1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. CRIMINAL REVN. APPLN. NO.: 128 OF 2009 Barku S/o Waman Shinde and another Versus The State of Maharashtra 1. By consent of the parties, the matter is finally heard. 2. In a reasoned order dated 2nd March, 2009, learned Additional Sessions Judge-2, Ahmednagar rejected the application to recall P.W.1 and P.W.2. The reasons are elaborately indicated in paragraph 5 of the order under challenge. 3. Though no two opinions can be expressed with the opinion expressed by the learned Judge. However, since few vital questions leading to the root of the matter, are left over, it is not by way of change of admission of such exercise is being done, the accused/ applicant, through his mother genuinely feel that such vital questions were left over to be put. The Applicant should not be allowed to nurse impression that he has lost something owing to wedge created by his counsel. The observation of Honourable Apex Court in the matter of "Rajendra Prasad V/s Narcotic Cell through 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. its Officer, Delhi" reported in A.I.R. 1999 S.C. 2292, considering the provisions under section 311 of the Code of Criminal Procedure, coupled with section 165 of Evidence Act, needs consideration. Incidentally, in paragraph 8, in the judgment of "Dipak Gangaram Ahirrao and another V/s State of Maharashtra" reported in 2006 B.C.I. 79 this Court has observed: "8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can before closed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all, function of the Criminal Court is administration of criminal justice and not to count errors committed by the parties or 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. to find out and declare who among the parties performed better." 4. The application is allowed in following terms: . The accused Barku Waman Shinde and others shall pay costs of Rs.1,000/- each for P.W.1 and P.W.2 on or before 28th July, 2009 before the learned Additional Sessions Judge 2, Ahmednagar in Sessions Case No.100 of 2008. On such deposit, P.W.1 and P.W. 2 should be called for further cross examination. Failure to comply to deposit or seeking adjournment after presence of the witnesses, will entail in rejection of recalling. [K. U. CHANDIWAL, J.] Dated:20/07/2009. ans/128