28.10.2004, with burn injury and that the management of the hospital had been i
Facts
nformed that the burn was caused, because of bursting of a stove. (ii) On receiving the information, so given by the management of Health Line Hos pital, Dibrugarh, a direction was given by Officer-in-Charge, Dibrugarh Police S tation, to Sub-Inspector of Police, Jogendra Nath Saikia, to make enquiry, where upon Sub Inspector of Police, Jogendra Nath Saikia (hereinafter referred to as t he Investigating Officer), having made enquiry and also having recorded the stat ement of injured Pompi, lodged a written information (Ext.2) with the Officer-in -Charge, Dibrugarh Police Station, to the effect, inter alia, that Pompi had bee n subjected by accused Bolin Bora to cruelty, both physically and mentally, for one reason or another since the time of her marriage with the accused and, at la st, on 28.10.2004, at around 2 pm, he had set fire to her body in a pre-planned manner with intention to kill her. (iii) Treating the information, which had been so lodged by the Investigating Of ficer, S.I. Jogendra Nath Saikia, as the First Information Report (in short, ’FI R’), Dibrugarh Police Station Case No.566/2004, under Sections 498A/307/109/34 I PC, was registered against accused Bolin Bora and his parents. During (In) the c ourse of investigation, Pompi’s statement was recorded not only by the Investiga ting Officer, but also by the doctor and an Executive Magistrate. While remainin g under treatment, at AMCH, Dibrugarh, Pompi succumbed to the burn injuries on 1 6.12.2004. Inquest was, then, held over her dead body and inquest report (Ext.4) was prepared. On completion of investigation, a charge-sheet (Ext.3) was lodged , under Sections 498A/304B/109/34 IPC, against accused Bolin Bora and both his p arents, Indrajit Bora and Minu Bora. 3. At the trial, when charges, under Sections 498A and 304B read with Secti on 34 IPC, were framed against the three accused, namely, Bolin Bora, Indrajit B ora and Minu Bora, they all pleaded not guilty thereto. 4. In support of their case, prosecution examined altogether 12 (twelve) wi tnesses including the Investigating Officer. The three accused were, then, exami ned under Section 313 Cr.PC. In their examinations aforementioned, all the accus ed denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that all the accused were innoc ent and that Pompi had herself poured kerosene on her person and set herself on fire. No evidence was adduced by the defence. 5. Having found the evidence on record not adequate to warrant conviction o f the parents of accused Bolin Bora, the learned trial Court acquitted both the parents of accused Bolin Bora of the charges, which had been framed against them . The learned trial Court, however, having found accused Bolin Bora guilty of th e offences, with which he stood charged with, convicted him accordingly under Se ctions 498A and 304B IPC and passed sentences against him as mentioned above. Ag grieved by his conviction and the sentences, which have been passed against him, accused Bolin Bora, as the convicted person, has preferred this appeal.
Legal Reasoning
From the position of law laid down in Shakila Abdul Gafar Khan (supra), it becomes transparent that a Court is not a tape recorder, which has to merely record evidence. Far from this, when the Court’s object is to do justice, it ca nnot overlook the necessity to reach the truth. Hence, while a Court cannot assu me the role of a party to a case, it nevertheless has the duty to remove vaguene ss or obscurity from a witness’s evidence so that the evidence becomes intelligi ble to a Court of law. 29. The judicial principles regarding the proactive role of Judge, as laid down in the case of Shakila Abdul Gafar Khan (supra), and in Rajendra Prasad (su pra) have been invoked in the case of Pabitra Kumar Das vs State of Assam, repor ted in 2008 (suppl) GLT 589, as well in the case of Haren Chandra Sarma vs State of Assam, reported in 2008 GLT 482. The Court, while examining the scope of sec tion 311 CrPC, held as follows: (cid:28)10. Bearing in mind the ingredients of the offence under Section 494, IPC, let me, now, turn to the scope of Section 311, Code of Criminal Procedure, its aims and objectives. For the purpose of a clear understanding of what Section 311 aim s at conveying, appropriate it is that the provisions, embodied in Section 311, are carefully, taken note of Section 311 is, therefore, reproduced hereinbelow- 311. Power to summon material witness, or examine person present: Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summone d as a witness, or recall and re-examine any person already examined; and the co urt shall