Trial courts were empowered to accept prosecution’s plea to summon and examine additional witnesses, who had not been listed in the memo of evidence, at any stage of the trial in criminal cases and such acceptance could not be construed as allowing the police to fill up the lacunae in their case, the Madras High Court Bench here has said.
Justice P.N. Prakash made the observation while dismissing a petition filed by an accused in a murder case, Kali, to set aside an order passed by Tirunelveli Principal Sessions Court on December 17 to summon and examine two doctors whose statements under Section 161 of Code of Criminal Procedure had not been recorded by the police during the course of investigation.
The accused had relied upon a judgement passed by the Supreme Court in Rajaram Prasad Yadav versus State of Bihar (2013) to drive home his point that prosecution should not be given a chance at the stage of trial to set right the shortcomings in its investigation. He also claimed that the two doctors were being summoned out of the blue to set right the defects in the prosecution case.
Disagreeing with the submissions, Mr. Justice Prakash said that examination of the two doctors by the trial court was very essential in the present case since one of them had referred the victim in the murder case from a hospital in Shencottah to the Tirunelveli Medical College Hospital and the other doctor had informed the death of the victim to the police.
“These witnesses have been inadvertently left out in the memo of evidence though their examination is essential for the just decision of the case,” the judge said and held that trial courts could invoke their power to summon and examine witnesses, under Section 311 of Code of Criminal Procedure, at any point of time before the final judgement was delivered in the case.
“The only consideration that should weigh in the mind of the court, before invoking Section 311, is whether examination of the witnesses is for the just decision of the case. The defence side will always raise the plea that the witness is being examined to fill up the lacunae and on that ground alone, a petition under Section 311 should not be rejected,” he added.
