The main legal point established in the judgment is the duty of the court to invoke the powers under Section 311 Cr.P.C. and Section 165 of the Indian Evidence Act, 1872 to reach a just decision and discover the truth in a trial.

Sudhanshu Dhulia, J. (Oral):-

Heard learned counsels for the revisionist as well as learned counsels for the respondents.

2. This revision has been filed by the State of Uttarakhand challenging the or­der of the trial Court dated 15.5.2010 by which three applications, numbered as 148B, 149B and 150B moved by the prosecution under Section 311 Cr.P.C., 73 of the Indian Evidence Act, 1872 and 311 of Cr.P.C., respectively, were dis­missed in Sessions Trial Case, No. 463 of 2004 State Vs. Tilak Seth and others. The trial was relating to an offence under Sec­tion 302 read with 120B IPC.

3. The matter here was heard at some length on 9.9.2010. Today, the three applications namely 148B, 149B, 150B which are the subject matter of the dispute have been placed by the State before this Court. All these applications are made a part of record and marked as Annexures - A, B and C respectively.

4. This case springs from an order passed during the ongoing proceedings in a session trial No. 463 of 2004. The inci­dent took place in the year 2000, in which there were seven accused. The prosecution by the year 2010, had already examined a number of prosecution witnesses. What is material before this Court is the exami­nation of P.W.6 who was an eye witness to the murder. The case of the prosecu­tion is that P.W. 6, Udai Bhan, had come to the Court on 24.8.2004, which is proved by his signatures which are on the records of the Court. It is also the case of the prosecution that in December, 2003, an affidavit was given by Udai Bhan P.W. 6 stating that he must be examined as a witnes's at the earliest, as there is tremendous pressure upon him to turn hostile. It was in that connection that he had come to the court on 24.8.2004. Unfortunately this P.W. 6 was examined for the first time as late as on 7th Janu­ary, 2010. The examination-in-chief of P.W.6 commenced on 7th January, 2010 and the same day his cross-examination also started. While deposing before the Court P.W.6 denied having made any statement to the Police as alleged, under Section 161 of Cr.P.C. He further denied that he had seen the incident. He also denied that he was present in the Court on 24.8.2004 or that he had given any af­fidavit in December, 2003. In short this witness (P.W. 6) had turned hostile. The last cross-examination on this witness was done on 20.1.2010. A certified copy of the statement of P.W.6 is made a part of the record and marked as Annexure-D.

5. After the cross examination of P.W. 6 was over, the prosecution on the same day i.e. 20.1.2010, moved three ap­plications. First application 148B was moved for recalling P.W. 5 under Section 311 of Cr.P.C. Second application 149B was moved evidently under Section 73 of the Indian Evidence Act, 1872, for the pur­poses of corroborating the signatures of P.W.6 with the signatures on the affida­vit of 31.12.2003 with the record of the Court. According to the prosecution, this had become necessary because the signa­tures of P.W. 6 were already on the record of the Court and the signatures had to be verified under Section 73 of the Indian Evi­dence Act, 1872 in order that a just deci­sion be reached by the Court. The third application namely 150B was for exami­nation of two witness, namely, Ms. Shahin and Suresh Kumar Maheshwari, who were both the Advocates and Public Notary, respectively, and connected in one way or the other with the affidavit dated 31.12.2003. All these three applications were rejected by the trial Court on the ground that the re-examination of this witness or even examination of fresh wit­ness namely Ms. Shahin and Suresh Kumar Maheshwari would amount to "fill­ing of lacuna" in the case of the prosecu­tion. While rejecting these applications, the court below relied upon the law laid down by the Allahabad High Court in Tauseef and others Vs. State of U.P. 2003 (47) ACC 465, and it came to a conclu­sion that these three applications are be­ing filed merely to fill lacuna and there­fore cannot be allowed. All these

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