summon and examine or recall and re-examine any such person if his evi dence appears to be essential to the just decision of the case. 11. A patient reading of the Section 311, Code of Criminal Procedure, clearly sh ows that this Section is divided into two parts. While the word, used in the fir st part, is, \may\, the word used, in the second part, is, \shall\, ft would, th erefore, logically follow that the first part of Section 311, Code of Criminal P rocedure is permissive in nature and gives a discretion to a criminal court to a ct, at any stage, of enquiry, trial or other proceeding, in one of the three way s, namely, (1) to summon any person as a witness, or (2) to examine any person in attendance, though not summoned as a witness, or (3) to recall and re-examine any person already examined. 12. The second part of Section 311 is, however, mandatory in nature and casts an obligation on the court (i) to summon and examine or (ii) to recall and re-exam ine any such person if his evidence appears to be essential to the just decision of the case. 13. The language, employed in Section 311, clearly shows that this Section is co uched in widest possible terms and do not limit the discretion of the court in a ny manner. However, the wider the power, more cautious shall be the exercise the reof. No exercise of power, in a judicial proceeding, can be arbitrary and, more so, the power to call or recall a witness. Whereas the first part of Section 31 1, as already indicated above, gives a discretion to the court to call, recall a nd re-examine any person as a witness, the second part of this section does not really give any discretion to the court; rather, it clarifies that if a court fo rms the view, in the facts of a given case, that the evidence of the person, who is sought to be called, recalled or re-examined, is essential to the just decis ion of the case, it would be mandatory for the court to call, re-call or re-exam ine a person as a witness. This mandatory exercise of power can also be to obtai n fresh evidence provided that the court forms a view, as indicated hereinbefore , that bringing of such fresh evidence on record is essential to the just decisi on of the case. 14. Though the law requires the parties to produce, before the court, the best a vailable evidence, the fact remains that even in a criminal trial, prosecution a s well as defence has the right to choose their witness or witnesses and also as to what evidence they would adduce. Nonetheless, they are bound to adduce the b est available evidence. The court has no power to compel either the prosecution or the defence to examine any particular witness. This embargo placed on the pow ers of the court, i.e., the limitation of not directing either the prosecution o r the defence to examine any particular witness as their witness, is sought to b e balanced by the Legislature with the help of the provisions contained in Secti on 311 inasmuch as the Legislature has, with the help of Section 311, empowered the criminal court to call, recall or reexamine any person as witness. The only rider, which Section 311 attaches to the exercise of this power, is that a crimi nal court cannot call, recall or re-examine any person as witness, unless examin ation of such a person is, in the opinion of the court, essential for a just dec ision of the case. If, however, the court is of the view that evidence of a part icular witness is necessary for reaching a just decision of the case, the court, either on its own or on the application of any of the parties concerned, call, recall or re-examine any witness as long as it does not cause prejudice to any o f the parties concerned or does not give an undue advantage to any of such parti es. 15. This kind of power, which Section 311 vests in a court, is not peculiar to t he criminal .law inasmuch as similar provisions have been made even in respect o f civil courts in the form of Order X, Rule 2, Order X, Rule 14 and Order XVIII, Rule 17. Even Section 165 of the Evidence Act recognizes court’s power to put a ny questions any witness, at any time, which appears to the Judge as necessary f or just decision of the case or in order to discover or obtain proof of relevant facts. 