Jamir Ali Vs the State of Assam and Anr.

Heard Mr. Z. Alam, learned Counsel appearing for the petitioner. Also heard Mr. P. S. Lahkar, learned Additional Public Prosecutor for the State respondent and Mr. S. Nawaz, learned Amicus Curiae appearing for the respondent No.2.

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2. By way of this petition under Section 482, read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C”), the petitioner is challenging the impugned order dated 20.08.2018 passed in Sessions Case No. 70/2017 by learned Additional Sessions Judge (FTC) No.4, Kamrup (M), Guwahati, whereby the prayer of the petitioner for examining the Headmaster of Santipur Lower Primary School, Kamrup (M) as Court witness and also for directing him to produce and to exhibit the admission register and also to produce the extract copy of the relevant page of the admission register was rejected.

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3. The facts of the case is that on 12.05.2016 the informant/PW-2 lodged an FIR against the respondent No.2/accused alleging inter-alia that by way of impersonating, the accused misrepresented himself as brother of the victim and fraudulently kidnapped her.

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Accordingly, a case was registered being Gorchuk P.S. case No. 248/2016 under Section 419/366(A) of IPC. Thereafter, the Investigating Officer investigated the case and submitted charge-sheet which was against the respondent No.2/accused under Section 419/366-A/376 of IPC. Thereafter, the Court of learned Additional Sessions Judge (FTC) No.4, Kamrup (M), Guwahati, framed charge under Section 366 of IPC against the petitioner and conducted the trial thereof. Thereafter, prosecution adduced 6(six) prosecution witnesses and after completion of the evidence, the petitioner filed a petition under Section 311 of Cr.P.C. with a prayer to examine the Headmaster of Santipur Lower Primary School, Kamrup (M) as a court witness. However, the said petition was rejected by the trial Court by order dated 20.08.2018. Situated thus, the aforesaid criminal revision petition has been filed.

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4. Mr. Z. Alam, learned Counsel for the petitioner submits that the order of the trial Court in rejecting the application for examining the headmaster is palpably erroneous inasmuch as in view of the discovery of the certificate issued by the concerned school indicating the year of birth of the victim as 1999, it has become imperative to bring the said evidence on record in the interest of justice.

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5. Mr. S. Nawaz, learned Amicus Curiae appearing for the respondent No.2. fairly submits that since additional information as regards the age of the victim has come out after the closure of the evidence, it was imperative for the

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trial Court to allow the examination of the headmaster as sought for. In respect of the aforesaid submission, he fairly relies upon the decision of the Apex Court in the case of Rajendra Prasad Vs Narcotic Cell , reported in (1996) 6 SCC 110 .

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6. Mr. P. S. Lahkar, learned Additional Public Prosecutor for the State respondent also fairly concedes that the application for examination of the headmaster who if appeared could have thrown light to the correct age of the victim, ought to have been allowed by the trial Court, which being the deciding factor of the case in hand.

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7. I have given my prudent consideration to the arguments made by the learned Counsel for both the contending parties, and also perused the material available on record.

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8. Apt to reproduce the relevant portion of the application filed by the petitioner for examining the headmaster which is reproduced hereunder for ready reference:

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“2. That the petitioner is the father of the deceased victim girl, and he is the P.W. 1 of this case.

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3. That the P.W. 1 was examined on 03.08.2017 and though the petitioner was examined as P.W. 1 but at that time no certificate showing the date of birth of the victim girl was available with him and accordingly he could not inform this Hon'ble Court regarding the actual date of birth of the victim girl.

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4. That the P.W.1/father of the deceased victim girl thereafter, applied for the school certificate and accordingly the Head-master of the said

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School issued a certificate on 22.03.2018 showing the date of birth of the victim.

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5. That the petitioner begs to state that accordingly Hon'ble Court may examine the Headmaster, Santipur Lower Primary School, Guwahati9 and also direct the concerned Head-master to produce the Admission Register and also to produce an extract copy of the relevant page of the admission register to prove the age of the victim girl and also to establish that the deceased victim girl was minor at the time of incident.

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6. That the petitioner begs to state that it is most essential to produce and exhibit the said School Certificate for proper adjudication of the case and also if the Hon'ble Court may be pleased to allow the concerned Head-master for examining as court witness then it will not change the nature and character of the case, rather it will be helpful for this Hon'ble Court for proper adjudication of the case.

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7. That this petition is made bonafide for the ends of justice.

