{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4197 OF 2009 1. Mahadev s/o Rangnath Shendge Age-40 years, Occ-Nil 2. Haribhau s/o Ganpati Narwate Age-3 years, Occ-Nil 3. Bansi s/o Reshim Mane Age-33 years, Occ-Nil R/o Bhilegaon, Tq=Parli Dist-Beed 4. Vinayak s/o Ganpati Narwate Age38 years, Occ-Nil Applicants No.1, 2 & 4 R/o Nimla, Tq-Parli, Dist-Beed APPLICANTS VERSUS The State of Maharashtra RESPONDENT ....... Mrs.S.S.Jadhav, Advocate for applicants Mrs.Yotiga M.Kshisagar, APP for the State Mr.B.A.Shinde Advocate for complainant ....... [CORAM : A.V.POTDAR, J.] DATE: 17th December 2009 ORAL JUDGMENT: 1. Rule. Rule made returnable forthwith. By consent of {2} the learned counsel appearing for the parties, this application is heard finally at the stage of admission. 2. By the present application, the applicants have approached this Court praying to recall the order dated 10th November 2009, by which the application filed by the applicants, to recall P.W.-11 Shakuntala Laxmanrao Parekar, whose evidence is recorded in Sessions Case No.85/2008 by the Ad Hoc Additional Sessions Judge-2, Ambajogai, is rejected. 3. Such of the facts, as are necessary for the decision of this case, may briefly be summarized thus - The applicants are accused in Sessions Case No.85/2008 and are in custody. This case is pending before the Ad Hoc Additional Sessions Judge-2, Ambajogai. During the trial, evidence of PW-11 Shakuntala came to be recorded on 20.06.2009 and completed on the same day. It further appears that on 21st July 2009, about a month thereafter, she directly sent one affidavit by post to the concerned Sessions Judge contending that she was threatened by the complainant side to give evidence and in that manner she has deposed before the Court. It appears that this fact, of receipt of affidavit by post, is brought to the notice of prosecution as well as by the defense by the Judicial Officer himself. Thereafter, 5 more witnesses are examined. The application was moved on 9th November 2009 by the defence to {3} recall the witness to test the genuineness of the affidavit, allegedly sent by her, which is marked as Exhibit-104. It also appears that the last witness of the prosecution was examined on 10th November 2009 and thereafter the case was closed for the statement of the accused u/s 313 of the Criminal Procedure Code. 4. The gist of the submissions of the applicants, is that the learned trial court has rejected the application on the ground that after the evidence of PW-11 was over, under the provisions of Section 311, she cannot be recalled to give further evidence. It is to be noted that the affidavit (Exhibit-104) was directly sent to the Court, after one month of her evidence. It is to be noted that the contents of the affidavit (Exhibit-104) are prejudicial to the interest of the prosecution, in such circumstances, it was for the prosecution to move the application u/s 311 to recall the witnesses to test the genuineness of the affidavit (Exhibit-104). Why the prosecution has not filed application to recall the witness to test her veracity, are best known to the prosecutor, who is conducting the said case. However, fact remains that though the contents of the affidavit (Exhibit=104) are prejudicial to the prosecution, the prosecution has not preferred any application to recall the said witness to test the affidavit, which is exhibited, without formal proof of the same, as the contents of the affidavit (Exhibit-104) are not admitted by either side. 5. Considering the rival submissions, it is necessary to {4} consider the scope of section 311 of the Criminal Procedure Code, which reads thus - “311 Power to summon material witness, or examine person present- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” 6. Considering the highlighted portion of section 311, which speaks to recall the witness, “if his evidence appears to it to be essential to the just decision of the case”, these words are very important. As considering the contents of the affidavit (Exhibit-104), and the evidence given by PW-11, she appears to be the star witness of the prosecution. If the contents of the affidavit (Exhibit-104) proved to be genuine, then without examining or testing the genuineness of the same, it will affect the case of the prosecution, but if not there are chances to draw adverse inference even against the defense. In the premise, considering the evidence already given by PW-11 Shakuntala, in the light of the allegations made by her in the affidavit (Exhibit-104), in the interest of justice it is necessary to test the genuineness of the contents of the affidavit (Exhibit-104). In the premise, it is necessary to recall PW-11 Shakuntala. At the same time, though the witness is recalled at the instance of defence yet an equal opportunity to be {5} given to both the prosecution and defence to test the veracity of the affidavit (Exhibit-104). In the premise, the order impugned in this criminal application, is devoid of any substance and hence liable to be quashed and set aside. 7. In the result, the impugned order is hereby quashed and set aside with the direction that PW-11 Shakuntala, be recalled to test the genuineness of the contents of affidavit (Exhibit-104), with further direction to give equal opportunity to the prosecution as well as to the defence to put requisite question only limited to the contents of the affidavit (Exhibit-104) to ascertain the correctness of the same. 8. Rule is thus made absolute, as indicate above. The application stands disposed of accordingly. Authenticated copy of this order be provided to either side on request. Learned APP to inform this order to the learned AGP / DGP, who is conducting Sessions Case No.85/2008 before the Additional Sessions Judge-2 Ambajogai, by fax. sd/- [A.V.POTDAR, J.] drp/criapln4197-09 Authenticated copy (D.R.Pawar) P.A. to Hon’ble Judge