16. I may pause here to point put that a trial Judge is net merely a recording m achine of evidence given by the witnesses nor can he be a silent spectator to th e evidence produced by the parties. Though a trial Judge must not drop the mantl e of a Judge and assume the role of a prosecutor or a defence counsel, the fact remains, that his duty is to reach the truth and Section 165 of the Evidence Act gives the Judge adequate power and authority to put any question to any witness at any time - be it during the course of examination-in-chief or cross-examinat ion or at the end of any such examination or re-examination which, to the Judge, appears to be necessary for a just decision of the case and in order to discove r or obtain proof of relevant fact. Though a Judge must not usurp the function o f a counsel, he needs to participate, in the trial, in such a manner as would en sure that the evidence, adduced by the parties, is legal and such evidence becom es clear, Complete and intelligible. A Judge, who merely sits at a trial and rec ords evidence without caring to conduct examination of the witnesses in order to ensure that evidence on record becomes intelligible, must1 be held to have not performed his duty as warranted by law. A Judge is not merely an observer. It is his duty to explore, within permissible limits, the truth. If, therefore, a Jud ge finds that the examination of a witness is not being conducted in such a way as to unfora complete truth, it is not only right for the Judge, but his duty to intervene and put such questions as may be warranted and permissible within the ambit of Section 165. A Judge cannot behave like a passive agent, when a case i s tried before him. He has the power and also the duty to question the witnesses in order to elicit relevant materials. A case cannot be allowed to suffer for f ailure of any of the parties to elicit relevant materials from a witness. It is to discover the truth and bring, on record, the relevant facts that a Judge has been vested with the power to put questions under Section 165. It is with this o bject in view that the Judge has been vested with the power to call any witness or recall any witness at any time suo motu, of at the instance of any of the par ties if it becomes necessary for a just decision of the case. If the prosecution omits to bring out any relevant fact or the defence elicits from a witness, in the cross-examination, a statement which is obscure or incomplete, the defence d oes not acquire (the Judge must bear in mind) a vested right in such limited cro ss-examination. It is the duty of the Judge to remove such obscurity or incomple teness by putting appropriate question. In such a case. It is, rather, the duty of the Judge, conducting the trial, to elicit from the witness complete informat ion so that the evidence given by him or her becomes clear and intelligible, tho ugh his putting of questions cannot be in a manner as if the witness is under cr oss-examination nor can such examination be aimed at destroying or diluting the effect of the cross-examination of the witness by the defence. It is for this re ason that a court shall not put, in exercise of its powers under Section 165, le ading question or put words into the mouth of the witness. (cid:29) 30. What crystallizes from the above discussion is that the conviction of th e accused-appellant rests on materials, which were not full and complete. In su ch circumstances, there can be no escape from the conclusion that if the said tw o ’dying declarations’, which had been allegedly made to the Investigating Offic er and the Executive Magistrate, are not brought on record, it may cause prejudi ce to either party, i.e., the prosecution and the defence, inasmuch as it is not possible, in the absence of the said two alleged ’dying declarations’, to deter mine and hold confidently as to what Pompi had stated to the Investigating Offic er or to the Executive Magistrate and whether all her statements were consistent and in favour of the prosecution or whether any of these three allegedly record ed ’dying declarations’ was in favour of the defence and the veracity as well as value thereof. 31. It needs to be acknowledged and borne in mind that a ’dying declaration’ needs to be scrupulously examined by the Court, which must remain alive to all the attendant circumstances at the time, when the ’dying declaration’ is claimed to have come into existence. When more than one ’dying declaration’ are found to have been made, the Court cannot rely on the ’dying declarations’, which go i n favour of the prosecution, and ignore the ones, which may be in favour of the defence. Without assigning any reason as to why a ’dying declaration’ has been accepted as a statement made by the deceased, whose cause of death is in questio n, no reliance can be placed by the Court on a ’dying declaration’ of a deceased , which goes in favour of the prosecution, by ignoring the other ’dying declarat ions’, which may go in favour of the defence. Reference may be made, in this re gard, to the case of Puran Chand v. State of Haryana (2010 Crl. L. J. 3423), whe rein, while considering a Court’s role in