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Ram Kishore & Another v. State Of U.P. & Another - CRIMINAL REVISION No. 2154 of 1998  RD-AH 15785 (11 September 2006)
Court No. 55
Criminal Revision No. 2154 of 1998
Ram Kishore and another.................................Revisionists
State of U.P. and another................................Opposite parties.
Hon'ble Amar Saran, J.
This criminal revision has been filed by the revisionists accused against the order dated 2.12.1998 passed by VIIIth Additional Sessions Judge, Etawah, in S. T. No. 60/90 State vs. Ram Kishore and others under Sections 498-A, 304-B, 302 and 201 IPC and ¾ of the Dowry Prohibition Act, by which order, the learned Trial Judge has permitted the re-examination of the opposite party No. 2.
It is argued that this re-examination has been allowed a second time by the impugned order and it was done at the stage of 313 Cr. P. C. The said order was highly belated and if the applicants had failed to prove the letters, he could not be permitted to do the same at this stage to fill up the lacunae. The learned Trial Court by the impugned order has held that although the said documents were on the record of the case, as the said documents, which are letters have been filed on 5.1.1989 before the lower Court and they were present on the record of the case of the Trial Court on 8.3.1990 when the case was committed. Examination of P.W. 1 was conducted on 22.6.1998. On 25.5.1998 on an application of the accused, P.W. 1 was summoned as a court witness and he was again cross examined by the accused persons. The said letters, which the opposite party No. 2 wanted to prove, were purportedly written by the accused Ram Kishore and his daughter the deceased Smt. Pushpa Rathore and inadvertently he had omitted to prove the said letters. It was further observed that under Section 138 of the Evidence Act, a witness can be given ample opportunity to prove any new matter or some matter emerges as a result of cross examination and a witness may be permitted to explain those facts. For the essential and just decision of the case, the Court was empowered to summon any witness and that it would serve the interest of justice when both the parties were given full opportunity to establish their case. He, however, imposed costs against the opposite party No. 2 for the delayed application. I find no illegality in the said order.
I could do no better here than to quote paragraphs 6 to 11 from a decision of the apex Court in Rajendra Prasad v. the Narcotic Cell, Delhi, AIR 1999 SC 2292 for examining the question whether such permission for re-examination of a witness, when material which may be essential for decision of a case has been inadvertently not proved earlier, be construed an attempt to fill up lacuna in a case. The said paragraphs read:
"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.
8. The very same decision, Mohanlal Shamji Soni v. Union of India, AIR 1991 SC 1346 : 1999 Cri LJ 1521 (supra), which cautioned against filling up lacuna has also laid down the ratio thus (Para 27):
"It is therefore clear that the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence 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 be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.'
9. Dealing with the corresponding section in the old Code (Section 540) Hidaya-tullah, J. (as the learned Chief Justice then was) speaking for a three-Judge bench of this Court had said in, Jamatraj Kewalji Govani v. State of Maharashtra, (1967) 3 SCR 415 : (AIR 1968 SC 178 : 1968 Cri LJ 231), as follows (Para 14 of AIR and Cri LJ):
"It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in Court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the Court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the Court is right in thinking that the new evidence is necessary by it for a just decision of the case."
10. Chinnappa Reddy, J. has also observed in the same tone in, Ram Chander v. State of Haryana, AIR 1981 SC 1036 : (1981 Cri LJ 609).
11. We cannot therefore accept the contention of the appellant as a legal proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that 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 re-summoning certain witnesses cannot therefore be spurned down nor frowned at."
In this view of the matter there is no force in this Criminal Revision which is dismissed. As the trial in this case has remained stayed for almost 8 years because of the stay order granted by this Court, the trial court is now directed to proceed with and conclude the trial expeditiously. Office is directed to communicate this order to the trial court within two weeks.
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