Additional Document Can Be Produced After Prosecution Evidence Is Complete If It Is Vital And Omission Was Bonafide Mistake: Kerala High Court

The Kerala High Court on Thursday held that an additional document can be produced after prosecution evidence is complete if the omission of such document was a bonafide mistake and the document is purported to be vital.

A single bench of Justice Bechu Kurian Thomas was considering a challenge to an order of the Additional Sessions Court that permitted the prosecution to produce an FIR to show the motive of the accused, after the prosecution had completed its evidence. The accused who is being tried for offences under Section 302 and 307 of the Indian Penal Code, opposed the production of the additional document. The court however, observed that

“…there is no embargo on the production of additional documents during a trial if they are essential for arriving at a proper decision. If the requirements of justice command the production of such a document, the trial judge can permit such production, based on principles of fair play and good sense. No fetter can be placed on the right of the party to produce such a document.”

Public Prosecutor Adv. Vipin Narayan argued that the FIR produced as additional document was a vital piece of evidence required to show the motive of the accused, i.e prior enimity, as it related to a previous incident of assault by the accused. The prosecution submitted that it had wrongly produced another FIR in evidence, by a bonafide mistake as the said FIR also related to an incident between the accused and deceased.

The counsel for the petitioner Adv. John S. Ralph contended that the defence had examined witnesses based on the FIR it later alleged to have been the wrong document. The petitioner averred that the prosecution was trying to vary its case after realising it had failed to prove motive. The petitioner argued that this was only an attempt to delay the proceedings and to overcome the lacuna in the prosecution’s case.

The court observed that while it is well settled law that the prosecution cannot fill up any lacuna in its case during the trial:

“However, the term lacuna cannot be interpreted to mean the deficiency of the prosecutor. The term lacuna means an inherent defect or an inherent flaw in the prosecution case. The lacuna that cannot be permitted to be filled up can only mean the inherent flaw or defect in the prosecution case. A defect in the prosecution case is not the equivalent of a human error committed by the prosecution during the evidence stage either in producing relevant material or in eliciting answers. An oversight on the part of the prosecutor cannot be termed as a lacuna in the prosecution case. The principle that prosecution is not permitted to fill up a lacuna in its case therefore cannot be extended to mean those errors committed during the conduct of a trial, brought about on account of human frailties or mistakes.”

The court referred to the decision of the Supreme Court in P. Chhagan Lal Daga v. M. Sanjay Shaw [(2003) 11 SCC 486] which observed that “the power to receive evidence in exercise of Section 311 of the Code could be exercised "even if evidence on both sides is closed" and such jurisdiction of the Court is dictated by the exigency of the situation and fair play”.

The court refused to set aside the order of the Additional Sessions Court allowing the application of the prosecution under Section 311 of the CrPC for production of an additional document after prosecution evidence was complete. The court held that:

“I am satisfied that the omission to produce FIR No.54 of 2009 was a bonafide mistake which requires to be rectified. Fair play and good sense demand that the production of a document purported to be vital is permitted.”

Case Title: Thachanalil Shyju V State of Kerala

Citation: 2023 LiveLaw (Ker) 98

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