dealing with more than one ’dying decl arations’, the Supreme Court held as under: (cid:28)11............... When there are more than one dying declarations, the intrinsi c contradictions in those dying declarations are extremely important. It cannot be that a dying declaration, which supports the prosecution alone can be accept ed, while the other innocuous dying declarations have to be rejected. Such tren d will be extremely dangerous. However, the Courts below are fully entitled to act on the dying declarations and made them the basis of conviction, where the d ying declarations pass all the above tests. (cid:29) (Emphasis supplied) 32. Because of what have been discussed and pointed out above, we are clearl y of the view, if we may reiterate, that if all the relevant materials are not b rought on record, the Court would not be able to do justice. In other words, if all the materials are not brought on record, it would cause serious miscarriage of justice. 33. Left with no alternative, therefore, we set aside the conviction and the sentence, passed against the accused-appellant by the judgement and order under appeal, and remand the case to the learned trial Court for its decision, in acc ordance with law, after having ensured that all relevant materials, in the light of the preceding discussions, are brought on record. 34. We make it clear that though we have set aside the conviction and senten ce of the accused-appellant, we are firmly of the view that the accused-appellan t must remain in the prison until the trial is completed. Ordered accordingly. 35. To the extent, as indicated above, this appeal stands allowed. The lear ned trial is directed to deal with the case expeditiously and dispose of the sam e in accordance with law. 36. Send back the LCR.
Arguments
6. pellant, and Mr. K.A. Mazumdar, learned Additional Public Prosecutor, Assam. We have heard Mr. A.K. Bhattacharjee, learned Senior counsel, for the ap 7. While considering the present appeal, it needs to be noted that the info rmation, given by the Manager, Health Line Hospital, Dibrugarh to the Officer in Charge, Dibrugarh Police Station, led to an inquiry and, in the course of inqui ry, the statement of Pompi Bora was recorded. On the basis of information gather ed from the statement, the Inquiring Police Officer, namely, Jogendra Nath Saiki a, a Sub-Inspector of Police, lodged the FIR, which is Ext 2. It, therefore, bec omes necessary to clear the doubt as to which of the information, the one, given by the Manager of the Hospital, or the one lodged by the Inquiry Officer, shall be treated as FIR. 8. A similar question arose in the case of Dhananjoy Chatterjee vs State of West Bengal, reported in 1994 SCC (2) 220, wherein the Court was required to de cide the source of first information. The relevant observations, made in Dhanan joy Chatterjee (supra), read as under: (cid:28)8. Before we proceed to consider various circumstances, we would like ’to deal with one finding of the High Court relating to the first information report. The High Court found that after the telephonic message had been sent to the police station, and the investigating officer after making an entry in the GD rushed to the scene of occurrence to record the statement of Yashmoti PW 3, that statemen t of PW 3 could not be treated as a first information report and that the \telep honic message as recorded in the GD\ was the first information report and the st atement of PW 3 was only a statement recorded during the investigation of the ca se and not the FIR. In the words of the High Court: \We are therefore, of the opinion that the state ment of PW 3 recorded by the Police after the investigation had already commence d could not be treated as the first information report.\ 9. We are unable to agree with the opinion of the High Court. The cryptic teleph onic message received at the police station from Nagardas PW 4 had only made the police agency to rush to the place of occurrence and record the statement of Ya shmoti PW 3 and thereafter commence the investigation as was admitted by the inv estigating officer in his testimony which testimony was not challenged during th e cross-examination of the investigating officer. The High Court failed to notic e that the vague and indefinite information given on the telephone which made th e investigating agency only to rush to the scene of occurrence could not be trea ted as a first information report under Section 154 of the CRPC. The unchallenge d statement of the investigating officer that he commenced the investigation onl y after recording the statement of PW 3 Yashmoti unmistakably show, that it was that statement which alone could be treated as