Judgment:
G.S. Sarraf, J.
1. This Misc. Petition is directed against the order dated 29.2.2008 passed by Additional Sessions Judge (Fast Track) No.3, head quarter Khetri District Jhunjhunu in Sessions Case No. 135/2007 (37/2007) whereby the application moved by the prosecution under Section 311 Cr.P.C. for recalling Ram Singh. PW.1 has been allowed.
2. The facts in brief are that the petitioner along with the co-accused is facing trial under Sections 148, 323, 24, 325, 307 and 149 IPC. During the trial the statement of the complainant Ram Singh was recorded on 3.1.2008. Thereafter, an application was moved by the prosecution on 30.1.2008 alleging therein that the complainant Ram Singh PW.1 during the course of his examination stated that the petitioner Naru Ram inflicted injury by opposite side of the axe but it was not recorded and, therefore, the complainant Ram Singh PW. 1 be recalled. Learned trial Court by order dated 29.2.2008 allowed the above application and recalled the complainant Ram Singh PW. 1 directing that the complainant would confine his statement to the extent of the petitioner Naru Ram only. Aggrieved by this order, the petitioner has filed this petition.
3. Heard learned Counsel for the petitioner, learned P.P. and learned Counsel for the respondent No. 2.
4. In order to enable the Court to find out the truth and render a just decision the salutary provisions of Section 311 Cr.P.C. are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined if his evidence appears to be essential to the just decision of the case. However, this provision should not be invoked by the Court to fill up the lacuna in the prosecution case. If the prosecution being obliged to prove the case beyond reasonable doubt has failed to bring on record anything which might help the prosecution, it is not the duty of the Court to make good the omission of the prosecution. Where fresh evidence is being sought to be introduced to fill up the lacuna in the prosecution case, it would cause very serious prejudice to the accused.
5. There is a note at the bottom of the statement of the complainant Ram Singh PW.1 whereby it has been endorsed that the statement was readover to the witness which he admitted to be correct. The statement was recorded on 3.1.2008 and as per the application filed by the prosecution under Section 311 Cr.P.C, the prosecution came to know about it on 15.1.2008 but still the application has been filed on 30.1.2008. Considering all the facts and circumstances of the case, I am of the opinion that the prosecution has moved the application untier Section 311 Cr.P.C. with a view to introduce fresh evidence to fill up the lacuna which cannot be permitted under Section 311 Cr.P.C. because it would cause serious prejudice to the petitioner.
6. The order of the trial Court is thus patently illegal.
Consequently, the petition is allowed, the impugned order dated 29.2.2008 is set aside and the application of the prosecution to recall Ram Singh PW.1 is dismissed.