GARG, J. - (1.) THIS revision petition has been filed by the accused petitioners against the order dated 25. 10. 1997 passed by the learned Additional Sessions Judge, Rajgarh District Churu in Sessions Case No. 27/96 by which he accepted the application dated 2. 9. 1997 filed under section 311 Cr. P. C. by the learned Additional Public Prosecutor and ordered for recalling of PW 4 Dr. M. C. Purohit.
(2.) IT arises in the following circumstances:- The accused petitioners were facing trial for the offence under Ss. 307, 326/34, 324 IPC etc. IT may be stated here that in this case, occurrence took place on 30. 7. 1994 and on 9. 9. 1994, challan for the offence under sections 307, 326, 324, 323, 34 IPC was filed by the police against the accused petitioners in the Court of Judicial Magistrate First Class, Taranagar District Churu, for where the case was committed to the Court of Session on 23. 9. 1994. The charges from the offence under sections 307/34, 326/34 and 324 IPC were framed against the accused petitioners on 20. 1. 1996. The charges were read and explained to the accused petitioners. They denied the charges and claimed trial. During trial, the statement of PW 1 Dr. Shankar Singh was recorded on 27. 6. 1996. The statements of PW2 Manoj Kumar and PW 3 Dr. B. L. Gaur were recorded on 1. 8. 1996. The statements of PW 4 Dr. M. C. Purohit, PW 5 Rameshwar, PW 6 Bhanwarlal, PW 7 Pannaram and PW 8 Sheoram were recorded on 2. 9. 1996. The statements of PW 9 Rajnarayan and PW 10 Rawatram were recorded on 23. 9. 1996. The statements of PW 11 Govindram and PW 12 Doongarmal were recorded on 26. 11. 1996. The statements of PW 13 Arjunram and PW 14 Rajiram were recorded on 1. 4. 1997. The statements of PW 15 Danaram and PW 16 Rajendra were recorded on 4. 8. 1997 and the statement of PW 17 Jeetaram was recorded on 19. 8. 1997 and thereafter, the evidence of the prosecution was closed. Thereafter, the statements of the accused petitioners under sec. 313 Cr. P. C. were recorded on 30. 8. 1997 and the case was ordered to be listed for recording evidence of the defence and defence evidence was recorded on 2. 9. 1997 and thereafter, the case was ordered to be listed for final arguments on 5. 9. 1997. After recording defence evidence on 2. 9. 1997, the present application under section 311 Cr. P. C. was filed by the learned Addl. Public Prosecutor in the Court of learned Addl. Sessions Judge, Rajgarh (Churu) for recalling PW 4 Dr. M. C. Purohit on the ground that PW 4 Dr. M. C. Purohit has wrongly mentioned ring finger in place of little finger in the x-ray plate cover Ex. P/6a pertaining to PW 2 Manoj Kumar and because of this mistake committed by PW 4 Dr. M. C. Purohit, PW 3 Dr. B. L. Gaur also mentioned in his report Ex. P/2 ring finger, though there was fracture of little finger of PW 2 Manoj Kumar. Thereafter, it was prayed that PW 4 Dr. M. C. Purohit be recalled so that this mistake can be rectified. The learned Addl. Sessions Judge, Rajgarh (Churu) vide his order dated 25. 10. 1997 allowed the application filed under Sec. 311 Cr. P. C. by the learned APP and ordered that PW 4 Dr. M. C. Purohit be recalled. Aggrieved from the said order dt. 25. 10. 1997 passed by the learned Addl. Sessions Judge, Rajgarh, this revision petition has been filed by the accused petitioners. In this revision petition, it has been vehemently argued by the learned counsel for appearing for the petitioners that since on the date when the present application u/sec. 311 Cr. P. C. was filed by the learned APP, not only the evidence of the prosecution, but defence evidence was also recorded and closed and the case was ordered to be listed for final hearing, therefore, in these circumstances, that application is belated one and the lacuna of the prosecution should not be allowed to be filled up at this belated stage. Hence, it was prayed that this revision petition be allowed and the impugned order dated 25. 10. 1997 passed by the learned Addl. Sessions Judge, Rajasthan be set aside. On the other hand, the learned Public Prosecutor and the learned counsel appearing for the complainant supported the impugned order dated 25. 10. 1997 passed by the learned Addl. Sessions Judge, Rajgarh (Churu ). I have heard the learned counsel appearing for the accused petitioners, learned counsel appearing for the complainant and the learned Public Prosecutor and gone through the record of the case. Section 311 of the Code of Criminal Procedure is divisible in two parts. The first part gives a discretionary power to a Court for summoning witnesses, but the latter part is mandatory. Under the first part the Court may act in three ways: (a) summon any person as a witness, (b) examine any person present in Court though not summoned, and (c) recall or examine a witness already examined. The second part is obligatory and compels the Court to act in these ways or any one of them if a just decision of the case demands this.
(3.) SEC. 311 Cr. P. C. does not confer on any party the right to examine, cross-examine or re-examine any witness. This is a power given to the court which is entirely discretionary. The Court's power u/sec. 311 Cr. P. C. is not meant to be used for the purpose of enabling the prosecution to fill up any lacuna in their evidence. Section 311 Criminal Procedure Code itself incorporates a rule of natural justice. The accused is presumed to be innocent until he is proved guilty. It is, therefore, manifest that where any fresh evidence is admitted against the accused the presumption of innocence is weakened and the accused in all fairness should be given an opportunity to rebut that evidence. The right to adduce evidence in rebuttal is one of the inevitable steps in the defence of a case by the accused and a refusal of the same amounts only not to an infraction of the provisions of the Criminal Procedure Code but also of the principles of natural justice and offends the famous audi alteram partem. For that the decision of the Hon'ble Supreme Court in Rameshwar Dayal vs. State of U. P. (1), may be referred to. ;