the first information report. The High Court fell in error in observing that the statement of PW 3 Yashmoti was r ecorded \after the investigation had already commenced\. There is no material on the record for the above opinion of the High Court. The cryptic telephonic mess age given to the police by Nagardas PW 4 was only with the object of informing t he police so that it could reach the spot. The investigation in the case only st arted after the statement of PW 3 Yashmoti was recorded. Though initially Mr Gan guli did try to support the finding of the High Court but in the face of the evi dence on the record and more particularly in the absence of any challenge to the testimony of the investigating officer, in fairness to Mr Ganguli, we must reco rd that he rightly did not pursue that argument any further. We, therefore, find ourselves unable to agree with the opinion of the High Court and hold that the statement of Yashmoti PW 3, recorded by the investigating officer PW 28, was rig htly treated as FIR in this case by the prosecution and the trial court. (cid:29) (Emphasis is supplied) What can be deduced from the above observations, made in Dhananjoy Chatt 9. erjee (supra), is that information to the Police to attend to a particular situa tion cannot be treated as an FIR; rather, it is the information, which discloses the commission of a cognizable offence, triggering a process of collection of e vidence and/or other facts to ascertain the veracity of such information, which can be treated as an FIR. Section 154 of the Code of Criminal Procedure also beg ins with the expression, ’every information relating to the commission of cogniz able offence, meaning thereby that the information, furnished to the Officer in Charge of a police station, must disclose commission of a cognizable offence so as to treat the information as FIR laying down the foundation for a criminal inv estigation. Viewed from this perspective, the letter, written by the Manager of the Hospital, merely provided information that a lady had been undergoing treatm ent there for burn injuries sustained by the bursting of stove. This information did not give rise to the commission of any cognizable offence; hence, an inquir y was ordered by the Officer-in-Charge. In the course of inquiry, however, the s tatement of the deceased was recorded and this statement gave rise to the inform ation, as contained in Ext.2, which Sub-Inspector, Jogendra Nath Saikia, lodged, at his Police Station, relating to alleged commission of a cognizable offence. Hence, the information, given to the Officer-in- Charge, in the form of Ext 2, h as to be treated as the FIR. In other words, the investigation into the guilt of the accused persons, named in Ext.2, commenced only after the receipt of Ext 2, which was an information, in writing, relating to alleged commission of a cogni zable offence by the accused named therein. Ext.2 is, therefore, the FIR. 10. Coupled with the above, one must also bear in mind, in the context of th e facts of the present case, that Section 304B IPC not only defines what shall b e called as ’dowry death’, but also prescribes punishment for a person, who comm its ’dowry death’. 11. A careful reading of Section 304B(1) IPC, which defines ’dowry death’, c learly shows that in order to become ’dowry death’, death of the woman concerned must be proved to have been caused by burns or bodily injury or her death must have occurred otherwise than under normal circumstances within seven years of he r marriage and that it must also be shown that soon before her death, the woman concerned had been subjected to cruelty or har›assment by her husband or by any relative of her husband for, or in connection with, any demand for dowry, such d eath shall be called ’dowry death’ and such husband or relative, as the case may be, shall be deemed to have caused the death of the woman. 12. Thus, Section 304B(1) IPC warrants a legal presumption to be drawn again st a person of having caused ’dowry death’ if the death of the woman is caused b y any burn or bodily injury or if her death is proved to have occurred otherwise than under normal circumstances within seven years of her marriage and that it must also be shown that soon before her death, the woman had been subjected to c ruelty or har›assment by her husband or by any relative of her husband for, or i n connection with, any demand for dowry, such death shall be called ’dowry death ’ and such husband or relative, as the case may be, shall be deemed to have caus ed the death of the woman. 