Judgment:
P.N. Sinha, J.
1. This revisional application under Section 401 read with Section 482 of the Code of Criminal Procedure (hereinafter called the Code) has been filed by the accused petitioners assailing the order dated 27.4.05 passed by the learned Additional Sessions Judge (Special), Jalpaiguri in Sessions Case No. 124/99 thereby allowing the prayer of prosecution under Section 311 of the Code for date of evidence of medical officer and production of records of Dhupguri P.S. Case No. 69/96.
2. Mr. Subir Banerjee, learned advocate for the petitioners submitted that in the aforesaid sessions case after conclusion of evidence and examination of accused persons under Section 313 of the Code and after hearing the arguments of both sides, it was pending for judgment. After completion of argument and before delivery of judgment there was a prayer on behalf of prosecution praying for further evidence of medical officer and production of records of Dhupguri P.S. Case No. 69/96. The doctor was examined previously and in his evidence the doctor stated that the post-mortem examination on the body of the deceased Adhanya Mondal was done in connection with Dhupguri P.S. Case No. 69/96. In the post-mortem report which was admitted in evidence and marked as exhibit, the doctor mentioned Dhupguri P.S. Case No. 69/96 and the doctor in his evidence stated the same fact. If the prosecution prayer is allowed at this stage it would amount to fill in lacuna of prosecution evidence. If the prosecution filed the prayer for examination of doctor and production of records of Dhupguri P.S. Case No. 69/96 during stage of recording evidence matter would have been different but, when the case is posted for judgment at such a belated stage prosecution prayer under Section 311 of the Code cannot be allowed. The postmortem report now cannot be changed.
3. Mr, Banerjee further submitted that the learned Additional Sessions Judge without properly applying judicial mind into the matter allowed the prayer of the prosecution under Section 311 of the Code. The accused persons will be seriously prejudiced, if at such a stage the doctor is again examined and the records of aforesaid Dhupguri P.S. Case No. 69/96 are produced in Court. Court must be impartial and should not show any favour either to prosecution or to the defence. The impugned order passed by the learned Additional Sessions Judge being bad in law should be set aside.
4. Mr. Swapan Kumar Mallick, learned Advocate for the State submitted that there is no merit in the revisional application. The prayer made by the learned Public Prosecutor in charge of the sessions case would not amount to fill in lacuna in prosecution case and evidence. Provisions of Section 165 of the Evidence Act would be applicable here. The aforesaid sessions case arose out of Dhupguri P.S. Case No. 63/96 but the post-mortem surgeon inadvertently mentioned Dhupguri P.S. Case No. 69/96 in his evidence and in the post-mortem report. The correction of P.S. case number through evidence of doctor in the post-mortem report does not amount to fill in lacuna of prosecution evidence. It was a mistake apparent on the face of the record and it can be corrected. The provisions of Section 311 of the Code can be invoked by the Court, if the Court finds that fresh evidence or further evidence is required for the just decision of the case. The revisional application having no merit should be dismissed.
5. After hearing the submissions of the learned advocates for the parties and perusing the revisional application and contents thereof this Court is of the view that the submissions made by the learned advocate for the petitioners are not at all acceptable and have no force in the eye of law. It is evident from the materials on record that the aforesaid Sessions Case No. 124/99 arose out of Dhupguri P.S. Case No. 63/96 dated 12.7.96 under Sections 147/148/149/341/ 323 and 302 of the Indian Penal Code (in short IPC). After completing investigation chargesheet was submitted on 29.8.97 under different sections along with Section 302 of the IPC. After commitment of the case to the Court of Sessions, it was transferred to the Court of the learned Additional Sessions judge (Special), Jalpaiguri for trial. After framing of charges prosecution examined 21 witnesses including the post-mortem surgeon. After conclusion of evidence and examination of accused persons under Section 313 of the Code, the argument were heard on 8.4.05 and the case was posted for judgment.
During that stage the learned Public Prosecutor in charge of the case filed application under Section 311 of the Code praying for recalling Dr. N. Dutta (PW 21) and for production of records of Dhupguri P.S. Case No. 69/96.
