The power under Section 311 Cr.P.C., 1973 should be used to find the truth and obtain proper proof for a just decision, and not to fill any lacuna in the prosecution case.

N. Kotiswar Singh, J.

Heard Ms. K Neeru, learned counsel for the petitioner. Heard also Mr. H. Samarjeet, learned additional PP for the State.

2. The present petition has been preferred against the order dated 29.04.2017 passed by the Court of Special Judge (POCSO), Imphal West in Cril No. 14 of 2017 by which the application of the Prosecution filed under Section 311 Cr.P.C., 1973 for allowing to examine an additional witness who was not earlier listed in the charge sheet was allowed.

3. Before, we proceed with this matter, it may be appropriate to refer to some basic facts as may be relevant for deciding in this petition. A trial is going on against the petitioner and another accused (proforma respondent no. 2) in connection with the charge for committing offence under Section 366-A read with 34 IPC and Section 6 of POCSO Act. After the framing of charge against the accused including the petitioner, a supplementary charge sheet was also submitted. The trial commenced thereafter and the Prosecution examined as many as 14Prosecution witnesses by 28th October, 2016. Thereafter, on 03.02.2017, an application was filed by the Public Prosecutor under Section 311 Cr.P.C., 1973 praying for allowing to examine one witness namely, Loitongbam Bilashini Chanu, Scientific Officer, Mobile Forensic Unit, Forensic Science Laboratory, Manipur, Pangei stating that due to bonafide mistake, the IO of the case had failed to mention one important witness, the above named person, who had collected important exhibits during the time of investigation of the case. The petitioner filed objection to the said application contending that the name of the aforesaid witness was never mentioned by the I.O. of the case in the Charge-sheet as well as in her evidence. The involvement of the witness was also never mentioned in the case. It was further stated that granting this prayer would amount to allowing the Prosecution to fill up its lacuna which would cause prejudice to the accused. The application was heard and disposed of by the impugned order dated 29.04.2017. The relevant portion of the impugned order is reproduced as follows:-

"The prosecution has examined almost all the witnesses and from the Charge sheet and exhibited documents, it shows that one Maruti Alto Car being Registration No. MN01S/1715 belonging to Mrs. Awenshi Sereneh was involved and the said vehicle was seized during the course of investigation. The I.O. of the case who was examined as P.W. No. 13 has deposed that she had taken the said vehicle to FSL, Pangei and seized 16 nos. of articles from the involved vehicle with the assistance of the Forensic experts. The I.O. of the case seized the said 16 nos. of articles by preparing a seizure memo which is exhibited as Ext. P- 20 and in the said seizure memo, the I.O. of the case also mentioned that she had seized the said articles with the assistance of the Forensic Expert team. Nevertheless, the I.O. in her charge sheet did not reflect the name of the expert in the witness column. However, it is settled principle of law that the Court has ample power to examine any witness even if his name is not mention in the list of the witnesses of the charge sheet if the court has satisfied that the examination of the said witness is essential for just decision of the case provided it should not be fill up the lacuna of the prosecution. The prosecution just want to examine the one of the expert officer of FSL, Pangei who assisted the I.O. in the recovery of 16 nos. of articles from the said Alto car. Since the recovery of 16 nos. of articles and seizing of the same are in the record as per the statements of the I.O. [P.W. No. 13] as well as Ext. P- 20, it is not a new fact to the accused persons and therefore, no injury will cause to the accused persons in examining the person who assisted the I.O. of the case in collecting the said seized articles. More so, examining of the said expert cannot be said that it is for fill-up the lacuna of the pros