The court emphasized the duty of the court to determine truth and reach a just decision, highlighting the importance of Section 311 of Cr.P.C. and Section 73 of the Indian Evidence Act, 1872 in achieving this objective.

Hon’ble Sudhanshu Dhulia, J (Oral)

1. 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 witness 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 t