bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 690 OF 2008 PETITION NO. 690 OF 2008 PETITION NO. 690 OF 2008 Dipak Maruti Gund & ors. ... Petitioners v/s The State of Maharashtra ... Respondent Mr.S.S.Shah for the petitioners. Smt.A.A.Mane, A.P.P. for the respondent State. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 10TH APRIL, 2008 10TH APRIL, 2008 10TH APRIL, 2008 P.C. P.C. P.C.: 1. This petition challenges the order passed by the Ad-hoc Additional Sessions Judge, Solapur, dated 15.3.2008 disallowing the petitioners’ application to recall PW-7, the medical officer. The Sessions Court was of the view that such an exercise was not permissible under Section 311 of the Code of Criminal Procedure as allowing the witness to be recalled after the statement of the accused under Section 313 of the Criminal Procedure Code was recorded and his defence witnesses were examined, would permit him to fill in the lacunae in the cross-examination of PW-7. It was also held that there was no vagueness or ambiguity in the evidence of PW-7 and that the application filed by the 2 accused did not disclose the questions which remained to be posed to PW-7. 2. Mr.Shah, learned counsel for the petitioner submits that the application has been made for recalling the witness only because there is a dispute as to whether the death by strangulation was suicidal or homicidal. He submits that certain questions which were not asked in cross-examination to PW-7 would elicit answers which would throw light on whether the death was due to a homicide or a suicide. He submits therefore that the Sessions Court has erred in refusing the application made by the petitioner. Reliance is placed on the judgment of the Supreme Court in the case of Mohanlal Mohanlal Mohanlal Shamji Shamji Shamji Soni v/s Union of India & anr., reported in Soni v/s Union of India & anr., reported in Soni v/s Union of India & anr., reported in A.I.R. A.I.R. A.I.R. 1991 SC 1346 1991 SC 1346 1991 SC 1346 and in the case of Rajendra Prasad Rajendra Prasad Rajendra Prasad v/s v/s v/s Narcotic Cell, reported in (1999) 6 SCC 110 and Narcotic Cell, reported in (1999) 6 SCC 110 and Narcotic Cell, reported in (1999) 6 SCC 110 and P.Chhaganlal P.Chhaganlal P.Chhaganlal Daga v/s M.Sanjay Shaw, reported in (2003) Daga v/s M.Sanjay Shaw, reported in (2003) Daga v/s M.Sanjay Shaw, reported in (2003) 11 11 11 SCC 486. SCC 486. SCC 486. The learned advocate also relies on the judgment of the learned Single Judge of this Court (Mohta, J.) in the case of Dipak Gangaram Ahirrao & anr. Dipak Gangaram Ahirrao & anr. Dipak Gangaram Ahirrao & anr. v/s v/s v/s State of Maharashtra State of Maharashtra State of Maharashtra in support of his submissions. 3. The learned A.P.P. submits that the Sessions Court has rightly refused the permission to recall PW-7. She submits that by recalling PW-7 and permitting her to be 3 cross-examined further after the statement of the accused has been recorded under Section 313 of the Cr.P.C. and after the defence witnesses have been examined, would lead to injustice and would prejudice the case of the prosecution. 4. The Supreme Court, in the case of Mohanlal Mohanlal Mohanlal (supra) has observed as follows: "10. It is cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the Court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a 4 situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice ? It is a well accepted and settled principle that a Court must discharge its statutory functions whether discretionary or obligatory - according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the code (Section 311 of the new Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or 5 recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated." Similarly, in the case of Rajendra Prasad Rajendra Prasad Rajendra Prasad (supra), the Supreme Court was concerned as to what would amount to "filling in the lacuna" in the prosecution case. The Supreme Court has observed in paras 7 and 8 of the said judgment as under: "7. .........A lacuna in the 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 a lacuna which a court cannot fill up. 6 8. Lacuna in the prosecution case 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. No party in a trial can be foreclosed No party in a trial can be foreclosed No party in a trial can be foreclosed from from from correcting errors. If proper evidence correcting errors. If proper evidence correcting errors. If proper evidence was was was not adduced or a relevant material was not not adduced or a relevant material was not not adduced or a relevant material was not brought brought brought on record due to any inadvertence, the on record due to any inadvertence, the on record due to any inadvertence, the Court Court Court should be magnanimous in permitting such should be magnanimous in permitting such should be magnanimous in permitting such mistakes mistakes mistakes to be rectified. After all, function to be rectified. After all, function to be rectified. After all, function of of of the criminal Court is administration of the criminal Court is administration of the criminal Court is administration of criminal criminal criminal justice and not to count error justice and not to count error justice and not to count error committed committed committed by the parties or to find out and by the parties or to find out and by the parties or to find out and declare declare declare who among the parties performed who among the parties performed who among the parties performed better." better." better."(Emphasis supplied)). 5. In the case of P. Chhaganlal Daga P. Chhaganlal Daga P. Chhaganlal Daga (supra), the Apex Court has referred a judgment in the case of Rajendra Rajendra Rajendra Prasad Prasad Prasad and Mohanlal and Mohanlal and Mohanlal (supra) and reiterated its view. In the case of Deepak Gangaram Ahirrao Deepak Gangaram Ahirrao Deepak Gangaram Ahirrao (supra), the learned Single Judge of this Court (Mohta, J.) has taken a similar view. 7 6. A criminal trial is not one which is an adversarial litigation. It is a proceeding for bringing-forth the truth as to who is guilty of an offence complained. In such circumstances, what is of paramount importance is that all available and relevant evidence must be placed before the Court before it decides as to whether the accused is guilty of the offence alleged against him. By allowing the accused to question PW-7 further, would not jeopardise the case of the prosecution. It might in fact bring out the truth as to whether the death of the victim was homicidal or suicide. Therefore, in my opinion, the petition deserves to be allowed. The Sessions Court has erred in refusing the application filed for recalling PW-7 on the ground that it did not disclose the necessity for such a request. A bare refusal of the application indicates that the accused has mentioned the reason for preferring the application. 7. Petition made absolute in terms of prayer clause (b). 8. The Sessions Court shall permit the petitioner to cross-examine PW-7 further by recalling her.