The power under S.311, Cr.P.C. must not be used to fill gaps in evidence but to ensure a fair trial.

1. Heard.

This revision arises out of order dated 29.12.2016 passed in Sessions Trial No.70 of 2016 by the First Additional Sessions Judge, Durg whereby applicant's (accused) application under S.311 of the Code of Criminal Procedure has been rejected.

2. The accused is being tried for commission of offence under S.302 of IPC. The prosecution, on various dates, examined number of prosecution witnesses. However, on 26.12.2016, the applicant moved an application under S.311, Cr. P.C. praying for recall of Chandra Bhushan Tandon (PW1), Rahul Tandon (PW2) and Dr. A.K. Nagdeo (PW12). In the application (Annexure A / 2), it was stated that on some important points there was lapse by the earlier counsel while cross - examining Chandra Bhushan Tandon (PW1) and Rahul Tandon (PW2), therefore, the two witnesses may be recalled for examination.

3. Insofar as A.K. Nagdeo (PW12) is concerned, it was stated in the application that the doctor has been examined only in respect of a part of the post - mortem report. Though the report is in detail with regard to presence of injuries examination of internal parts like heart, liver, vagina and intestine etc., the doctor could not be examined on those aspects which is necessary to find out the time of death.

4. The applicant also sought re - examination of B.C. Barre (PW8) Investigating Officer by stating that earlier counsel has failed to examine the witness on certain important aspects.

5. Application was replied by the prosecution by stating that the accused was given full opportunity to cross - examine the witnesses; application is vague; that the post - mortem report (Ex.P / 4) having already been proved by the doctor would require detailed consideration and the application has been filed only to delay the trial. It was also stated in the reply that the witnesses have already made detailed statement and recall of witnesses, will protract the trial.

6. Learned Court below having examined the application of merits concluded that earlier full opportunity of cross - examination was granted. Further observation was that if the defence was inclined to elicit something more from the doctor, who proved post - mortem report, the right could be exercised by way of cross - examination and the attempt is only to fill up lacuna. The Court recorded that on such application, if those four witnesses, as prayed by the accused, are recalled, it will result in delay of trial and the application was rejected.

7. Learned counsel for the applicant submits that the applicant is being tried for commission of serious offence which may result in life imprisonment, therefore, in the interest of justice, he may be granted one opportunity to recall the stated witnesses so that he may avail his right to cross - examination of those witnesses. It is further submitted that mere delay by itself, is not a ground to reject the application under S.311, Cr. P.C. if otherwise, there is full justification for recall of witnesses. Lastly, it is submitted that the power of Courts are of wide amplitude and irrespective of the stage, in larger interest of justice to find out truth and also to afford full opportunity to defend, accused's application under S.311 Cr. P.C. ought to be allowed.

8. On the other hand, learned State counsel opposes and submits that the application of the applicant was vague. Full opportunity to cross - examination was granted. Mere change of circumstances, is not a ground to move the application under S.11, Cr. P.C. as a cloak and device to fill up lacunae and further that in any case, full opportunity have already been directed to recall witnesses will put the clock back resulting in undue delay and conclusion of trial.

9. After hearing learned counsel for the parties, the circumstances of the case and the reasons for which, the prayer for recall of witnesses was made, I am of the opinion that the Court below has not committed any illegality, irregularity or perversity in exercise of his jurisdiction in rejecting pet