1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 20 OF 2011 (Vishwanath Raju Kulmethe .v. State of Maharashtra) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri S.P. Gadling, Advocate for the applicant. Shri C.N. Adgokar, APP for the respondent/State. CORAM : PRASANNA B. VARALE, J. 23RD MARCH, 2011. Heard. By way of present application, the applicant is seeking challenge to the order dated 09th December, 2010 passed by the learned Principal District and Sessions Judge, Gadchiroli. The brief facts giving rise to filing of the present application are as under :- The applicant is an accused in Sessions Case No. 39 of 2010 (State .v. Vishwanath Kulmethe) facing trial for the offence under Section 302 read with Section 34 of the Indian Penal Code and read with Section 3/25 of the Arms Act registered with Police Station, Regunta, District Gacdhiroli vide Crime No. 8/1995. The prosecution has examined six witnesses and the matter is kept for recording the statement of accused under Section 313 of the Code of Criminal Procedure. It is the grievance of the applicant/ accused that PW-5 (Kista Gunda Naitam) was examined on 01.09.2010. It is submitted that the learned Counsel for the accused had failed to record the omission due to oversight and an application was filed for recalling the witness PW-5. The application dated 23.11.2010 for recalling of the witness was rejected by the learned Principal District and Sessions Judge, Gadchiroli. Learned Counsel for the applicant submits that the applicant who is facing trail for serious offence under Section 302 read with Section 34 of the Indian Penal Code and read with Section 3/25 of the Arms Act, the order dated 09.12.2010 i.e. 2 rejection of the application would cause a serious prejudice to the applicant. Learned Counsel for the applicant further submits that the learned Sessions Judge has mechanically rejected the application. Learned Counsel raised two grounds i.e. (i) no liberty to cross-examine PW-5 was given to the applicant/accused so as to record omissions; and (ii) the learned Counsel for the accused was confused with regard to the legal position as to whether cross- examination can be there on the questions put by the Court to PW-5. In support of his submissions, learned Counsel for the applicant places reliance on the judgment of the Apex Court in the case of Rajendra Prasad .v. Narcotic Cell (reported in 1999(6) SCC, 110) and the judgment of this Court in the case of Vikas Sureshrao Waghmare .v. Moreshwar Bhausaheb Kadam (reported in 2010n All MR (Cri) 2500). Learned APP strongly opposes the application. Heard the learned Counsel appearing on behalf of the applicant and learned APP appearing on behalf of the respondent/ State at length. In so far as the grounds raised by the learned Counsel for the applicant are concerned, the first ground i.e. no opportunity was given to the applicant/accused for cross- examining PW-5 which resulted into serious prejudice, it is reflected from the record and the order impugned that the witness PW-5 (Kista Gunda Naitam) had attended the Court to give his evidence from a remote place namely Regulwahi, Tahsil Sironcha, District Gadchiroli which is highly naxal affected area. PW-5 Kista identified the accused in the Court. Thereafter, he gave detailed version of the act committed by the accused and co-accused. He has also stated that he had seen the accused from 100 to 150 feet. It is further revealed that the cross-examination of this witness was deferred at the instance of the learned Counsel for the accused. The Court had put certain questions to this witness in question and answer form. An opportunity was given to the learned APP as well as the learned Counsel for the accused to cross examine the witness. Learned Counsel for the accused again 3 cross-examined the witness by asking certain questions. It is further revealed that the matter was adjourned on five dates and subsequently evidence of PW-6 PI Siddiqui was also recorded. The matter was thereafter fixed for recording the statement of accused under Section 313 of the Code of Criminal Procedure. From the perusal of aforesaid events, it is clear that sufficient opportunity was given to the learned Counsel for the accused for cross-examining the witness. The matter was adjourned for more than four occasions at the request of the learned Counsel for the accused/applicant. The witness PW-5 has clearly stated about the presence of the accused and the participation of the accused and co-accused in the alleged offence. In view of these facts, I find no substance in the submission of learned Counsel for the applicant that no opportunity was given to the applicant. On the contrary, the record shows that sufficient opportunity was given to the learned Counsel for the accused. Not only this, but PW-5 was cross examined by the learned Counsel for the accused. The second ground raised by the learned Counsel for the applicant that the Counsel for the accused got confused with regard to the legal position. In my opinion, the perception of the learned Counsel for the applicant and/or confusion in the mind of learned Counsel for the accused cannot be a ground for recalling the witness. The reliance placed by the learned Counsel for the applicant on the judgments of the Apex Court in the case of Rajendra Prasad .v. Narcotic Cell (cited supra) and the judgment of this Court in the case of Vikas Sureshrao Waghmare .v. Moreshwar Bhausaheb Kadam (cited supra), in my opinion, are not applicable to the present case. The facts are clearly different. The Apex Court, while dealing with the issue of recalling the witness and more particularly in the backdrop of the bar of filling “lacuna in prosecution case”, observed that the lacuna in the prosecution case must be understood as the inherent weakness or a latent wedge in the matrix of prosecution case. It further 4 observed that an oversight in the management of the prosecution cannot be treated as irreparable lacuna. There cannot be any dispute on the principle that the power of the Court is plenary to summon or even recall any witness at any stage of the case if the Court considers it necessary for a just decision. In the present case, as it is observed that the sufficient opportunity was given to the learned Counsel for the accused and the confusion in the mind of the learned Counsel for the accused with regard to the legal position cannot be a reason for recalling of witness for cross- examination. It is not in dispute that now the trial is at the stage of recording the statement of accused under Section 313 of the Code of Criminal Procedure, in my opinion, no case is made out to show any indulgence. In the result, the application is rejected. JUDGE *rrg.