JUDGMENT :

Gautam Chowdhary, J.

1. Learned counsel for the applicant files rejoinder-affidavit today, taken on record.

2. Heard learned counsel for applicant, learned A.G.A. for the State, Sri Kamlesh Kumar Dwivedi, learned counsel for O.P. No. 2 perused the record.

3. This application has been filed with a prayer to set aside the order dated 12.2.2021 passed in the application moved by the counsel for the accused/applicant rejecting the application paper No. 100 Kha in S.S.T. No. 447 of 2015 (State v. Gaurav Gulati @ Dipesh) arising out of case crime No. 607 of 2015, under Sections 394, 302, 201, 411 IPC, P.S. Hariparwat, District Agra and further may be pleased to direct the learned Court below to summon the Dr. Sunil Yadav, under Section 311 Cr.P.C. as a Court witness to get him examine on oath for just decision of the case.

4. It is contended by learned counsel for the applicant that the FIR of the present against the unknown person has been lodged on 23.6.2015 with case crime No. 607 of 2015, under Sections 394, 302 IPC, P.S. Hariparwat, District Agra. After lodging the FIR the inquest report of both the deceased namely Km. Diksha nd Smt. Rama Gulati were prepared and doctor opinion the cause of death due to shock and hemorrhage as a result of anti mortem injury. Thereafter the I.O. claims to have recorded the statement of Nidhi Gulati, who is the married daughter of informant on 25.6.2015 on the basis of suspicion because after murder of her sister and mother the applicant has not came into the house of her parent. Thereafter I.O. further claims that when the applicant was arrested he told his name and father's name and on seeing his hands carefully, there were some injuries on his palm and fingers caused by sharp edge weapon and showed false recovery from his possession on 28.6.2015 and after making arrest of the applicant he was sent to medical examination in the clinic of Dr. Sunil Yadav posted as Emergency medical Officer, district Hospital, Agra wherein the medical examination report of the applicant was conducted and doctor noted Nil injury. After completing the investigation, the I.O has submitted the charge-sheet against the applicant, on which the learned Magistrate has taken the cognizance and case was committed to the Court of sessions as SST No. 447 of 2015.

5. It is further contended by learned counsel for the applicant during pendency of trial the applicant has filed an application under Section 311 Cr.P.C. for summoning of the Dr. Sunil Yadav, as a Court witness, who had conducted his medical examination for just decision of the case but the learned trial Judge vide order dated 12.2.2021 had rejected the application filed under Section 311 Cr.P.C. filed by the applicant without considering the facts and circumstances of the case.

6. Learned counsel for the applicant has also placed the reliance of Hon'ble Supreme Court in the case of Natasa Singh vs. CBI (State), on 8.3.2019 wherein it has been stated that:

''The Court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the Court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

8. In Mir Mohd. Omar and Others vs. State of West Bengal, AIR 1989 SC 1785, this Court examined an issue wherein, after the statement of the accused under Section 313 Cr.P.C. had been recorded, the prosecution had filed an application to further examine a witness and the High Court had allowed the same. This Court then held, that once the accused has been examined under Section 313 Cr.P.C. in the event that liberty is given to the prosecution to recall a witness, the same may amount to filling up a lacuna existing in the case of the prosecution and therefore, that such an order was uncalled for.''

Learned counsel for the applicant has again placed the reliance of this Court in the case of Manju Devi v. S