Omission To Include Forensic Expert In Witness List Is Not An Attempt To Fill Inherent Lacuna If Reports Are Part Of Judicial Record: Kerala High Court

The Kerala High Court dismissed a criminal miscellaneous petition challenging a trial court's order that permitted the prosecution to summon an additional expert witness, ruling that the inadvertent omission to include the author of a Forensic Science Laboratory (FSL) report in the original witness list constitutes a rectifiable procedural oversight rather than a strategic attempt to fill an inherent gap (lacuna) in the case.

It was emphasized that since the investigating agency had formally initiated the forensic evaluation and the resulting laboratory reports were already part of the judicial record before the trial commenced, summoning the Assistant Director (Documents) of the FSL to formally prove those records introduces no surprise element or prejudice to the accused, especially when the defense retains full liberty to cross-examine the witness.

The Bench of Justice CS Dias observed, "The prosecution had already initiated the process of obtaining expert opinion before filing the charge sheet, and the resulting FSL reports are part of the records. Consequently, the omission to cite the author of the reports (expert) as a witness can only be regarded as an inadvertent lapse and not as an attempt to fill an inherent lacunae in the prosecution case...It is well settled that the concept of a fair trial encompasses fairness not merely to the accused but equally to the prosecution and to society at large. Therefore, the mere omission to include the name of a witness in the witness list cannot, by itself, constitute a valid ground to deny the prosecution an opportunity to adduce evidence relating to a material fact already borne out by the record."

Advocate KP Prasanth appeared for the Petitioner, while Senior PP CS Hrithwik appeared for the Respondent-State.

Brief Facts of the Case

The petitioner approached the High Court challenging an order passed by the Trial Court that allowed an application filed by the prosecution to summon an additional expert witness. The case originated from a criminal complaint registered by the local police involving serious charges, including murder, criminal conspiracy, and forgery.

The Investigating Officer had obtained permission from the committal court to forward several critical documents, including a disputed Will and specimen signatures, to the Regional Forensic Science Laboratory (FSL) for expert analysis. However, owing to the imminent expiry of the statutory period prescribed for investigation, the final report (charge sheet) was submitted before the FSL reports could be received.

The laboratory subsequently forwarded the expert opinions directly to the Trial Court, where they remained part of the judicial record. During the trial, after examining a substantial number of witnesses, the prosecution realized it had inadvertently failed to include the author of the FSL reports in the witness list. Consequently, the prosecution moved an application under the relevant provisions of the law to summon the Assistant Director (Documents) of the FSL to prove the reports. The Trial Court allowed the request, prompting the petitioner to file the present petition.

Contentions of the Parties

It was argued by the Petitioner-Accused that the prosecution's application came as a total surprise and was a belated attempt to fill up the lacunae in its case at the fag-end of the trial. It was contended that the final report lacked any specific disclosure regarding the disputed documents, their transmission to the laboratory, or the pending reports. It was urged that allowing an additional witness at this late stage would cause grave prejudice to the defense, undermine the right to a fair trial, and cast serious doubt on the authenticity of the evidence.

The State opposed the petition, stating that the action to secure expert opinion was initiated well before the filing of the charge sheet, and the omission to name the expert in the witness list was purely accidental. It was argued that the documents were already part of the court records and no new material was being sprung upon the defence. The prosecution maintained that no prejudice would be caused to the accused, as the defense would retain the full liberty to cross-examine the expert witness.

Observations of the Court

The High Court perused the case diary and observed that the petitioner's factual claim was incorrect, as the records explicitly reflected that the documents had been forwarded to the FSL prior to the submission of the final report.

The Court noted that a clear distinction must be drawn between an inherent lacuna in the prosecution's case and a mere oversight or inadvertent error committed by a public prosecutor. It observed that procedural mistakes or omissions arising out of human error should not be equated with a fundamental weakness in the matrix of the case.

Relying upon well-settled precedents of the Supreme Court, the Court observed that criminal courts are vested with wide and enabling powers to summon or recall any witness at any stage if their evidence is considered essential to arrive at a just decision and ensure the proper administration of criminal justice.

The Court highlighted that the concept of a fair trial encompasses fairness not just to the accused, but equally to the prosecution and society at large. Since the FSL reports were already part of the record, the introduction of the expert witness did not amount to bringing in new or surprise evidence.

The Court said, "In case a person is not listed as a witness in the charge sheet, but later the prosecution desires to cite that person as an additional prosecution witness, then the prosecution can move an application to bring this person as a prosecution witness. It is then for the Court to decide whether such a person is required as a witness or not. If the Court finds that such a person should have been examined as a prosecution witness and he/she was omitted from the list of witnesses due to some oversight, mistake or for any other reason, the Court may allow the application and as such a person can be examined as a prosecution witness."

Concluding that the omission was a rectifiable lapse rather than an attempt to manufacture a new case, and noting that the petitioner would have a full and effective opportunity to cross-examine the witness, the Court found no illegality or infirmity in the Trial Court's order and dismissed the petition.

Cause Title: Jollyamma Joseph@Jolly v. State of Kerala [Neutral Citation: 2026:KER:39029]

Appearances:

Petitioner:Advocate K.P. Prasanth, Advocate T.A. Ajmal Hussain, Advocate Arunraj S., Advocate Hijas T.T., Advocate Sunitha K.G., Advocate Anitha V.A., Advocate Aswin T. P., Advocate Rahul C. Chellappan.

Respondent: Senior PP CS Hrithwik

Click here to read/download the order