( 1 ) HEARD the learned counsel for the petitioner. The petitioner is challenging the order passed by the learned assistant Sessions Judge, Khammam in S. C. No. 177 of 1994 in Crl. M. P. No. 350/96. The said order is passed under Section 311 Cr. P. C.

( 2 ) THE petitioner is the sole accused in the said sessions trial, which is for an offence under Section 354 IPC. The prosecution applied for examining one witness by resorting to Section 311 Q. P. C. The learned Trial judge granted the said petition after going through the facts and circumstances of the case. The facts stated in the order by the court are: that the witness proposed to be examined was obviously a neighbour of the place where the incident took place. This was disclosed in the sketch, which was placed on record. Further, the Court below found that the eye-witness (PW. 3) had stated in his statement recorded under Section 161 Cr. P. C. by the Police, the proposed witness was another eye-witness to the incident. It, however, appears that at the trial the eye-witness (PW. 3) did not support the prosecution case. The victim of the crime was examined before the Court. Thus, the only eye-witness, apart from the victim, had not supported the prosecution case. It was in this back-ground the prosecution wanted to examine the proposed witness whose name was disclosed as long back as at the stage of investigation in the statements recorded under Section 161 cr. P. C. The learned Assistant Sessions Judge allowed the petition stating that the evidence of the proposed witness was essential for the just decision of the case.

( 3 ) THE learned Counsel for the petitioner wanted to urge that it was improper and unjust to exercise the discretion by the learned Judge in allowing the prosecution to examine the additional witness when all other witnesses were already examined. It is argued that at the stage of trial, the Court should not have permitted the examination of additional witness. It is also contended that the name of the proposed witness was not in the list of witnesses and, therefore, he should have not allowed to be examined for filling up the evidence on behalf of the prosecution. None of the contentions have any merit. Section 311 of the Code of Criminal Procedure reads as follows:"any Court may, at any stage of any inquiry, trial or other proceeding under this code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. "it will, therefore, appear from this provision that the power of the Court to summon or resummon any additional witness or witnesses already examined can be exercised at any stage of the proceeding. The learned Counsel for the petitioner is unable to show any principle or authority on which it is tried to be urged that at the stage of trial where other witnesses have already been examined, the court cannot permit examination of additional witnesses. It was contended that the prosecution is trying to plant evidence in the garb of examining additional witness. This is patently untrue because it is not disputed that as long back as at the stage of investigation itself the name of the proposed witness, as a eye-witness, was disclosed in the statement recorded from PW. 3 under Section 161 cr. P. C. It is not, therefore, that the witness is planted at a later stage. His presence was disclosed and known to the petitioner-accused because copies of the statements recorded under Section 161 Cr. P. C. were provided to him, when he appeared before the Court.

( 4 ) IT was then contended that the attempt of the prosecution is to fill-up the lacunae. I am at loss to understand as to how permitting the calling of a witness, who was an eyewitness can be said to be filling-up the lacunae.

( 5 ) IT