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It is therefore prayed that your Honour would graciously be pleased to admit this petition and also be pleased to allow for examining the Head- master, Santipur Lower Primary School, as Court witness and also direct him to produce and to exhibit the Admission Register and also to produce an extract copy of the relevant page of the admission register and also to prove the school certificate issued by him and/or pass any other order(s) as your Honour may deem fit & proper for the ends of justice. ”

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9. Reading of the aforesaid application it is apparent that at the time when PW-1 was examined the school certificate of the victim girl was not available with him. It is further apparent that subsequently on 22.03.2018, the PW1/petitioner procured the said certificate from where it

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appears that the victim was born in the year 1999 and not 1998 as deposed by him during his examination-in-chief before the trial Court. It appears that the trial Court by order dated 20.08.2018 rejected the said application. Operative portion of the order of the trial Court is reproduced hereunder for ready reference:

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“5. Now let us examine the facts of the case. The petitioner as PW1 has been already examined and cross-examined in this case on 3.8.17. The case was initially instituted by filing an FIR on 12.05.16 and chargesheet was filed on 27.06.16 on the basis of investigation and the case was committed to the court of Session on 08.03.17. It appears that charge in this case was framed against the accused on 8.6.17. The petitioner who is the father of the victim was examined by this court on 03.08.17 and he clearly stated on oath the birth year of his daughter i.e. victim as 1998 during his evidence before this court and now come with a certificate obtained on 22.3.18 where birth year of the victim mentioned as 1999. The evidence of all the witnesses have also been exhausted and the prosecution evidence has been closed on 8.5.18 at the instance of the Id. Addll. PP and after recording statements of accused u/s 313 Cr.P.C. the case was fixed for argument. Record reveals that Id counsel for the petitioner availed adjournment on 19.6.18 when the case was fixed for argument and thereafter on the next date they have filed the instant petition at the argument stage of the case after obtaining a school certificate much after completion of investigation as well as evidence of this case.

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6. It is well settled that section 311 Cr.P.C. confers power to the court at any stage of trial to summon any person as witness or recall and re-examine any person already examined if his evidence appears to be essential for just decision of the case. It is equally well settled that power u/s 311 Cr.P.C. cannot be exercised to fill up the lacuna in the case of prosecution. Although the court

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possesses wide discretion but for exercise of the power, there has to be reason and material justifying the same. Here in the present case on perusal of the evidences of the PWS already examined by the prosecution, I am of my considered view that there is no cogent ground to allow the petition and it appears to me that the petition so filed by the petitioner is nothing but an attempt on the part of the petitioner to fill up the lacuna in the prosecution case.”

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10. Reading of the aforesaid order of the trial Court it is apparent that the trial Court rejected the application for examining the headmaster solely on the ground that the petitioner tried to fill up lacuna in the case of the prosecution. It appears that the examination of the headmaster of the concerned school is sought to be brought on record for ascertaining the correct age of the victim which is a decisive factor in the case in hand as no school certificate indicating the age of the victim was available with the petitioner at the time of deposing before the trial Court.

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11. That being so, it cannot not be said that the petitioner is seeking examination of the headmaster only to fill up the lacuna in the case of the prosecution.

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12. Apt to refer to Section 311 of the Cr.P.C. which reads as hereunder: -

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“ 311. Power to summon material witness, or examine person present - Any Court may, at any stage of any inquiry, 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 re-examine any person already examined; and the Court shall

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summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.”

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13. Reading of the aforesaid, it is crystal clear that the Court has been empowered to summon any person at any stage of enquiry or trial or other proceeding where it is essential.

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14. Reference is made to the decision of the Apex Court in the Case of Rajendra Prasad (Supra) , wherein the apex Court has held that oversight or mistake during conducting of case cannot be understood as a lacuna and so can be corrected in exercise of power confined under Section 311 of Cr.P.C. Paragraph 7 and 8 of the aforesaid judgment is reproduced hereunder for ready reference:

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“7. 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 the lacuna in the prosecution case’. 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.

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8. Lacuna in the prosecution 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

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lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.”

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15. Reading of the aforesaid, it is clear that no party in a trial can be foreclosed in correcting errors. That being so, I am of the considered view that the trial Court has committed a palpably manifest error in not allowing the prayer of the petitioner for examining the headmaster whose evidence is essential for a just decision of the case. Therefore, the impugned order of the trial Court is liable to be interfered with.

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16. Accordingly, the impugned order dated 20.08.2018 passed in Sessions Case No. 70/2017 by learned Additional Sessions Judge (FTC) No.4, Kamrup (M), Guwahati, is hereby set aside and quashed.

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17. Upon producing the certified copy of this Court’s order, let the trial Court call the Headmaster of Santipur Lower Primary School, Kamrup (M) as a Court witness for examination and also direct him to produce and to exhibit the admission register and the extract copy of the relevant page of the admission register and thereafter, proceed in accordance with law.

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18. The criminal petition accordingly, stands allowed and is disposed of.

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19. In appreciation of the assistance provided by the learned Amicus Curiae, the appropriate fee payable to him should be paid by the State Legal Services Authority .

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JUDGE

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Comparing Assistant

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Jamir Ali v. the State of Assam and Anr.

Case brief

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Jamir Ali v. the State of Assam and Anr.

Case brief

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