1. Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel for the parties.

2. Respondents are accused facing prosecution under Sections 302, 120-B read with Section 34 of the Indian Penal Code and under Sections 3 and 25 of the Arms Act. The present Writ Petition has been filed by the State, as application Exh.312, filed by the State in the Sessions Case No.44/2011 before Additional Sessions Judge, Ahmednagar to recall P.W.14 Kisan Abaji Shelke was rejected by order dated 6.12.2013, The witness was examined by the prosecutor on 1.10.2013 and in the course of the evidence, the witness was declared hostile and was cross-examined by the State. On 1.10.2013, the cross-examination was deferred due to grant of application Exh.281. On next date of 9.10.2013, for some of the accused the Court ordered No Cross and rest declined cross-examination. By another application filed by the accused, vide Exh.310, recalling of same witness was allowed by the Sessions Court for cross-examination of the witness while the application Exh. 312 was rejected of the State. Thus, the State is before this Court.

3. Perused the petition as well as affidavit-in-reply filed by Atish Mohan Bhalsing, respondent No.12 for self and other respondents. Heard learned A.P.P. as well as counsel for respondent Nos.1, 2 and 5 to 14.

4. The learned A.P.P. has submitted that, in this matter the date of incident is 13.11.2010. On that day, complainant P.W.14 Kisan Abaji Shelke was going on scooter which was being driven by victim Prakash Kandekar who was Deputy Sarpanch. They were proceeding from side of Rakshe Petrol Pump to Narayangavhan. At such time, on the way, two persons came near them driving a Pulser motorcycle and the rider asked as to what was the distance to Shirdi. To answer, the deceased slowed down his scooter, but at that time, the pillion rider on the motorcycle fired towards the head of Prakash Kandekar, who fell down. According to the learned A.P.P., the driver of the motorcycle was accused No.5 Ajit Jagdish Nayar, while the pillion rider, who had fired from pistol at the deceased, was accused No.6 Richard.

5. Learned A.P.P. referred to the evidence of witness to show that the witness who was complainant, had in the F.I.R. itself given details which showed that he could identify the accused and which description matched with accused Nos.5 and 6. According to learned A.P.P., even if in the test identification parade, the witness had correctly identified accused No.5 Ajit as well as accused No.6 Richard. Learned A.P.P. submitted that, at the time of evidence, however, the witness got confused and wrongly Ajay Jagdish Nayar was identified, who is real brother of accused No.5 Ajit Jagdish Nayar. According to learned A.P.P., the evidence itself shows that the witness was frightened at the time of his evidence and got confused. According to learned A.P.P., when the application of the accused persons was being allowed to recall the witness for cross-examination, there was no reason why the application of the State was declined to further record evidence of the same witness. The learned A.P.P. submitted that, State wanted to clarify the confusion in identification.

6. Learned A.P.P. relied on the case of Premkumar Surajmal Chandak Vs. Kishor Kanhayyalal Toshniwal, reported in 2014(2) Mh.L.J. 87. It was submitted that, in that judgment, this Court has observed that when cross-examination has yet to start, if the witness was recalled, it cannot be said that there would be any prejudice. Reliance is also placed on the case of Himanshu Singh Sabharwal Vs. State of M.P. & ors. reported in AIR 2008 SC 1943, where, in para 12, it was observed as under:

"12. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a re