( 1 ) THE petitioners herein are accused in sessions Case No. 22 of 2003 on the file of the Court of III Additional Sessions Judge, kadapa (Fast Track Court ). They are facing trial for the offences under Sections 147, 148, 326 and 302 read with Section 149 of indian Penal Code and Sections 3 and 5 of the Explosive Substances Act, 1908. The prosecution examined Village Administrative officer of Bidinamcherla as P. W. 3 on 3-2-2005. Be it noted that P. W. 3 was one of the panchas along with P. Ws. 1 and 2 who were present when the inquest was conducted to the deadbody of the victim of the offence. He in his cross-examination stated that there are no streetlights in his village from 1992. The prosecution examined P. W. 2 on 3-2-2005. Immediately four days thereafter, the Public Prosecutor filed an application being Criminal Miscellaneous Petition No. 44 of 2005 under Section 311 of Crpc to recall p. W. 3, namely, Bhumireddy Ismail Reddy to treat P. W. 3 as hostile witness and for permission to cross-examine P. W. 3. In the petition it was averred that in Col. No. VIII of ex. P-2 inquest report the fact of burning the electric light on the eletric pole at the scene of offence was mentioned and for that reason presumably the prosecution wanted to confront P. W. 3 with Ex. P-2. The defence opposed the application contending that section 137 of the Evidence Act, 1872 does not permit to treat a witness hostile after evidence is over. The learned Sessions Judge of the Fast Tract Court overruled the objections of the defence and allowed the application holding that prosecution is entitled to recall P. W. 3 to put such questions in re- examination.

( 2 ) IN this petition filed under Section 482 of Crpc to quash the order of the Sessions court, learned Senior Counsel for the petitioners/accused Sri C. Padmanabha reddy submits that the prosecution wanted to recall P. W. 3 for the purpose of cross- examination whereas the learned Sessions judge permitted them to re-examine P. W. 3, that such a course is not permissible under section 137 of the Evidence Act and that in any event, permission to prosecution cannot be granted to fill up gaps and lacuna in the evidence let in by the prosecution to prove charge against accused. He placed reliance on the decision of the Supreme Court in rajendra Prasad v. Narcotic Cell.

( 3 ) THE learned Sessions Judge in the order which is subject matter of this petition has given cogent reasons for allowing application filed by the prosecution permitting prosecution to re-examine P. W. 3. Indeed, learned Sessions Judge exercised due diligence to go through Ex. P-2 inquest report wherein the burning of streetlights was mentioned. When the prosecution wants to bring in evidence in relation to relevant fact in issue and when such evidence would enable the Court to arrive at "just decision", ordinarily, it cannot be said that the same would amount to filling up gaps and lacuna. It is apt to extract paragraphs 6 and 7 from the decision cited by the learned counsel for the petitioners which would support the view recorded herein. It is a common experience in criminal courts that defence counsel would raise objections whenever Courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence act by saying that the Court could not fill the lacuna in the prosecution case . A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage to err is human is the recognition of the possibility of making mistakes to which humans are proned. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it shoul