13. In short, thus, apart from the fact that the death of the woman has to b e caused by burn injury or bodily injury or she must have died under circumstanc es, otherwise than normal, and such a death must have occurred within seven year s of her marriage and the woman must be shown to have, soon before hear death, s ubjected to cruelty or har›assment by her husband or by any relative of her husb and for, or in connection with, any demand for dowry. 14. In the present case, Pompi, admittedly, died, because of the burn injuri es suffered by her within a period of seven years of her marriage. Thus, a part of the ingredients of ’dowry death’, as embodied in Section 304B (1) IPC, stands satisfied. It was, however, incumbent, on the part of the prosecution, to show that soon before her death, Pompi was subjected to cruelty or harassment by the accused-appellant, who was her husband, for, or in connection with, any demand f or dowry. 15. It is noteworthy that it clearly surfaces from the evidence on record th at the Investigating Officer claims to have recorded Pompi’s statement, while sh e was lying under treatment for having suffered burn injuries. As Pompi died sub sequent to the making of her statement to the Investigating Officer, her said st atement, if recorded by the Investigating Officer, was, undoubtedly, a ’dying de claration’ and ought to have been brought on record by the prosecution. Similarl y, Pompi’s statement is claimed to have been recorded by the doctor and also by an Executive Magistrate. While her statement, claimed to have been made to the d octor, at Astha Hospital, Dibrugarh, has been proved as Ext.1, her statement, wh ich was claimed to have been recorded by the Executive Magistrate, has not been brought on record even though the statement, if made by Pompi to the Executive Magistrate describing as to how she had sustained burn injuries on her person, b ecame her ’dying declaration’ and the same ought to have been brought on record of the case by the prosecution. 16. Thus, there were, according to the evidence on record, as many as three ’dying declarations’, which are claimed to have been recorded. This apart, there is allegedly one more ’dying declaration’ and this comes out from the evidence of PW1, whose evidence is to the effect that Pompi had told her that she had her self set fire to her body by pouring kerosene. This assertion of PW1 would, if t rue, amount to commission of suicide by Pompi. 17. Be that as it may, there are, at least, three ’dying declarations’, whic h prosecution claims to have been recorded. The prosecution has, however, broug ht on record only one ’dying declaration’, namely, Pompi’s statement, which is c laimed to have been recorded, at Astha Hospital, by the doctor, wherein she is c laimed to have stated that it was her husband (i.e., the accused-appellant), who had thrown kerosene on her from her backside and set fire. The other two ’dying declarations’, one, which was claimed to have been recorded by the Investigatin g Officer, and the other, which was claimed to have been recorded by the Executi ve Magistrate, have not been brought and proved on record, though both these ’dy ing declarations’, too, ought to have been brought on record inasmuch as it was the duty of the prosecution to place all the material facts before the Court in order to enable the Court reach the whole of the truth. 18. Is the omission to bring on record the ’dying declarations’, which are c laimed to have been recorded by the Investigating Officer and the Executive Magi strate, lacuna in the prosecution’s case, which cannot be not allowed to be fill ed up or is it a defect in the management of the case? 19. While considering the question, posed above, one must bear in mind that a lacuna, in the prosecution’s case, shall not be equated with the fallout of an oversight, which a prosecutor may have committed, at the trial, either in produ cing relevant materials or in eliciting relevant answer from the witness(es). A human being, be he a prosecutor or a defence counsel, may commit mistake. Logi cally extended, it would mean that laches or mistakes, while conducting a trial, cannot be understood as lacunae. In fact, lacunae, in the prosecution’s case, must be clearly understood to be a inherent weakness or a latent wedge in the ma trix of a prosecution’s case. Though the advantage of the lapse, on the part of the prosecution, should, ordinarily, go in favour of the defence, an oversight, in the management of the prosecution, cannot be treated as irreparable lacuna. Nobody can be denied the right to correct the errors committed in a trial unles s it is shown that prejudice would be caused if the error is allowed to be corre cted. 20. With regard to the above, it must be uppermost in the mind of a Judge th at if appropriate evidence is not adduced, or