Tripura High Court: In a case relating to a revision petition filed by the State, challenging the order of the Sessions Judge allowing the petition filed by the accused for re-examination of witnesses under Section 311 Code of Criminal Procedure (CrPC) at the stage of examination of accused under Section 313 CrPC, T. Amarnath Goud, J. observed that a legal proposition that the Court cannot exercise power of re-summoning any witness, if once that power was exercised, cannot be accepted, and the power cannot be whittled down merely on the grounds that prosecution discovered laches only when the defence highlighted them during final arguments.
In this case the prosecution closed its evidence on 23.05.2022 and the next date was fixed on 03.06.2022 for examination of the accused persons under S. 313 of CrPC. On 03.06.2022, accused-persons filed a petition under Section 311 of CrPC with a prayer to recall and re-examine some witnesses, on the pretext that in his examination- in- chief one of the witnesses stated a statement that is missing from the statement recorded under Sections 161, 164 of CrPC.
The Court observed that the law is common that application of Section 311 of CrPC cannot be used to fill up the lacuna and the examination of the witnesses cannot be an endless process. Since the statement has been exhibited and is on record, calling of the witnesses for the purpose of contradiction will not serve any practical purpose and will only delay the trial. However, the very spirit of Section 311 of CrPC is to extend an opportunity for further re-examination or re-cross examination to either of the party if the same is essential to arrive at a just decision in the case.
The Court further observed that “lacuna in 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 oversight in the management of the prosecution cannot be treated as irreparable lacuna”.
Moreover, it viewed that no party in a trial can be foreclosed from correcting errors, and if proper evidence was not adduced or a relevant material was not brought on record due to any in-adventure, the Court should be magnanimous in permitting such mistakes to be rectified, more so, when the rights conferred by Constitution of India upon a citizen.
The Court did not appreciate the argument of the state that the eye-witness might turn hostile in collusion with the accused-person, and observed that “to meet the ends of justice, the door cannot be shut against the accused-person without giving an opportunity and the State Government, having all infrastructures and fully equipped, cannot expressed its doubt against its witnesses. They can take all measures in the interest of truth to protect the witnesses from the clutches of the accused-person if there is any such apprehension of hostility”.
[State of Tripura v Sumit Banik, 2022 SCC OnLine Tri 582, decided on 12.08.2022]
Advocates who appeared in this case :
For Petitioner: Public Prosecutor S. Kar Bhowmik
Public Prosecutor R. Datta,
Advocate Srikanta Bol
For Respondent: Sr. Advocate P. K. Biswas
Advocate. P. Majumder,
Advocate. A. K. Banerjee