IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1251 of 2007 NANHAKU SAO, son of late Karu Sao, resident of village-Dhiwar, P.S.-Fatehpur, district- Gaya, ---------------------------------Peltitioner. Versus 1. STATE OF BIHAR 2. Ram Chandra Sao, son of late Somar Sao, resident of Purani Bathan, P.S.Fatehpur, District-Gaya----------------------------------Opp. Parties. ----------- For the petitioner : Mr. Birju Prasad, Advocate For the Opp. Party no.2 : Mr. Ashok Kr. Sinha, No.10 For the State : Mr. Gopesh Kumar, A.P.P. -------------------- 5. 30.3.2009 Heard the parties. In brief, at the trial five prosecution witnesses were examined. Statements of two, namely, informant (P.W.4) and doctor (P.W.5) were found missing from the record. Every attempt was made to search out the statements of both the witnesses but was proved of no avail rather both the statements could not be found out. Then a petition under section 311 of the Code of Criminal Procedure for examination of both the witnesses was filed and allowed also. The submission of learned counsel for the petitioner is that P.W.4 is the informant and P.W.5 is the doctor and report was there on the record. For P.W.4 it is said that he has been declared hostile and same is the position of the doctor. Now, both the witnesses have changed their mind and are going to corroborate the prosecution case which is clearly filling up the lacuna found by the prosecution at the trial stage which cannot be done. In my view also, lacuna can never be filled up but at the same time it is for the court to find out the ways and means to reconstruct or substitute a missing document or statement of the - 2 - witneses. Reconstruction was attempted but failed. Then only recourse remains to get examined those witnesses under section 311 of the Code of Criminal Procedure. Accused will have every opportunity to cross-examine such witnesses who can be fully hostile, declared hostile for particular point or get to be disbelieved if they are found not reliable. In any case, in the name of filling up lacuna, their examination cannot be prevented. Thus, I find no point to interfere to quash the order dated 8.9.2006/11.9.2006 passed by the learned Addl. Sessions Judge, F.T.C.-V, Gaya, in Sessions Trial no.49 of 2006. This application is dismissed. Sudip ( Mandhata Singh, J )