J.C.Gupta - (1.) -This revision is directed against the order dated 15.5.2001 passed by the Addl. Sessions Judge (Court No. 7) Moradabad in Sessions Trial No. 448 of 1993, State v. Ashwini Kumar Sharma and others, under Section 302, I.P.C. by means of which the trial court has allowed the application moved from prosecution side for summoning witnesses under Section 311, Cr. P.C. It appears that in view of the circular letter issued by this Court, the trial court closed the prosecution evidence without examining Dr. S. U. Siddiqui, S.I. R. K. Punetha, Inspector-R. P. Singh and S.I.-B. N. Nigam. Thereafter an application was moved from prosecution side to summon the aforesaid witnesses under Section 311, Cr. P.C. as their evidence was necessary for a just decision of the case. By the impugned order, this application has been allowed. It may be relevant to mention here that the accused is facing trial in a double murder case of day light and prosecution has also produced injured Smt. Kumkum Sharma as P.W. 2, whose injuries were medically examined by Dr. S. U. Siddiqui. The evidence of Sub-Inspectors who have now been summoned pertains to investigation and their evidence is also necessary for just decision of the case.
(2.) LEARNED counsel for the applicant submitted before the Court that once the trial court had closed the prosecution evidence, it could not summon the aforesaid witnesses to fill up lacuna in the prosecution case. This Court finds no weight in the above submission of the learned counsel. The dictionary meaning of word 'lacuna' is hiatus, blank or gap. It is now well-settled that any laches or mistake committed by the prosecuting agency during the trial cannot amount to lacuna in prosecution case and the word 'lacuna' is confined to gaps left by the investigating agency. In other words, where a particular piece of evidence has not been collected, the Court will not assume the function of the Investigating Officer to bring that piece of evidence on record. A lacuna in prosecution case cannot be equated with the laches or mistakes of the prosecutor or prosecuting agency. Lacuna in prosecution must be understood as inherent weakness or a latent wedge in the merit of prosecution case. But an oversight cannot be treated as irreparable lacuna. No party can be foreclosed from correcting errors. If proper evidence has not been adduced or a relevant material was not permitted to be brought on record due to any inadvertence or mistake of the prosecuting agency, it is the duty of the Court to rectify such mistake for doing justice. After all, function of criminal courts is administration of criminal justice and not to punish a party only for its mistake or laches. The power of the Court is plenary to summon or even recall any witness at any stage of the case, if the Court considers, it necessary, for a just decision. In the present case, as already pointed out above, the evidence of Dr. Siddiqui is necessary as he had medically examined injured Kumkum Sharma who has been produced as P.W. 2 in the trial court while the other three witnesses are also important and material witnesses in order to bring on record the facts and material collected during investigation. The accused persons shall have opportunity to cross-examine them and no prejudice is thus caused to them by the impugned order.
(3.) FOR the above reasons, this Court finds no sufficient ground to make interference in the impugned order and this revision is thus liable to be dismissed. However, having regard to the fact that the trial is old one and the accused is in jail, the trial court is directed to conclude the trial expeditiously strictly on day-to-day basis in accordance with the provisions of Section 309, Cr. P.C. and shall make every endeavour to decide the same within two months from the date a certified copy of this order is produced before him. Revision is accordingly dismissed summarily. Office is also directed to communicate this order to the concerned Sessions Judge forthwith.;