Govinda Reddy vs State

Arunachalam, J.—The Petitioner, who is the sole accused in S.C. No. 51 of 1984, challenges the order of the Second Additional Assistant

Sessions Judge, Chengalpattu dated 4th February, 1986 made in Crl. M.P. No. 323 of 1985 allowing the prosecution to recall P.W.3, Dr. Chithra

for further examination-in-chief.

A few facts are necessary for the disposal of this revision. The Petitioner is being prosecuted for the alleged commission of an offence

punishable u/s 376, I.P.C. After closure of the prosecution case, the Petitioner was questioned u/s 313, Code of Criminal Procedure and

thereafter, the prosecution as well as the defence submitted their arguments, written and oral, before the learned trial Judge. The Public Prosecutor

pleaded for time to reply to the arguments advanced by the defence counsel and such time as prayed for was granted. While so, on 17-12-1985,

learned Public Prosecutor filed Crl. M.P. No. 323 of 1985, u/s 311, Code of Criminal Procedure to recall P.W.3 for further examination-in-chief.

In the petition, the prosecution had stated, that Dr. Chithra (P.W.3), had not deposed pointedly that the injury on the victim girl could have been

caused at the time alleged. The said witness had given opinion that the victim girl could have been forcibly raped in view of the irregular vaginal tear

in the vagina wall, which had been sutured. The doctor had also deposed that recent intercourse could have taken place and the said fact had been

mentioned in Exhibit P.2, certificate issued by the Medical Officer. The petition also reads that in the interests of justice, P.W.3 had to be recalled

for the purpose of eliciting her opinion as to the time of the alleged rape, since such evidence appears to be essential for the just decision of the

case.

The Petitioner filed a detailed counter before the learned trial Judge, wherein the closure of the prosecution case as well as the arguments

advanced by both Counsel, have been stated. In the counter, it has been specifically pointed out, that the prosecution had not elicited in Chief

Examination of P.W.3, that the injury sustained by the victim P.W.2, could have been caused at the time and in the manner alleged by the

prosecution. It has also been stated in the counter, that after the defence had concluded its arguments, taking a specific point on this vital omission,

the prosecution had chosen to file the petition unfairly, u/s 311, Code of Criminal Procedure, to fill up lacuna.

Arguments were advanced by both Counsel and ultimately the trial Judge passed a short order, that he was of opinion, that recalling of the

witness (P.W.3) was essential to the just decision of the case.

Mr. K.N. Basha, learned Counsel appearing on behalf of the Petitioner contended, that by allowing the Petitioner filed by the prosecution,

learned trial Judge had given an opportunity to the prosecution, to fill up the lacuna in their evidence, and such a procedure would be contrary to

the law laid down by this Court and the apex forum.

I have heard Mr. R. Shanmughasundaram, learned Additional Public Prosecutor appearing on behalf of the Respondent.

Section 311, Code of Criminal Procedure consists of two parts. The first part gives discretion to the Court to summon any person as a witness

or examine any witness in attendance, though not summoned as a witness, or to re-call and re-examine any person already examined at any stage

of the enquiry or trial or other proceeding. The second part makes it obligatory on the part of the Court to summon and examine or re-call and re-

examine any such person, if his evidence appears to it to be essential to the just decision of the case. The first part of the Section therefore confers

wide powers on the Court; but wider the powers, the greater is the caution to be exercised by the Court, while utilizing the discretion vested in it.

The first part is permissive and the second part is obligatory. At the same time, it must be noted, that the limitation to the exercise of powers under

this Section is that the prosecution should not be allowed to fill up a gap in evidence. The decision of the Supreme Court in Jamatraj Kewalji

Govani Vs. The State of Maharashtra, will apply squarely to the facts of this case.

The prosecution owed a duty to elicit in the chief-examination of P.W.3, the time and manner in which the victim had sustained injuries, found on

her. At least after P.W.3 was cross-examined, the Prosecutor in charge of the case must have been alert and re-examined P.W.3 on this salient

feature. A non-vigilant Prosecutor, had not chosen to elicit from P.W.3, on important fact in the prosecution case. To satisfy myself, I perused the

wound certificate issued by the Medical Officer as well as the statement recorded during investigation from P.W.3, by the investigating agency. At

no point of time, the prosecution had elicited from the Medical Officer that the injury found on P.W.2, the victim, could have been caused at the

time and in the manner alleged by the prosecution. The prosecution, having failed to do so, at several stages, cannot be now permitted to fill in a

lacuna after the defect was pointed out, during the course of arguments. It is rather unfortunate that the Public Prosecutor in charge of the case had

not conducted the prosecution with care. Such instances are not infrequent, but then on account it, the accused cannot be made to suffer prejudice,

by allowing the prosecution to rectify such laches by having recourse to Section 311 Code of Criminal Procedure. The trial Judge has also not

stated, as to how he had opined, that the re-calling of P.W.3 was essential to the just decision of the case, without discussing these serious

infirmities. It cannot also be overlooked, that the trial Court had acted, not suo motu, but at the instance of the prosecution and while doing so, had

overlooked the material defects in the conduct of the prosecution. The mere repetition of the words in the Section, without expressing reasons

would not justify exercise of powers u/s 311 Code of Criminal Procedure. The order of the learned Sessions Judge cannot be sustained.

In the result, this revision is allowed and the order of the learned Sessions Judge in Crl. M.P. No. 323 of 1985, dated 4-2-1986, shall stand set

aside.