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IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC NO.2730 OF 2023 (From the order dated 18th April, 2023 passed by learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No.11/2021) Binand Miridia @ Binanda Miridia @ Balia … Petitioner -versus- State of Orissa … Opposite Party Advocates appeared in the case through hybrid mode: For Petitioners: Mr.B.P.Pradhan, Advocate -versus- For Opp.Party: Mr.S.K.Mishra, Addl. Standing Counsel --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 18.7.2023. CRLMC No.2730 of 2023 Page 1 of 9 Sashikanta Mishra,J. The Petitioner is facing trial in S.T. Case No.11/2021 in the Court of learned Sessions Judge, Mayurbhanj, Baripada for the alleged commission of offence under Section 302/34 of I.P.C. In the present application filed under Section 482 of Cr.P.C., he questions the correctness of order dated 18th April, 2023 passed by the Court below in allowing the petition filed by the prosecution under Section 311 of Cr.P.C to recall Prosecution Witness No.1 for further examination. 2. Trial having commenced in the Court below, prosecution examined 22 witnesses including the autopsy surgeon Dr. Maheswar Das as P.W.1. After conclusion of prosecution evidence, the case was posted for examination of the accused under Section 313 of Cr.P.C. At this stage prosecution filed a petition to recall P.W.1 for re-examination on the ground that the weapon of offence marked M.O.No.I was inadvertently not produced in the court during examination of P.W.1, which is essentially required for CRLMC No.2730 of 2023 Page 2 of 9 proper identification thereof. The accused filed a petition questioning the maintainability of the petition and on the ground that P.W.1 has already proved the query report given by him marked Ext.2 and his signature Ext.2/1 in course of which, he has mentioned the details of the weapon (axe). Therefore at this stage, if the prosecution is allowed to produce the weapon of offence again it would amount to patching up its lacuna, which is not permissible in the eye of law. Learned Sessions Judge considered the contentions raised by both the parties and held that the weapon of offence was not produced during examination of P.W.1 and that he is the best person to identify it. It was further held that it would not prejudice the accused in any manner rather it will clarify whether it was used in the commission of the crime or not. Accordingly, the petition was allowed as per the impugned order. CRLMC No.2730 of 2023 Page 3 of 9 3.
Legal Reasoning
Heard Mr. B.P.Pradhan, learned for the Petitioner-accused, and Mr. S.K.Mishra, learned Addl. Standing Counsel for the State. 4. Mr. Pradhan would argue that law does not permit a party to patch up its lacuna in its case. Moreover, prosecution has not explained the reasons for not producing the weapon of offence at the relevant time. Therefore, it should not be allowed to produce the weapon at this belated stage, which would cause serious prejudice to the defence of the accused. 5. Mr. S.K.Mishra, on the other hand, would contend that this is a case where the weapon of offence was produced before the Court and marked as M.O.I through the I.O. After closure of evidence it came to light that it had inadvertently not been produced during examination of P.W.1 even though questions were put to him with regard to his opinion given earlier regarding the weapon. Therefore, unless P.W.1 is recalled and re-examined only with reference to the CRLMC No.2730 of 2023 Page 4 of 9 M.O. it would be a case of giving undue advantage to the defence. 6. I have heard the rival contentions and have also gone through the copies of the depositions of the autopsy surgeon (P.W.1) and the I.O. (P.W.22). In course of his examination-in-chief, P.W.1 has stated about receiving a query requisition along with an axe after examining which he opined that the injury Nos.1 and 2 can be possible by the said axe. He was cross- examined also with regard to the diameter of the axe. The axe itself was not produced for reasons not indicated by the prosecution. Nevertheless, the I.O. proved the axe being marked M.O.I during his examination-in-chief. It is true that no reason is forthcoming as to why M.O.1 was not produced during examination of P.W.1, but then the question is, whether the same could be treated as a lacuna in the prosecution evidence which is sought to be filled up. As already stated, it is not a case where the axe was not produced at all. It was produced and duly marked CRLMC No.2730 of 2023 Page 5 of 9 M.O.I subsequent to the examination of P.W.1. Therefore, non-production of the axe during examination of P.W.1 cannot be treated as a lacuna more so, when the prosecution does not specifically contend that no axe was used in the occurrence. On the contrary, during cross-examination of the I.O. (P.W.22), it was elicited from him by the defence that he had sent the seized weapon of offence M.O.I to the M.O., D.H., Udala for his examination and opinion and received it back after his examination. This also implies that it is not the defence case that no axe was used. So what the prosecution seeks in the present case is to bring something already on record to fortify its case which is not akin to springing a surprise on the accused. In case of Rajendra Prasad v. Narcotic Cell through its Officer-in-charge, Delhi; reported in AIR 1999 SC 2292, the Apex Court while referring ‘lacuna’ in the prosecution case observed as follows; “6. It is a common experience in criminal Courts that defence counsel would raise objections whenever Courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act by saying CRLMC No.2730 of 2023 Page 6 of 9 that the Court could not ’fill the lacuna in the prosecution case.’ A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage ’to err is human’ is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up. 7. Lacuna the prosecution must be in 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 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 to any not brought on inadvertence, be the Court 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.” the management of record due should in 7. In a recent case, i.e. Varsha Garg vs. State of Madhya Pradesh and others; reported in 2022 SCC OnLine SC 986 dealing with similar issue, the Apex Court has referred to and reiterated the principles laid down in case of Rajendra Prasad (supra). CRLMC No.2730 of 2023 Page 7 of 9 Furthermore, it is the settled position of law that filling up loopholes on account of allowing an application under Section 311 of Cr.P.C. is merely a subsidiary factor and the Court’s determination of the application should only be based on the test of essentiality of the evidence. The above view, which was taken by the Apex Court in Godrej Pacific Tech Ltd. V. Computer Joint India Ltd. reported in (2008)11 SCC 108, was also referred to and reiterated in Varsha Garg (supra). 8. Reading of the impugned order reveals that the learned Sessions Judge has specifically taken note of the fact that production of M.O.I again on recall of P.W.1 would not prejudice the accused in any manner, rather it would clarify whether it was used in the commission of the crime or not. Thus, the essentiality of the recall of the witness is something that weighed upon the mind of the learned Sessions Judge. In view of what has been discussed hereinbefore, this Court fully concurs with the same and is therefore, persuaded to reject the contention of CRLMC No.2730 of 2023 Page 8 of 9 the defence that recalling P.W.1 for re-examination would be prejudicial to its interests. 9. For the forgoing reasons therefore, this Court finds no merit in the CRLMC, which is therefore dismissed. Learned Sessions Judge is directed to re- examine the P.W.1 on recall allowing proper opportunity to the defence to cross-examine him. …………….…….……….. (Sashikanta Mishra) Judge Ashok Kumar Behera Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Designation: A.R.-CUM-SR.SECRETARY Reason: Authentication Location: High Court of Orissa, Cuttack Date: 19-Jul-2023 11:23:54 CRLMC No.2730 of 2023 Page 9 of 9