The power under Section 311 Cr.P.C. must be exercised judiciously and for the ends of justice, and the examination of additional witnesses should be essential to the just decision of the case.

C.R. Sarma, J.

1. By filing this petition, under Sections 401 and 397 of the Code of Criminal Procedure, 1973 (for short, Cr.P.C.), the petitioner, who is an accused in Sessions Case No. 272 (CH)/2012, has challenged the order, dated 23.09.2013, passed by the learned Sessions Judge, Tinsukia, whereby the complainant's application, filed under Section 311 Cr.P.C., for examination of additional witnesses was allowed. I have heard Mr. D. Talukdar, learned Counsel for the petitioner, Mr. B. S. Sinha, learned Additional Public Prosecutor, Assam and Mr. P.J. Saikia, learned Counsel, appearing for the private respondent.

2. The prosecution case, as may be relevant for disposal of this petition, may, in brief, be stated as follows:

On 25.12.2011, all the members of the staff of the Saikhowaghat State Dispensary, including the petitioner, who was a Medical Officer of the said hospital and Mr. Amulya Das, an employee (for short, deceased) of the said hospital also attended the said picnic. In the said picnic, due to a quarrel, the accused assaulted the deceased, as a result of which he expired. Sri Upen Das (PW-1), brother of the deceased, lodged an FIR (Ext. No. 1) with the Dhola Police. During the investigation, Police examined 17 (seventeen) witnesses and, at the end of the investigation, submitted charge- sheet, for the offence under Section 302 IPC, against the petitioner (hereinafter called the accused).

3. During the trial, all the cited (seventeen) prosecution witnesses were examined by the prosecution. At the close of the evidence for the prosecution, the accused was examined under Section 313 Cr.P.C. and he denied the allegations, brought against him. Out of 17 (seventeen) witnesses, examined by the prosecution, 5 (five) witnesses i.e. PW-4, PW-6, PW-7, PW-9 and PW-12, were declared hostile and cross-examined by the prosecution. However, from their cross-examination, nothing incriminating could be elicited against the petitioner. As revealed from the evidence of the witnesses (certified copies of depositions produced), it appears that none of the said witnesses directly implicated the accused person with the death of the deceased. Of course, PW-3 stated that he was told by Samsul Hoque (PW-5) and Mridul Handique (PW-4) that a fight had taken place between the deceased and the accused. But, both PW-4 and PW-5 refused to support the said evidence of PW-3.

4. After the examination of the accused, under Section 313 Cr.P.C., i.e. on the date of argument, the informant (PW-1) filed an application, under Section 311 Cr.P.C., praying for permission to examine 6 (six) additional witnesses (not shown in the charge-sheet) including the widow of the deceased. In the said application, the grounds for examining the additional witnesses, have been stated as follows:

3. That the cited witnesses are well acquainted with the facts and circumstances of this case and intend to depose their evidence before the Hon'ble Court for the just decision of their case.

4. That the above named petitioner prays before your honours Court that the evidence of the cited witnesses are essential to the just decision of this case.

The learned Sessions Judge allowed the said prayer on two grounds i.e. (i) the widow of the deceased should not be debarred from giving evidence and secondly, the other witnesses, who were enjoying picnic party near the place of occurrence might be able to throw some light on the matter.

The said prayer has been contested by the accused person. It has been contended that the provision of Section 311 Cr.P.C. can not be used for filing up the lacuna in the prosecution case and that, in view of failure of the prosecution to establish the case, even after examination of 17 (seventeen) witnesses, there is no necessity to examine additional witnesses. It has also been contended that examination of such witnesses, who are not relevant to the facts of the case, will cause much prejudice to the accused.

5. Mr. D. Talukdar, learned Counsel, appearin