Binand Miridia @ vs State Of Orissa
2023 Latest Caselaw 7768 Ori

   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.

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

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.

3. 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

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

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

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 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 over sight 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."

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).

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

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