Lacuna in case different from error committed by lawyer during trial; opportunity should be given to correct errors: Kerala High Court

The Kerala High Court on Monday held that a lacuna in a case is different from an error by a lawyer during trial while extracting answers from witnesses, and that opportunities should be given to correct such errors and omissions [Manu Dev v XXX]..Justice K Babu added that the principle of fair trial demands that no party is denied an opportunity to correct such errors and that courts should be “magnanimous” in allowing such errors or mistakes to be corrected.“The lacuna in a case need not be confused with the error that occurred due to an oversight committed by a lawyer during the trial in eliciting relevant answers from the witnesses. Such an error or an omission cannot be understood as “lacuna”, which a Court is not expected to allow the parties to fill up. The lacuna can only be interpreted as an intrinsic weakness of the case of a party. The principle of fair trial demands that no party in a trial can be denied the opportunity to correct errors. The Court should be magnanimous in allowing such mistakes to be corrected," the Court's order stated. .The Court also stressed that a fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner as it entails the interest of the accused, the victim, and of the society. .The Court made the observation while considering a petition to recall the victim for cross-examination in a trial involving allegations of rape and offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).The petitioner was one of the accused before the trial court. All the accused initially engaged the same lawyer to defend them in trial. However, the petitioner later changed his lawyer. Further, the petitioner also contended that his role in the case was different from the other two persons accused in the case. Pertinently, the petitioner appointed a different lawyer only after the examination of the victim and her mother was completed. The newly appointed lawyer conveyed to the petitioner that certain contradictions in the victim’s statements were not brought on record by the earlier lawyer.Hence, the petitioner filed an application under Section 311 of the Code of Criminal Procedure (CrPC) to recall the victim to the stand. The trial court, however, dismissed the application on the ground that recalling the victim to testify would violate Section 33(5) of the POCSO Act. This prompted the petitioner to approach the High Court. Before the High Court, the petitioner pointed out that the victim was no longer a minor and it would not be a violation of Section 33(5) of the POCSO Act, to recall her to testify about the incident. The petitioner further contended that an error committed by the previous lawyer of the petitioner should not be held against him.The Court saw merit in the petitioner's contentions."For the purpose of Section 33(5) of the Act, the relevant age is the age at the time of examination of the witness ... The principle of fair trial demands that no party in a trial can be denied the opportunity to correct errors," the judge said.Further, referring to Section 311 of CrPC, the High Court also explained that the provision aims to determine the truth and render a just decision after discovering all relevant facts and obtaining proper proof of such facts.Hence, the High Court set aside the trial court's rejection of application for recalling the victim for cross-examination. .The petitioner-accused was represented by advocates MP Madhavankutty, Mathew Devassi, Ananthakrishnan A Kartha and Remya M Menon.The State was represented by Public Prosecutor G Sudheer. .[Read Order]