1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. S.B. Criminal Revision No. 68/2011 Rajandra Manikrao Shirke and ors. V/s. Manoj Suresh Kadu and ors. ----------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. ----------------------------------------------------------------------------------------------------------- Mr ٌA. A. Gupta, Adv for applicant Mrs. K.D. Deshpande, APP respondent Coram: A. P. Bhangale, J Dated: 7th June 2011 1. Heard learned counsel for the applicants. By this application, the applicants (original accused) in Sessions trial number 423/2009 who are facing prosecution under Section 307 of the Indian Penal Code, have challenged the order dated 8.3.2011 passed below exhibit 180 by the Sessions Judge. During the pendency of Sessions trial, learned Additional Public Prosecution by an application dated 27/01/2011, moved learned Sessions Judge with a prayer to re-examine the PW-1 on the ground that Haraman who was examined as P.W. 1 had supported the prosecution case on the basis of panchnama but in the course of cross-examination he had introduced a new story which was not stated before the Investigating Officer during the 2 time of investigation. According to learned APP, PW-1 could not be re-examined due to inadvertence, and therefore, it was necessary to recall and reexamine the said witness with reference to his new story put forward before the Sessions Court in the course of his cross-examination which story was contrary to his version before the Investigating Officer. 2. The learned Additional Sessions Judge after hearing both the parties, by a reasoned order allowed the application (Exh. 180) and permitted recall of witness PW-1 namely Hiraman Kothiram Dorsetwar for re-examination. Learned Additional Sessions Judge found favour with the learned APP to the effect that due to inadvertence prosecution could not reexamine PW-1 who had introduced a new story before the Court in the course of his cross-examination. Learned Additional Sessions Judge, made reference to the ruling in case of Fatehsinh Mohansinh Chauhan and others Vs. Union Territory of Dadar and Nagar Haveli and others reported in 2004 Cri.L.J. 150, and appears to have considered the ratio laid down therein with reference to Section 311 of the Code of Criminal Procedure. According to learned Additional Sessions Judge, it was necessary to seek explanation from the witness regarding certain facts mentioned in the cross-examination. It was ultimately concluded that the prosecution is entitled for recall of the said prosecution witness. 3. It is the grievance of the applicants-accused that by an impugned order prosecution would be allowed to fill up lacuna. 3 It is further contended that the complainant who had assisted the prosecution had also applied to remove irrelevant portion of the deposition of PW1 on the record. 4. Learned Advocate for the applicants in support of his submission made reference to ruling in Hanuman Ram V/s. The State of Rajasthan and others reported in 2008(4) Crimes 192 (SC). He submitted that once the witness was examined in-chief and cross-examined fully, such witness should not be recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. 5. Learned Additional Public Prosecutor has supported the impugned order and it is submitted that the order being justified, the same need not be interfered with. 6. It is pertinent to note that in Hanuman Ram’s case (supra), an application was filed by the accused persons before the trial Court in terms that certain witnesses may be re- summoned for cross-examination with reference to their statements before the Children’s Court. Order of rejection of that application, was set aside by the High Court and the Apex Court restored the order of the trial Court for the reasons contained in its judgment. If the facts involved in Hanuman Ram’s case (supra) are compared with the case in hand, the same are distinct and the ratio laid down in the said case cannot be applied in the present case. 4 7. Admittedly, in the present pending sessions case, statement of the accused persons under Section 311 of Criminal Procedure Code are not yet recorded. One of the main objects of criminal trial is to arrive at the truth. It is no doubt true that the re-examination of a particular witness cannot be permitted to enable the prosecution to fill in lacunae otherwise a trial would be an endless exercise. In the present case, since the witness had put up a different story which was not revealed during the course of investigation and APP, through inadvertence, could not re-examine him, the trial Court has rightly allowed the application. No prejudice would be caused to the applicants/accused if such re-examination is allowed. After all, applicants/accused would be entitled to hold further cross- examination of the said witness after re-examination is over. 8. In the result, no interference is called for in the impugned order. Revision application stands dismissed accordingly. JUDGE Punde