1. Heard.

2. Admit.

3. Heard finally by consent of learned counsel appearing for the parties.

4. What is challenge in this application is the order dated 24.6.2016 passed by the learned Sessions Judge, Wardha rejecting the application filed under Section 311 of the Code of Criminal Procedure by the applicant, the accused in Sessions Trial No.94/2014, in which he is being prosecuted for an offence punishable under Section 302 of the Indian Penal Code.

5. Learned Sessions Judge has taken a view that when the opportunity was available to the accused to put necessary questions to witnesses, namely, PW 3 and PW 7, the opportunity was waisted and, therefore, any attempt made as an afterthought to put these questions would amount to filling up the lacuna in the defence. On this ground, the learned Sessions Judge has turned down the request of the applicant.

6. Learned counsel for the applicant submits that this was not the case of filling up the lacuna, but an attempt to correct the error occurred while cross-examining the witnesses and, therefore, the application ought to have been allowed. He also submits that no prejudice would be caused to the prosecution, if two witnesses are recalled for the limited purpose of putting them specific questions and suggestions, as detailed in the Pursis filed today, which is taken on record. In support, he places his reliance upon the case of Natasha Singh vs. CBI (State), reported in AIR 2013 SC (Supp) 845.

7. Learned A.P.P. for the non-applicant/State contends that the order challenged in the application is legal and correct and that it does not cause any prejudice to the accused. He submits that it is well settled law that the power under Section 311 of the Criminal Procedure Code should not be resorted to help a party to fill up the lacuna. He submits that when the opportunity was available, the accused did not put these questions to the witnesses and, therefore, now any attempt made for putting up these questions would only amount to filling up the lacuna in the case of defence. He submits that this is not permissible in law and places his reliance upon the case of Mannan Shaikh and others vs. State of West Bengal and another, reported in (2014) 13 SCC 59.

8. In the case of Mannan Shaikh and others vs. State of West Bengal and another the Hon'ble Apex Court has held that the power under Section 311 of the Criminal Procedure Code has to be exercised in a judicious manner so as to ensure that it advances a just decision of the case and that if the Court is of the opinion that in order to arrive at a just decision in the case, it is necessary to recall or reexamine a witness, the power must be exercised. It is also held that the power should be exercised in a manner that no prejudice is caused to the accused if the permission is given to the prosecution to fill up the lacuna.

9. In the case of Natasha Singh, the Hon'ble Apex Court has reiterated the view taken by the Hon'ble Apex Court in the case of Rajendra Prasad vs. Narcotic Cell, through its Officer-in-Charge, Delhi, reported in AIR 1999 SC 2292. The view is to the effect that the lacuna in the prosecution is something which is inherent weakness or a latent wedge in the prosecution case, the advantage of which ordinarily must go to the accused and that there is a difference between inherent weakness i.e. lacuna in the prosecution case and a mistake or oversight in asking certain questions as a part of management of the prosecution case. The later category of mistake or over sight does not fall in the category of inherent weakness or fundamental lacuna in the prosecution case and that, it is a curable defect.

10. Thus, it is clear to us that when the witnesses can be recalled to correct the errors occurred in the management of the prosecution case, same principle can be applied to the defence case as well. In the instant case, certain questions, due to inadvertence, were not put to PW 3 as well as PW 7 and a look at these questions, as det