6. The grounds for filing such prayer as it appears from the copy of the application filed by prosecution is that in connection with the said sessions case the deceased was Adhanya Mondal and the sessions case arose out of Dhupguri P.S. Case No. 63/96. The post-mortem surgeon either due to oversight or inadvertently mentioned in the post-mortem report in respect of deceased Adhanya Mondal as Dhupguri PS. Case No. 69/96. The inquest and all other steps of investigation concerning the deceased Adhanya Mondal was made in connection with Dhupguri P.S. Case No. 63/96 but, due to the mistake of the post-mortem surgeon it was wrongly mentioned in the post-mortem as Dhupguri P.S. Case No. 69/96. For this reason, the prosecution filed the application under Section 311 of the Code praying for examination of the said doctor and for production of records of Dhupguri P.S. Case No. 69/96. The said prayer of prosecution cannot be regarded as filing in lacuna of prosecution case. If records of Dhupguri P.S. Case No. 63/96 and Dhupguri P.S. Case No. 69/96 are placed side by side the mistake would be detected. It may be that Dhupguri P.S. Case No. 69/96 is not at all a case of murder under Section 302 of the IPC. Accordingly, production of case records of Dhupguri P.S. Case No. 69/96 would reveal the truth when records of Dhupguri P.S. Case No. 63/96 is before the Court in connection with Sessions Case No. 124/99. Even if, both the cases are under Section 302 of IPC the FIR, chargesheet would reveal that who was the person or persons murdered in the said two cases. The examination of post-mortem doctor and production of Dhupguri P.S. Case No. 69/96 would be for removal of mistake which is apparent on the face of the record. The learned Judge rightly allowed the prayer of the prosecution under Section 311 of the Code. The further examination of P.W. 21 (doctor) and production of records of Dhupguri P.S. Case No. 69/96 would not amount to fill in lacuna in prosecution case and prosecution evidence. The accused persons through their learned advocates have cross-examined the prosecution witnesses relating to murder of Adhanya Mondal and not relating to murder of any other person. Accordingly, the removal of the mistake concerning the post-mortem report in respect of deceased Adhanya Mondal should be the prime consideration before the learned Judge at such a stage. The charge would reveal who was murdered, so also the FIR. The chargesheet and the evidence of the witnesses would reveal who was the person murdered. The FIR, the chargesheet, the inquest report, the seizure list etc. would reveal that Adhanya Mondal was the person deceased or murdered in which case either in Dhupguri P.S. Case No. 63/96 or in Dhupguri P.S. Case No, 69/96. The post-mortem report of another case cannot be admitted in evidence in connection with murder of another PS case. Accordingly, production of both the P.S. case records is necessary before the learned Judge and further examination of the post-mortem surgeon is similarly important and necessary to remove the defect.
7. The scope of Section 311 of the Code cannot be termed as limited. It is true that the discretion under Section 311 of the Code cannot be used as and whenever requested, but at the same time the discretion requires to be used for the just decision of the case. Section 311 of the Code runs as follows :
311. Power to summon material witness, or examine person present.--Any Court may, at the stage of any inquiry or trial or other proceeding under this Code, summon any person as a witness or examine any person in attendance, though not summoned as a witness, or recall and reexamine, any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case.
8. In this connection it can be emphasised that in the instant matter further examination of doctor (P.W. 1) and production of records of Dhupguri P.S. Case No. 69/96 would be for the just decision of the case to remove the mistake apparent on the face of the record.
9. I like to refer a decision of the Supreme Court in P. Chhaganlal Daga v. M. Sanjay Shaw reported in 2004 SCC (Cri)183 which would reveal position of law in such a situation. The reported case was under Section 138 of the Negotiable Instruments Act and during cross-examination the accused denied service of notice as envisaged under Section 138 of the said Act. The acknowledgement card was produced containing the signature which the accused disowned as his. After the arguments were concluded the case was posted for judgment. During that stage the complainant filed application before the learned Trial Court for receiving additional material (by producing a postal receipt) in exercise of powers under Section 311 of the Code. The Trial Court observed that production of the postal receipt was necessary for the just decision of the case and allowed the prayer. The accused challenged the order of the learned Magistrate before the High Court and, a learned Single Judge of the High Court set aside the order of the learned Magistrate observing that postal receipt cannot be admitted at belated stage to fill up lacuna. The matter then went upto the Supreme Court and the Supreme Court observed that the High Court erred in law in interfering therewith on the assumption that the production of the postal receipt at such belated stage was only to fill up lacuna. In the said decision the Hon'ble Supreme Court referred to other decisions namely, Rajendra Prasad v. Narcotic Cell reported in 1999 SCC (Cr) 1062, Mohanlal Shamji Soni v. Union of India reported in 1991 SCC (Cri) 595 and Ram Chander v. State of Haryana reported in 1981 SCC (Cri) 683. The Supreme Court observed that, '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, 1872 by saying that the Court could not 'fill in lacuna in the prosecution case'. A lacuna in the prosecution is not to be equated with the fallout of a 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.'
10. The aforesaid principle of law is squarely applicable in the instant matter. The proverb 'to err is human, is equally applicable in the instant matter. It may be that the doctor due to oversight or due to inadvertence in the postmortem report mentioned Dhupguri P.S. Case No. 69/96 when in fact the incident was concerning Dhupguri P.S. Case No. 63/96. Section 311 of the Code gives the power to direct taking of fresh evidence or further evidence in respect of witness already examined for the just decision of the case and discretion under Section 311 of the Code can be exercised at any time before delivery of judgment. In the instant case examination of P.W. 21 and production of records of Dhupguri P.S. Case No. 69/96 are required for the just decision of the case.
11. The discussion made above would make it clear that the order of the learned Additional Sessions Judge does not suffer from any illegality or gross irregularity and the said order was correct, legal and proper. There is no ground at all to interfere with the said order passed by the learned Additional Sessions Judge. The revisional application having no merit fails and is dismissed.
12. Criminal section is directed to send a copy of this order to the learned Additional Sessions Judge (Special), Jalpaiguri for information and necessary action.
13. Urgent xerox certified copy be given to the parties, if applied for, expeditiously.