relevant material is not brought o n record, due to inadvertence of the counsel, the Court shall not foreclose the right of the party to correct the errors, for, Courts are required to do justice and not to count errors committed by the parties or to find out as to who, amon gst the parties, performed better. Explaining as to what can be regarded as a l acuna in a prosecution’s case, the Supreme Court, in Rajendra Prasad Vs. Narcoti c Cell, reported in (1999) 6 SCC 110, observed : \7. It is a common experience in criminal courts that defence counsel would rais e objections whenever courts exercise powers under Section 311 of the Code of un der Section 165 of the Evidence Act, 1872 by saying that the court could not \fi ll the lacuna in the prosecution case\. A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor durin g trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage \to err is human\ is the recognition of the possibili ty of making mistakes to which humans are phone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna whi ch a court cannot fill up. 8. Lacuna in the prosecution must be understood as the inherent weakness or a la tent wedge in the matrix of the prosecution case. The advantage of it should nor mally go to the accused in the trial of the case, but an oversight in the manage ment of the prosecution cannot be treated as irreparable lacuna. No party in a t rial can be foreclosed from correcting errors. If proper evidence was not adduce d 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 a ll, 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 t he parties performed better. 9. The very same decision MohanlalShamjiSoni Vs. Union of India 1 which cautione d against filling up lacuna has also laid down the ratio thus : (AIR Hea dnote)\it is therefore clear that the criminal court has ample power to summon a ny person as a witness or recall and re-examine any such person even if the evid ence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to b e the only safe guides and that only the requirements of justice command the exa mination of any person which would depend on the facts and circumstances of each case. \ 10. Dealing with the corresponding section in the old Code (Section 540) Hidayat ullah, J. (as the learned Chief Justice then was) speaking for a three-Judge Ben ch of this Court had said in JamatrajKewaljiGovani Vs. State of Maharashtra 2 as follows : \it would appear that in our criminal jurisdiction, statutory law con fers a power in absolute terms to be exercised at any stage of the trial to summ on a witness or examine one present in court or to recall a witness already exam ined, and makes this the duty and obligation of the court provided the just deci sion of the case demands it. In other words, where the court exercises the power under the second part, the enquiry cannot be whether the accused has brought an ything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case. \ 11. Chinnappa Reddy, J. has also observed in the same tone in Ram ChanderVs. Sta te of Haryana. 12. We cannot therefore accept the contention of the appellant as a legal propos ition that the court cannot exercise power of resummoning any witness if once th at 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 du ring 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 resumm oning certain witnesses cannot therefore be spurned down or frowned at. \ (Emphasis is supplied) 21. From the observations made in Rajendra Prasad’s case (supra), it clearl y transpires that a lacuna, in the case of prosecution or defence, would mean an inherent weakness of the case and not accidental slip or omission nor does lacu na mean patent wedge, but a latent wedge. An oversight or inefficiency in the ma nagement of a case is not a lacuna. In this regard, it also becomes necessar y to redefine the role of a Prosecutor in a criminal trial. 22. The role of a Prosecutor in a Court of law is to place all the necessar y facts before the Court to ensure utmost fairness in prosecution. It is not the duty of the Prosecution to ensure conviction. The quest in the Court of law is only for truth as far as possible and all the Officers of Court, be it the Judge , the Prosecutor or the Defence Counsel, must strive for bringing out the truth irrespective of the consideration whether the truth will result in acquittal or conviction. 23. In this regard the relevant observations made in the case of Rana Sinha @ Sujit Sinha, Vs. The State of Tripura, reported in 2011(2)GLT 610, may be gain fully quoted here in order to understand the role of a prosecutor, which read as under: (cid:28)176 & & &... The legislature reminds the State that the prosecution of every accus ed must strictly conform to fairness of a criminal trial. 