- (1.) Order No.27 dated 24.08.2016 passed by the learned Additional Sessions Judge, 1st Court, Serampore, in allowing prayer of prosecution to recall P.W.6. Sk. Yazuddin and for examination of four other witnesses namely, i) Gulfen Sahani, ii) Ajay Bhakat, iii) Sudip Majumdar and iv) Harisadhan Ghosh has been assailed before me on behalf of the petitioner.
(2.) Pursuant to direction of this Court, report has been filed wherein the prosecution has categorically stated the reasons for examination of the new witnesses. Copy had also been supplied to the petitioner.
(3.) Learned counsel appearing for the petitioner submits that the learned Trial Judge by allowing the prayer of the prosecution has permitted to fill up the lacunae in the prosecution case which is not permissible in law. He further submitted that the four witnesses proposed to be examined were not cited in the charge-sheet and no statement under Section 161 of the Cr.P.C. of the said witnesses has also been supplied to the accused persons. He further submitted that the application for recall of the examination of fresh witnesses before the learned Trial Court was a vague and laconic one and ought to have been rejected. He relies on (Rajaram Prasad Yadav vs. State of Bihar And Another, 2013 14 SCC 461) in support of his contentions. Mr. Gupta, learned counsel for the State submits that examination of the witnesses are necessary for unfolding the prosecution case and therefore the learned Trial Court allowed their examination including re-examination of P.W.6. Right to recall a witness under Section 311 Cr.P.C. is the discretion of the learned Trial Court and same is to be exercised with the sole object of seeking out the truth and arriving at a just decision of the case. It is a well-settled proposition of law that such prayer cannot be utilized to fill up lacunae in the prosecution case. However what amounts to filling up of lacunae in the prosecution case is no longer res integra. Remissness on the part of the prosecution or failure to cite witnesses in the charge-sheet would not amount to filling up of lacunae if examination of such witness is necessary for unfolding the prosecution case or arriving at a just decision in the said case. It is only when an inherent weakness or latent wedge in the prosecution case is sought to be filled up subsequently to the prejudice of the defence, the question of filling up of lacunae in the case arises.[See Rajendra Prasad Vs. Narcotic Cell through its Officer-in-Charge, 1999 AIR(SC) 2292 (Para 6 & 7) and Iddar & Ors. Vs. Aabida & Anr., 2007 AIR(SC) 3029 (Para 10 to 12)].;