What does not amount to filling up lacuna in prosecution case
Whenever a Court is inclined to exercise powers under Section 311 of the code or Section 165 of the Evidence Act the objection very often taken is that such exercise would cause "filling the lacuna" in the prosecution case or the defence case. If any new material is to come on record can it be forestalled on the premise that would fill up the lacuna in the prosecution or defence? Lacuna in the prosecution is not to be understood as corollary of any oversight committed by the Public Prosecutor in producing a material or in eliciting an answer from a witness. A fallout of an error "committed while adducing evidence is not what judicial pronouncements termed as "lacuna" in the case. "To err and human" is an adage which gained wide acceptance. When any bid is made to efface or wipe out the effect of such error it would not be in the interest of justice to forclose such attempt on the premise that it would fill up a lacuna in the case. Lacuna in the prosecution is the inherent weakness or the latent wedge in the prosecution matrix, the advantage of which should normally go to the accused in the criminal trial. If such an advantage for the accused is allowed to be watered down or diluted, the advantage would get transposed into a disadvantage for the defences and consequently serious prejudice would be caused to the accused. The Court, while exercising powers under Section 311 of the Code or Section 165 of the Evidence Act should guard against causing such prejudice to the defence or to the prosecution. But that is no reason to pre-empt the right of a party to correct any error or to adduce proper and relevant evidence which through any inadvertence one party would have missed or overlooked at an earlier stage.
Crl. M.C. No. 2143/93
1994(1)KLJ54; 1994(3)crimes 1032 kerala
IN THE HIGH COURT OF KERALA
Decided On: 07.12.1993
Appellants: Suja P. Chacko
Vs.
Respondent: State of Kerala
Vs.
Respondent: State of Kerala
