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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.= Mannan Sk & Ors. … Appellants Vs. State of West Bengal & Anr. … Respondents = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41738

 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.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41738- for full text – LAW FOR ALL

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