Case Title: Hena Khatoon and Another v State of Kerala and Another

The Kerala High Court observed that a petition to seek re-examination of a witness, an examination of a new witness or a summons of new documents can be allowed only to meet the ends of justice. The power conferred under S.311 CrPC should be invoked by the Court only in the ends of justice. It should not be used to fill the lacuna of evidence, to give advantage to one party or as a disguise for a re-trial.  The power is to be exercised only for strong and valid reasons and it should be exercised with caution and circumspection. The Court has wide power under S.311 CrPC to recall witnesses for re – examination or further examination, if it is necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case.

Justice A. Badharudden observed: “The power under Section 311 CrPC must therefore, be invoked by the court only in order to meet the end of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection.”

The 1st petitioner is accused of forcefully hitting the head of a 3-year-old boy on the wall, which caused his death due to internal bleeding. The accused made a case during the trial that the death actually occurred due to medical negligence. After examining all prosecution witnesses and documents, the prosecution filed petitions before the trial judge to allow the re-examination of a doctor who is a consultant in forensic medicine, to summon treatment records of the child and to examine a neurosurgeon of the hospital where the child was being treated. These petitions were allowed by the trial court.

The petitioner filed this case against the decision of the trial Court. The petitioner alleged that the prosecution is trying to fill up the lacuna in evidence after understanding the defence case. The defence case was that the death of the child occurred due to medical negligence. The prosecution argued that the petitions were filed even before the compelition of prosecution evidence. The prosecution argued that S. 311 of the Code of Criminal Procedure entitles the Court to call witnesses or documents or re-examine witnesses even before pronouncing the judgment.

The prosecution stated that since the accused had made an argument that the death was due to medical negligence, it was necessary to examine the doctors and medical documents to prove the truth. The original treatment records could not be collected during the investigation. It was argued that allowing the petitions filed by the prosecution was necessary to meet the ends of justice. The prosecution further added that no prejudice would be caused to the accused by this. The Court observed that the trial Court while allowing the petitions gave sufficient reasons. The order said that the trial had not crossed the stage of prosecution evidence. The accused had also made suggestion to the witness that the death of the child was due to negligence in treatment. Therefore, the bench held that no prejudice would be caused to the accused. Furthermore, this would not provide a new case to the prosecution. This would just help the prosecution in adducing evidence which is necessary for making the just decision, it said. Hence, the High Court decided not to interfere with the order of trial court.

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