The court affirmed that re-examination of witnesses is permissible to ensure justice, even at the final argument stage, provided it is necessary for a fair trial.

ORDER

1. The crucial questions involved in the instant petition for determination are whether a trial court can permit lacuna in evidence filled-up and what is meant by 'lacuna' in a case/evidence? It has to be understood before deciding the said question one way or the other.

2. The present Criminal Misc. Petition has been preferred by the petitioner-complainant assailing the order dated 10.03.2021 passed by the learned Additional Sessions Judge (Women Atrocity Cases), Jodhpur Metropolitan in Sessions Case No. 64/2017 titled as State Vs. Dashrath Singh & Ors., whereby the application filed by the accused for re-summoning of Dr. Imran Sheikh (PW-5) was allowed.

3. The respondents No. 2 and 3 are facing trial before the said Court for the offences punishable under Sections 302, 201/511, 304-B and 313 of the Indian Penal Code (for short, 'the IPC') and accused Dashrath singh is in judicial custody since 26.07.2017.

4. As the trial proceeded almost to the end when the prosecution and the defence closed their evidence on 29.01.2021, the case was posted for hearing of final arguments and arguments on behalf of the complainant/prosecution is completed.

5. It appears that the arguments are being heard in piece-meal.

6. On 22.02.2021, an application came to be filed on behalf of the accused seeking permission to re-call and re-examination a witness namely Dr. Imran Sheikh (PW-5). Though the application was stoutly opposed by the prosecution/complainant's counsel, the trial court allowed it in exercise of its powers under Section 311 of the Code and summon was ordered to be issued to the said witness as per impugned order dated 10.03.2021.

7. The learned trial court held that the re-examination of Dr. Imran Sheikh (PW-5) was essential, since the said witness is an important link evidence for the prosecution; it is necessary to conduct a substantial cross-examination of the said witness by the defence counsel for a just decision of the case; many important points and aspects in respect of PMR and medical evidence will be revealed before the Court by giving such permission. According to the learned trial court, a party cannot be penalised for the mistakes of his lawyer; the complainant has failed to show as to how his interest would be prejudiced on recalling of the said witness. Making above observations, the application under Section 311 of the Code was allowed. The said order dated 10.03.2021 is assailed in this Misc. Petition.

8. Shri Poonam Chand Solanki, learned counsel for the complainant-petitioner has vehemently contended that the impugned order dated 10.03.2021 is absolutely illegal and amounts to a gross abuse of the process of the Court. He argued that the power under Section 311 of the Code cannot be exercised for filling-up the 'lacuna' in the defence. It is further argued that the trial is pending at the final arguments stage and the arguments on behalf of the complainant-petitioner have already been completed. During the course of final arguments, when he drew the attention of the Court towards many important aspects of the evidence thereafter, the application under Section 311 of the Code has been filed by the defence for the purpose of filling-up the lacuna of his defence.

9. It is further argued that almost all the important witnesses were cross-examined by Shri Dhirendra Singh and Shri Jai Veer Singh Deora, learned former counsels appearing for the accused. On 21.08.2019, Shri Pradeep Choudhary, Advocate has filed his Vakalatanama on behalf of the accused. PW-5 Dr. Imran Sheikh was examined on 11.12.2018 and on that day, no senior counsel was appointed on behalf of the accused who could have cross examined Dr. Imran Sheikh instead of his associate. It is argued that no witness can be recalled for examination on the ground that he was not cross-examined earlier on several important points. The present application has been filed only for the purpose of delaying the matter. Had the defence so desired, the present application coul