Rajiv Sharma, J.

This petition is instituted against the order dated 15.12.2015 rendered by learned Additional District & Sessions Judge, Kashipur, District Udham Singh Nagar in Session Trial No.331 of 2013.

2. “Key facts”, necessary for adjudication of this petition, are that the petitioner is facing trial under Section 302 of I.P.C. in the Court of learned Additional District & Sessions Judge, Kashipur. The trial has commenced. Prosecution has produced one witness namely Smt. Sunita (complainant) on 07.05.2014. She was cross-examined by learned Advocate appearing on behalf of the petitioner.

3. Thereafter, application under Section 311 of Cr.P.C. has been filed belatedly on 20.10.2015 on the pretext that certain important questions could not be put to PW1 Smt. Sunita in cross examination.

4. No cogent reasons have been assigned in the application seeking further summoning of PW1 Smt. Sunita for cross examination. PW1 has already been cross examined by the learned Advocate appearing on behalf of the accused.

5. Their Lordships of the Hon’ble Supreme Court in Rajaram Prasad Yadav Vs. State of Bihar and another, report in (2013) 14 SCC 461 have laid down following principles to be observed at the time of deciding the application under Section 311 of Cr.P.C. read with Section 138 of the Evidence Act. Their Lordships have held as under:-

17.1 Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case?

17.2 The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.

17.3 If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person.

17.4 The exercise of power under Section 311CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

17.5 The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

17.6 The wide discretionary power should be exercised judiciously and not arbitrarily.

17.7 The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.

17.8 The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision.

17.9 The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.

17.10 Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified.

17.11 The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at th