- (1.) AMAR Saran, J. Heard Shri P. K. Singh, learned Counsel for the applicant and Shri Shashi Dhar Tripathi, learned Additional Government Advocate representing the State.
(2.) BY means of this application the applicant has challenged an order dated 4-12-2007 passed by the Special Judge, SC/st. (Act), Kanpur Dehat in ST No. 6 of 2006 whereby the learned trial Judge has permitted the re-examination of P. W. 8, Mijaji Lal. Learned Counsel for the applicant has firstly contended that the applica tion for re-examination is too telegraphic and the Court has too readily permitted the same. Neither the prosecution nor the accused should be permitted to fill up lacunae. No doubt, it would have been better if the application for re-examination of the witnesses had been more detailed. However, a perusal of the impugned order shows that the learned trial Judge has examined the issue exhaustively after considering the judgment of the Apex Court in Rammi alias Rameshwar v. State of M. P. , AIR 1999 SC 3544, and observed that if in the cross-examination new matter is introduced, the trial Court may permit re-examination and has specifi cally pointed out that Section 138 of the Evidence Act confers such a power. It has been further clarified that under such provisions, re-examination shall be directed to the explanation of matters referred to in cross- examination and if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon the matter. This, in my view, is the correct proposition of law on the point.
(3.) LEARNED Counsel for the applicant, however, drew my attention to the state ment of P. W. 8 Mijaji Lal. I find that in his cross-examination Mijaji Lal has virtu ally suggested that he has given evidence at the instance of the police, who had apprehended him and that he had been confined to the police station on the night before his examination and threats were even extended to him. He further stated that on the night of incident, he was sleeping in his house and only learnt about the incident the next morning and he had gone to the spot. He denied having a gas lamp at his place. Therefore, a perusal of the said evidence shows that new matter had been elicited in the cross- examination and certainly the prosecution had a right to seek explanation of such matter, which had been elicited in the cross-examina tion. Allowing re-examination of such a witness does not amount to filling up lacunae.;