1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. M.M.O.No. 53 of 2008. Date of Decision: 7.7.2008. _______________________________________________________ Goverdhan Singh. Petitioner. Versus State of H.P. Respondent Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the Petitioner: Mr. Manoj Pathak, Advocate. For respondent : Shri J.S. Guleria, Law Officer. Surinder Singh, J . (oral) Petitioner herein is facing trial under Section 363, 366-A and 376 of the Indian Penal Code in the Court of Additional Sessions Judge (Fast Track Court) Shimla. During the proceedings of the said case against him, the prosecution examined PW4 Shiv Dutt Secretary, Gram Panchayat Munshara to prove the age of the prosecutrix and in his examination-in-chief, he stated that the date of birth of the prosecutrix is 6-6-1989 in the record of Munshara Panchayat but in cross-examination, he stated that as per the old record which was with Lower Koti Panchayat from which Munshara Panchayat was formed, the date of birth of the prosecutrix is 28-11-1980. How this witness came to know about the entry made in another Panchayat when no such record was with him. Later, to clear this ambiguity, an application under Section 311 of the Code of Criminal Procedure was moved by the prosecutor which was resisted by the accused-petitioner on Whether reporters of the Local papers are allowed to see the judgment? yes 2 the ground that the Public Prosecutor had the opportunity to re- examine the witness which was not availed by him and the application was moved after a gap of two years to fill in the lacunae. The learned trial Court observed that the age of the prosecutrix is material in the case in hand and this ambiguity requires to be clarified in the interest of justice and fair play therefore, the delay will not come in its way. Hence the application was allowed on 19-5-2008 which order has been assailed in this petition on the ground that the approach adopted by the learned trial Court is incorrect. The application could not have been allowed to fill in the gap by the prosecution. I have heard the learned counsel for the petitioner and went through the impugned order. It is a fact that PW4 Shiv Dutt was the Secretary of Gram Panchayat, Munshara and he was summoned with the record of that Gram Panchayat only. It is no where mentioned in the impugned order nor averred in this petition that he was also summoned with the record of Lower Koti Panchayat. In fact, it was for the prosecutor to re-examine the said witness to clear this ambiguity when he was examined in the Court on 19.5.2006. If the prosecutor had failed to perform his duty, there are ample powers with the Court to re-call and re-examine the said witness if he is essential for the just decision of the case. Keeping in view the offences alleged to have been committed by the petitioner, the age of the prosecutrix is important and the aforesaid ambiguity which has appeared in his statement is required to be clarified and explained in the interest of justice in order to arrive at the truth irrespective of the fact that the learned Public Prosecutor has failed to get it cleared. 3 Thus, I find no ambiguity in the impugned order, as such, the order impugned cannot be interfered with under Section 482 of the Code of Criminal Procedure. Accordingly the petition is dismissed. (Surinder Singh) Judge. July 7, 2008. (bm)