TaxTMI 
TaxTMI 
TaxTMI 
2014 (7) TMI 1362
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.... Rupchand Sk - PW8-Nurul Islam with Raghunathpur Police Station on the basis of which FIR was registered. In the FIR PW8- Nurul Islam named nine persons. Initially the case was registered under Sections 447, 326 read with Section 34 of the Penal Code and Sections 3 and 4 of the Explosives Substances Act. After the death of Rupchand Sk, Section 304 of the Penal Code was added. 4. After the charges were framed the trial began. PW15-SI Dayal Mukherjee, the Investigating Officer, was examined on 18/2/2011. He was re- examined on 17/5/2011. He stated in his evidence that he had recorded deceased Rupchand Sk's statement at the scene of offence. In the cross- examination he stated that he had recorded one page statement of deceased Rupchand Sk. This statement was not brought on record. 5. One month thereafter on 16/6/2011 the prosecution moved an application for recalling PW15-SI Dayal Mukherjee because the prosecution wanted to bring on record statement of deceased Rupchand Sk which it had inadvertently omitted to do. Needless to say that it is the prosecution case that after death of Rupchand Sk the said statement became his dying declaration. 6. The trial court vide order dated 22/6....
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..... In support of his submissions counsel relied on Chandran v. State of Kerala[(1985) Cr L.J. 1288], State of Rajasthan v. Daulat Ram, Mohan Lal Shamji Soni v. Union of India & Ors, Mishrilal and ors. v. State of M.P. and ors [2005(10) SCC 701], Mir Mohammad Omar and ors. v. State of West Bengal[1989 (4) SCC 436]. 9. Mr. Anip Sachthey, learned counsel appearing for the State of West Bengal on the other hand submitted that the application was made just one month after the re-examination of the Investigating Officer. Therefore, there is no delay in recalling him. Statement of deceased Rupchand Sk was not exhibited due to inadvertence and hence for just decision of the case it is essential to recall the Investigating Officer. Counsel submitted that this would not amount to filling-up the lacuna. In support of his submissions counsel relied on P. Sanjeeva Rao v. State of Andhra Pradesh [2012(7) SCC 56], Hanuman Ram v. State of Rajasthan & Ors[2008(15) SCC 652]., Rajendra Prasad v. Narcotic Cell [1999(6) SCC 110] and Mohanlal Shamji Soni 10. The aim of every court is to discover truth. Section 311 of the Code is one of many such provisions of the Code which strengthen the arms of a cou....
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....ection 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 and 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 inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated." This Court further observed as under: "... ... ... Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of t....
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....s done with an object of getting the evidence in aid of a just decision and to uphold the truth." 14. If we view the present case in light of the above judgments, we will have to sustain the High Court's order. PW15-SI Dayal Mukherjee stated in the court that he had recorded the statement of deceased Rupchand Sk. Thus, this fact was known to the defence. He was cross-examined by the defence. Inadvertently, the said statement was not brought on record through PW15-SI Dayal Mukherjee. Rupchand Sk died after the said statement was recorded. The said statement, therefore, became very vital to the prosecution. It is obvious that the prosecution wants to treat it as a dying declaration. Undoubtedly, therefore, it is an essential material to the just decision of the case. Though, the fact of the recording of this statement is deposed to by PW15-SI Dayal Mukherjee, since due to oversight it was not brought on record, application was made under Section 311 of the Code praying for recall of PW15-SI Dayal Mukherjee. This cannot be termed as an inherent weakness or a latent wedge in the matrix of the prosecution case. No material is tried to be brought on record surreptitiously to fill-up the....
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....rn to the judgments cited by the appellants. In State of Rajasthan v. Daulat Ram this Court was dealing with an appeal from an order of acquittal. The prosecution had not proved beyond reasonable doubt that the opium seized was the opium which was sent to the public analyst. At the trial the prosecution had made an application under Section 540 of the old Code (Section 311 of the Code) for summoning three persons under whose custody the seized samples were kept. It was rejected by the trial court. An application was made before the High Court for additional evidence which was later withdrawn. This Court commented on the vacillating approach of the State and observed that the prosecution should not be allowed to fill-up the lacunae left at the trial, at the appellate or revisional stage. This case turns on its own facts and has no application to the present case. 18. Mishrilal, on which reliance is placed by the appellants, has also no application to this case. In Mishrilal a witness was examined and cross- examined in a murder trial on the same day. In Juvenile Court where some of the juveniles were tried, he gave evidence subsequently. He stated that he was not aware as to who at....