The power to recall a witness under Section 311 of Cr.P.C. should be used only for the ends of justice and not to fill up gaps in evidence or introduce evidence after a significant lapse of time.

S.K. PALO, J.

1. This revision under Section 397 read with Section 401 of Cr.P.C. has been filed challenging the legality, validity and propriety of the impugned order dated 31.10.2014 passed by the IIASJ, Sabalgarh in ST No. 63/2013, by which the application under Section 311 of Cr.P.C. for re-calling the witness has been rejected. The facts just necessary for disposal of the case are that; the petitioner is accused in ST No. 63/13 and facing charge under Section 376 of IPC During the trial, PW-1, prosecutrix was examined on 17.5.2013. PW-2 Darshan was examined on 18.6.2013, PW-3, Dr. Archna has been examined on 19.6.2013.

2. The petitioner/accused filed an application under Section 311 of Cr.P.C. dated 2509/2014 which was decided by the impugned order dated 31.10.2014 by the trial Court. The petitioner accused submitted that during the examination of prosecutrix some important questions could not be asked by Advocate Shri A.K. Shrivastava. Therefore, her cross examination could not be conducted properly and effectively. The mistake committed by the counsel has to be corrected. Now, the petitioner accused has changed his counsel. Now, the petitioner is represented by Shri Puran Singh Yadav, Advocate. Therefore, the prosecutrix be recalled for further cross examination. It is also stated that, because of altercation regarding partition, the prosecutrix and her husband Darshan lodged reports on 12.12.2012 and on 5.12.2012 at Police Station, Sabalgarh, on the basis of which Crime No. 129/12 was registered for the offence under Sections 151, 107, 163) of IPC and on 5.12.2012 the petitioner accused was arrested from his house by the Police Sabalgarh. He was released on bail on 6.12.2012 at 7 PM from the Jail Sabalgarh. Therefore, on this point questions could not be asked to the prosecutrix. The alleged incident said to have taken place on 6.6.2012. The petitioner, therefore, prayed for re-calling the prosecutrix for further cross examination.

3. The learned trial Court vide its impugned order rejected the prayer, stating that enough opportunities were granted to the accused petitioner and permission cannot be granted for further cross examination of prosecutrix PW-1 hence, application is rejected.

4. The learned counsel for the petitioner argued that section 311 of Cr.P.C. provides re-calling of the witness, it is essential for just decision of the case, re-call and re-cross examination of prosecutrix specifically mentioned in the application can prove him innocent. Therefore, the impugned order be set aside and it be directed to the Trial Court to recall the prosecutrix for re- cross-examination.

5. On behalf of the State, learned PL submitted that the order impugned is proper in the eyes of law, proper opportunity were provided to the petitioner to cross examination the prosecutrix. Prosecutrix (PW-l) was cross examined on 17.6.2013. Subsequently, again on 21.5.2013 the prosecutrix was elaborately cross examined by the learned counsel Shri Anil Kumar Shrivastava. Therefore, enough opportunities were granted to the petitioner. Case was further adjourned for examination of accused and at the belated stage such application was filed which is intended to fill up the lacuna. That being so, the impugned order does not call for any interference.

6. Section 311 of Cr.P.C. Provides for recalling of witness at any stage of the trial, to prevent the failure of justice and gives wide discretion to the Court. The power conferred under Section 311 of Cr.P.C. should be invoked by the Court only for the ends of justice.

7. This provision to recall witness or to re examine or further cross examination can be used if it is necessary in the interest of justice. The same has to be exercised after taking into consideration the facts and circumstance of each case.

8. Where the prosecution witness is over, an application by the accused for recalling the prosecution witness for further cross examination was nothing but abuse of process of law, the reje