Sec.311 Cr.P.C . – Recalling of I.O. for further examination – at the time of cross examination it was came to light that the I.O . recorded a statement of deceased – as the statement of deceased not filed in court along with charge sheet – trial court dismissed the same at it is highly belated stages – High court allowed the revision and set aside the trial court order on the ground that since the accused know pretty well about the record of statement of deceased – no prejudice would be caused to him – on appeal – Apex court held that We must, however, clarify that oversight of the prosecution is not appreciated by us. But cause of justice must not be allowed to suffer because of the oversight of the prosecution. We also make it clear that whether deceased Rupchand Sk’s statement recorded by PW15-SI Dayal Mukherjee is a dying declaration or not, what is its evidentiary value are questions on which we have not expressed any opinion. If any observation of ours directly or indirectly touches upon this aspect, we make it clear that it is not our final opinion. The trial court seized of the case shall deal with it independently.In the result the appeal is dismissed.=
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 22/6/2011 rejected the said
application.
The trial court observed that the case was at the stage of
argument and
no explanation was given by the prosecution as to why the
statement of deceased Rupchand Sk was not brought on record by the
Investigating Officer.
The trial court noted that PW15-SI Dayal Mukherjee
was examined on 18/2/2011 and re-examined on 17/5/2011.
According to the
trial court if the prosecution is allowed to recall PW15-SI Dayal Mukherjee
that would enable the prosecution to fill-up the lacuna.
The trial court
relied on State of Rajasthan v. Doulat Ram[1] and Mohan Lal Shamji Soni v.
Union of India[2].
The trial court observed that re-examination of PW15-
SI Dayal Mukherjee is not essential for the just decision of the case.
The
High Court reversed the trial court’s order.
The High Court observed that
non-exhibiting of the statement of deceased Rupchand Sk was mistake of the
prosecution and no advantage can flow from the said mistake to the accused.
The High Court further observed that existence of the statement was known
to the accused and, hence, no prejudice would be caused to them.=
Apex court held that We must, however, clarify that oversight of the
prosecution is not appreciated by us. But cause of justice must not be
allowed to suffer because of the oversight of the prosecution. We also
make it clear that whether deceased Rupchand Sk’s statement recorded by
PW15-SI Dayal Mukherjee is a dying declaration or not, what is its
evidentiary value are questions on which we have not expressed any opinion.
If any observation of ours directly or indirectly touches upon this
aspect, we make it clear that it is not our final opinion. The trial court
seized of the case shall deal with it independently.
21. In the result the appeal is dismissed.
advocatemmmohan 
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