177. As indicated above, a Public Prosecutor’s role is not to ensure conviction of an accused, irrespective of the facts involved in the case. The attitude of t he Public Prosecutor, who conducts prosecution, shall be fair not only to the co urt and to the investigating agencies, but to the accused as well. If an accused is entitled to any legitimate benefit during trial, the Public Prosecutor shoul d not scuttle or conceal it. On the contrary, it is the duty of the Public Prose cutor to help the Court reach the truth. 178. As mentioned above, even when a defence counsel overlooks a material aspect of a case, which may help in uncovering the truth and in arriving at a just dec ision of the case, the Public Prosecutor has the added obligation to bring to th e notice of the Court such an aspect of the case. 179. Agreed the Supreme Court with the observations of a Division Bench of the H igh Court of Andhra Pradesh, in Medicheetty Ramakistiah and Ors. v. The State of Andhra Pradesh AIR 1959 AP 659, which read, \A prosecution, to use a familiar p hrase, ought not to be a persecution. The principle that the Public Prosecutor s hould be scrupulously fair to the accused and present his case with detachment a nd without evincing any anxiety to secure a conviction, is based upon high polic y and as such courts should be astute to suffer no inroad upon its integrity. Ot herwise there will be no guarantee that the trial will be as fair to the accused as a criminal trial ought to be. The State and the Public Prosecutor acting for it are only supposed to be putting all the facts of the case before the Court t o obtain its decision thereon and not to obtain a conviction by any means fair o r foul. Therefore, it is right and proper that courts should be zealous to see t hat the prosecution of an offender is not handed over completely to a profession al gentleman instructed by a private party. 180. From the observations made above, it becomes clear that a Public Prosecutor is required to deal with a case with utmost detachment and should not exhibit t he intention to secure, by hook or crook, conviction of the accused. Under our c riminal jurisprudence, this is one of the essential features of a fair trial. (cid:29) In the case at hand, the prosecution’s failure to bring on record the ’d 24. ying declarations’, which have been claimed to have been recorded by the Investi gating Officer and the Executive Magistrate, though cannot be regarded as an inh erent defect of the case or lacuna of the case, but there appears a failure in p roperly managing the case or conducting the trial and as a result thereof the Pr osecutor failed to bring the important relevant facts before the Court for a jus t decision. In the commission of this error, the learned trial Judge was as muc h responsible as the learned Prosecutor. In fact, when the Prosecutor had omitted, inadvertently or advertently, 25. from bringing the said two alleged ’dying declarations’ on record, the learned t rial Judge ought to have been alive to the situation and ought to have directed, pursuant to the powers vested in him by Section 165 of the Evidence Act, read w ith Section 311 CrPC, to bring the said two remaining alleged ’dying declaration s’ on record so that full facts and materials were available on record in order to enable him to do justice by coming to a correct conclusion in the light of th e relevant materials. It may also be pointed out that Section 311 Cr.PC., which empowers a Jud 26. ge, in a criminal trial, to call or re-call a witness is one of the facets of hi s powers under Section 165 of the Evidence Act and the Judge must ensure that he has done what is necessitated for a just decision of the given case bearing, of course, in his mind the recognized limitations within which the power has to be exercised. In fact, emphasizing what role a Judge should play in a trial, the Supr 27. eme Court, in Shakila Abdul Gafar Khan Vs. Vasant Raghunath Dhoble, reported in (2003) 7 SCC 749, observed : \34. The courts exist for doing justice to the persons who are affected. The tri al/first appellate courts cannot get swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The court is not merely to act as a tape recorder recording evidence, overlooking the obj ect of trial i. e. to get at the truth, and oblivious to the active role to be p layed for which there is not only ample scope but sufficient powers conferred un der the Code. It has a greater duty and responsibility i. e. to render justice i n a case where the role of the prosecuting agency itself is put in issue. \ (Emphasis is supplied) 28.