Wasudeo S/O Gulabrao Dhoke (In ... vs State Of Maharashtra, Thr. P.S.O. ...
2016 Latest Caselaw 5468 Bom

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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                             
                                               NAGPUR BENCH, NAGPUR




                                                                              
                          CRIMINAL APPLICATION (APL) No.504 OF 2016


            Mr. Wasudeo s/o. Gulabrao Dhoke (in Jail),




                                                                             
            Age 56 years,
            Occupation : Labour,
            R/o. Mouza Khapri, Taluka Karanja (Ghatge),
            Distt. Wardha.                              :      PETITIONER




                                                          
                               ...VERSUS...

            State of Maharashtra,
                                 
            Through its Police Station Officer,
            Police Station Karanja (Ghatge),
                                
            Distt. Wardha.                                                               :      NON-APPLICANT


            =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
            Shri R.R. Vyas, Advocate for the Applicant.
      

            Shri N.R. Patil, Additional Public Prosecutor for the Non-applicant.
            =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
   



                                                          CORAM  :   S.B. SHUKRE, J.

nd SEPTEMBER, 2016.

                                                          DATE      :   22





            ORAL JUDGMENT   :


            1.                 Heard.





            2.                 Admit.

3. Heard finally by consent of learned counsel appearing for the

parties.

4. What is challenge in this application is the order dated

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24.6.2016 passed by the learned Sessions Judge, Wardha rejecting the

application filed under Section 311 of the Code of Criminal Procedure by

the applicant, the accused in Sessions Trial No.94/2014, in which he is

being prosecuted for an offence punishable under Section 302 of the

Indian Penal Code.

5. Learned Sessions Judge has taken a view that when the

opportunity was available to the accused to put necessary questions to

witnesses, namely, PW 3 and PW 7, the opportunity was waisted and,

therefore, any attempt made as an afterthought to put these questions

would amount to filling up the lacuna in the defence. On this ground,

the learned Sessions Judge has turned down the request of the applicant.

6. Learned counsel for the applicant submits that this was not

the case of filling up the lacuna, but an attempt to correct the error

occurred while cross-examining the witnesses and, therefore, the

application ought to have been allowed. He also submits that no

prejudice would be caused to the prosecution, if two witnesses are

recalled for the limited purpose of putting them specific questions and

suggestions, as detailed in the Pursis filed today, which is taken on

record. In support, he places his reliance upon the case of Natasha

Singh vs. CBI (State), reported in AIR 2013 SC (Supp) 845.

7. Learned A.P.P. for the non-applicant/State contends that the

order challenged in the application is legal and correct and that it does

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not cause any prejudice to the accused. He submits that it is well settled

law that the power under Section 311 of the Criminal Procedure Code

should not be resorted to help a party to fill up the lacuna. He submits

that when the opportunity was available, the accused did not put these

questions to the witnesses and, therefore, now any attempt made for

putting up these questions would only amount to filling up the lacuna in

the case of defence. He submits that this is not permissible in law and

places his reliance upon the case of Mannan Shaikh and others vs.

State of West Bengal and another, reported in (2014) 13 SCC 59.

8. In the case of Mannan Shaikh and others vs. State of West

Bengal and another the Hon'ble Apex Court has held that the power

under Section 311 of the Criminal Procedure Code has to be exercised in

a judicious manner so as to ensure that it advances a just decision of the

case and that if the Court is of the opinion that in order to arrive at a just

decision in the case, it is necessary to recall or reexamine a witness, the

power must be exercised. It is also held that the power should be

exercised in a manner that no prejudice is caused to the accused if the

permission is given to the prosecution to fill up the lacuna.

9. In the case of Natasha Singh, the Hon'ble Apex Court has

reiterated the view taken by the Hon'ble Apex Court in the case of

Rajendra Prasad vs. Narcotic Cell, through its Officer-in-Charge,

Delhi, reported in AIR 1999 SC 2292. The view is to the effect that the

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lacuna in the prosecution is something which is inherent weakness or a

latent wedge in the prosecution case, the advantage of which ordinarily

must go to the accused and 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.

The later category of mistake or over sight does not fall in the category of

inherent weakness or fundamental lacuna in the prosecution case and

that, it is a curable defect.

10.

Thus, it is clear to us that when the witnesses can be recalled

to correct the errors occurred in the management of the prosecution case,

same principle can be applied to the defence case as well. In the instant

case, certain questions, due to inadvertence, were not put to PW 3 as

well as PW 7 and a look at these questions, as detailed in the Pursis dated

22.9.2016, would reveal that they are not in the nature of any attempt to

fill up the lacuna as understood in law, in the defence case. These

questions and suggestion are as follows :

"Question to Witness No.3 :

Question - Is it true that deceased was of quarrelsome nature and due to same she was on inimical terms with

the other villagers ?

Question to PW 7 (Investigating Officer) : Question - Can you tell during course of investigation statement of how many witnesses along with their names, were recorded ?

Question - On which date statements were recorded ? Suggestion - You have not sent any weapon for

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examination and without sending the weapons got prepared the report from Doctor."

Even otherwise, there is a difference between what is called

as an attempt to fill up the lacuna in the prosecution case and what is

called as an attempt to strengthen the defence. While the former, if

allowed, may cause prejudice to the accused, the later, if allowed would

not cause any prejudice to the prosecution and would only strengthen the

right of the accused to fair trial.

Having considered the nature of questions and suggestion

sought to be put to PW 3 and PW 7, I am of the view that the impugned

order cannot be seen as consistent with the settled principles of law. It

needs to be quashed and set aside.

12. In the result, the application is allowed.

13. The impugned order dated 24.6.2016, passed by the learned

Sessions Judge, Wardha is quashed and set aside.

14. The prosecution witnesses i.e. PW 3 and PW 7 be recalled for

the limited purpose of putting them the questions and suggestions

mentioned in the Pursis dated 22.9.2016.

JUDGE okMksns

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CERTIFICATE

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Uploaded on : 23.9.2016.