As to what exactly is 'lacuna' in the prosecution case
is understood and explained in number of decisions, Suja P.Chacko v. State of Kerala (1994 [1] KLT 148), Raghunathan v. State of Kerala (1995 [1] KLT SN Case No.33 Page 25) and Rajendra Prasad v. Narcotic Cell (1999 [2] KLT 779 [SC]). It is held that 'lacuna' in the prosecution case is not to be understood as a corollary of any oversight committed by the Public Prosecutor in producing a material or in eliciting an answer from a witness. A fall out of an error committed while adducing evidence is not what judicial pronouncements termed as lacuna in the case. To err is human is an adage which gained wide acceptance. When any bid is made to efface or wipe out the effect of such error it would not be in the interest of justice to foreclose such attempt on the premise that it would fill up a lacuna in the case. 'Lacuna' in the prosecution is the inherent weakness or the latent wedge in the prosecution matrix., the advantage of which should normally go to the accused in the criminal trial.
Kerala High Court
Suresh, S/O.Velankutty, Suresh ... vs State Of Kerala Represented By on 27 May, 2011
Petitioner is the second accused in S.C. No.272 of 2006 of the court of learned Additional Sessions Judge-II, Palakkad facing trial along with other accused for offences punishable under Sections 364, 302, 392 and 201 read with Section 34 of the Indian Penal Code. The Medical Officer who (allegedly) conducted the postmortem examination on the body of the deceased was examined as P.W.1. According to the petitioner P.W.1 had not produced the original postmortem certificate when summoned and instead, the photocopy of requisition for postmortem examination (given by the Investigating Officer) and postmortem certificate were marked in the course of examination of P.W.1 subject to the objection of petitioner and other accused. While so, on 04.04.2011 learned Public Prosecutor filed a petition (Annexure-3) under Section 91 of the Code of Criminal Procedure (for short, "the Code") to summon the original postmortem note and carbon copy of postmortem certificate. That petition was opposed by petitioner and other accused contending that attempt is to fill up the lacuna, CRL.M.C. No.1529 of 2011
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petitioner and other accused have shaped their defence as if there was no postmortem examination and they are not given a copy of documents summoned. According to the petitioner, summoning of documents would cause serious prejudice to the petitioner and other accused. Learned Additional Sessions Judge, rejecting the objection of petitioner and other accused passed Annexure-A5, order dated April 12, 2011. Annexure-A3, petition was allowed and documents were summoned. That order is under challenge. Learned counsel contends that under Sec.173 (5) of the Code all documents relied on by the prosecution are to be filed along with the final report, Sec.207(3) of the Code requires that copy of all statements and documents are to be furnished to the petitioner and other accused and that question whether prejudice will be caused or not does not arise when copy of documents have not been furnished to the petitioner and other accused. Learned counsel placed reliance on the decisions of a Division Bench of this Court in Joseph v. S.I. of Police, Munnar (2005 [2] KLT 269) and in particular paragraphs 142 and 144. I have heard the learned Public Prosecutor who defended the impugned order.
2. As to what exactly is 'lacuna' in the prosecution case CRL.M.C. No.1529 of 2011
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is understood and explained in number of decisions, Suja P.Chacko v. State of Kerala (1994 [1] KLT 148), Raghunathan v. State of Kerala (1995 [1] KLT SN Case No.33 Page 25) and Rajendra Prasad v. Narcotic Cell (1999 [2] KLT 779 [SC]). It is held that 'lacuna' in the prosecution case is not to be understood as a corollary of any oversight committed by the Public Prosecutor in producing a material or in eliciting an answer from a witness. A fall out of an error committed while adducing evidence is not what judicial pronouncements termed as "lacuna" in the case. "To err is human" is an adage which gained wide acceptance. When any bid is made to efface or wipe out the effect of such error it would not be in the interest of justice to foreclose such attempt on the premise that it would fill up a lacuna in the case. 'Lacuna' in the prosecution is the inherent weakness or the latent wedge in the prosecution matrix., the advantage of which should normally go to the accused in the criminal trial.
3. In the case on hand P.W.1 was examined to prove that he has conducted the postmortem examination on the body of the deceased. It is not in dispute that though subject to the objection raised by petitioner and other accused the photocopy of CRL.M.C. No.1529 of 2011
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requisition for postmortem examination and the postmortem certificate were marked when P.W.1 was in the box. Prima facie it is difficult to accept the contention that attempt of learned Public Prosecutor in requesting to summon the original postmortem note and carbon copy of postmortem certificate is an attempt to fill up any lacuna. I can understand the failure to produce the documents summoned only a fall out or error.
4. The decisions cited by the learned counsel do not say that in such circumstance it is beyond the power of prosecution to produce relevant documents even if the same were not produced along with the final report under Sec.173(5) of the Code. In paragraphs 142 and 144 of the decision relied on by the learned counsel what is highlighted is the necessity to produce relevant documents under Sec.173(5) of the Code and the responsibility of the prosecution to give copy of such documents/records to the accused. There can be no quarrel regarding that. In Central Bureau of Investigation v. R.S. Pai (2002 [2] KLT 149) the Supreme Court has held that there is no bar to produce additional documents after charge sheet is submitted and that the word "shall" in Sec.173(5) of the Code is only directory and not mandatory. In the circumstances CRL.M.C. No.1529 of 2011
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the contention that on account of non-production of the documents now sought to be summoned along with final report the prosecution is precluded from producing such documents cannot be accepted.
5. So far as the argument that non-supply of documents sought to be summoned to the petitioner and other accused would result in prejudice to the petitioner and other accused is concerned I find from the order under challenge that there is only an order summoning the documents. Learned Additional Sessions Judge allowed the petition and directed that process be issued to cause production of the documents. I make it clear that if recalling and further examination of P.W1 or examination of any other Officer to prove the documents summoned is required it shall be done only after documents are summoned and copy of those documents are given to the petitioner and other accused. With the above direction this Criminal Miscellaneous Case is is dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv
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