SHOBHAG MAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioner has preferred this criminal misc. petition under Sec. 482 Cr.P.C. seeking the following relief:-

(2.) Brief facts of the case are that the accused respondents No. 2 and 3 are facing trial for the offence under Ss. 302, 460 and 397/34 of IPC after the first information report dtd. 14/10/2016. During trial, the statements of Smt. Jassu Bai (PW 1) and Shobhag Mal (PW 2) were recorded on 1/5/2017 and 25/5/2017 respectively. On 29/1/2018, learned P.P. filed an application under Sec. 311 Cr.P.C. stating that the statements of PW 1 and PW 2 were recorded on 1/5/2017 and 25/5/2017 and recovered articles deposited in Malkhana were not presented in the Court and hence, could not be identified by the witnesses nor the articles were marked. Hence, it was prayed that these witnesses be recalled. However, the learned trial Court rejected the said application of the prosecution on 19/12/2018 on the ground that the application has been moved to fill up the lacuna. So far as exhibiting the articles is concerned, the I.O. PW 16 Mr. Gehri Lal had appeared in the witness box and the articles were in fact exhibited as 3, 4, 5 and 6.

(3.) Learned counsel for the petitioner has argued that any lacuna which would lead to failure of the prosecution case can be in fact checked in the interest of justice and for the same purpose, the application under Sec. 311 Cr.P.C. moved by the prosecution ought to have been allowed by the learned Court below as the non-identification of articles may lead to absolute acquittal of the accused persons. Just because the articles were not produced from Malkhana at the time statements of the witnesses PW 1 and PW 2 were recorded, prosecution case will face demolition. Learned counsel for the petitioner has relied upon the judgment of the Hon'ble Apex Court in the case of Rajendra Prasad v. Narcotic Cell ( AIR 1999 SC 2292 ), relevant paras Nos. 6, 7 and 11 whereof read as follows:-