DHANNU Vs. STATE OF M.P.

JUDGEMENT

(1.) EVEN if Dr. Agarwal were to be examined to prove the post -mortem report given by Dr. Bhatt, even then he could not have proved the said post -mortem report and, at best, he could only prove the signature of Dr, Bhatt appearing on the post mortem report and not the contents of the said report. It appears that the learned Additional Sessions Judge, Narsinghpur, had also overlooked this fact that Dr. Bhatt had already been examined as a prosecution witness in the case, although the impugned order shows that he had perused the record also. This does not appear to be correct, because, had the learned Additional Sessions. Judge, Narsinghpur, perused the record, then he could have seen that Dr. Bhatt had already been examined as a prosecution witness (P.W. 14), examined on 3.4.1991. It may also be incidentally mentioned here, that the order sheet dated 3.4.91 does not mention about Dr. M. K. Bhatt, having been examined on that date, although the time taken in recording his evidence, has been noted. For the aforesaid reasons, the impugned order dated 21.8.1991, cannot be upheld as the same is not only incorrect, but the same is contrary to the record and the same has been passed without caring to see the record.

(2.) NOW , as regards the submission made on behalf of the applicants, that, under the provisions of section 311 of the Code of Criminal Procedure, the lacuna left on behalf of the prosecution, cannot be filled up, otherwise it would cause great prejudice to the a3cused persons as they are facing the trial for a period of over four or five years, It is no doubt true that resort to the provisions of section 311 of the Criminal Procedure Code cannot be taken to fill up the lacuna left by any party. However, 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 recall or 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 inchoste, inconclusive and speculative presentation of facts, the ends of justice would be defeated. The very usage of the words such as '.any Court', 'at any stage', 'or any enquiry, trial or other proceedings', any person' and 'any such person' clearly spells out that 'this section is expressed in widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow for any discretion but it binds and compels the Court to take any of the aforementioned two steps if the fresh evidence to be obtained is essential to the just decision of the case - as has been laid down by the Supreme Court in AIR 1991 SC 1346. A careful perusal of section 311 of Cr. P.C. shows that the object underlying section 311 of the ,Code is that there may not be failure of justice on account of mistake of either party in bringing valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. Therefore, what a Court has to see is whether it is essential to the just decision of the, case, and if the Court reaches a conclusion that the evidence of any witness is necessary for a just decision of the case, then that witness can be recalled for further examination even if the party which had to examine the said witness, had, by mistake or otherwise, failed to examine him.