The Kolkata police’ simple mistake of not placing as evidence the dying declaration of a man who died 22 years ago has led the Supreme Court now to exercise an extraordinary power that it doesn’t use quite often.
With the statement key to the prosecution to nail the guilt of the accused, the apex court directed the recall of the prime witness (under Section 311 of Criminal Procedure Code), the long-retired 68-year-old Investigating Officer in the case, who had recorded the statement over two decades ago. The court was faced with a predicament to either overlook the prosecution’s error or consider the plea of the accused who would stand to benefit.
Realising that ultimately the cause of justice would be defeated, the bench of Justices Ranjana Prakash Desai and NV Ramana said, “We must 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.”
Exercising its power under the Constitution to ensure complete justice, the bench directed the trial court to proceed with the trial and allowed prosecution to recall the police officer — who had since retired in 2010. The court held, “He (witness) can still be recalled if his evidence appears to the court to be essential to the just decision of the case.”
Since the evidence sought to be brought in was the dying declaration of the deceased, the bench was of the view that this statement was vital to the prosecution and hence, “an essential material to the just decision of the case,” it held.
The accused had his reservations. He argued that recall of IO Dayal Mukherjee in the case after a gap of 22 years would help prosecution fill up its lacunae. He even apprehended that since the officer in question had retired and is 68 years of age, he was likely to be “tutored” by the prosecution. But the Court dispelled this fear as there was always an opportunity to cross-examine the officer.
But one fact favoured the prosecution. On February 18, 2011, the IO in question was examined and re-examined again on May 17, 2011. He had stated in his evidence to have recorded the statement of the victim at the scene of offence. But for the omission by the prosecution not to bring that statement on record, this fact was always known to the accused. Moreover, the prosecution did not waste time to move an application for his recall, which was done within a month of the IO’s re-examination.
The Court observed that its intention was not to help prosecution cover up its fault but to bring the best evidence forward. However, it rued the long delay for trial to commence. “These are systemic delays which are indeed distressing,” the bench said, hoping that the trial was concluded at the earliest.