Can a trial court permit lacuna in prosecution evidence filled up?
Examination of Witness by Court When Prosecution Failed to discharge duty.
The very same decision Mohanlal Shamiji Soni v. Union of India, (supra) which cautioned against filling up lacuna has also laid down the ratio thus :
“It is therefore clear that the Criminal Court has ample power to summon any person as a witness or recall and re-examined any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.’ Dealing with Corresponding Section in the old Code Section 540.
Hidyatullah Jias the learned Chief Justice then was) speaking for a three-judge bench of this Court had said in Jamatraj Kewalji Govani v. The State of Maharashtra, [1967] 3 SCR 415 as follows :-
“It would appear that in our criminal jurisdiction, statutory law Confers a power in absolute terms to be exercised at any stage or the trail to summon a witness or examine one present in Court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the court exercise the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the court is right in thinking that the new evidence is needed by it for a just decision of the case.”
Chinnappa Reddy, J. has also observed in the same tone in Ram Chander v. State of Haryana, AIR (1981) SC 1036:
We cannot therefore accept the contention of the appellant as a legal proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that prosecution discovered latches only when the defence highlighted them during final arguments, 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, The steps which the trial court permitted in this case for re-summoning certain witnesses cannot therefore be spurned down nor frowned at The appeal is accordingly dismissed.
https://indiankanoon.org/doc/1219209/