HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT

JAIPUR

S.B. Criminal Writ No. 411 / 2017

Shyam Lal

----Petitioner

Versus

State Of Rajasthan Through Pp

----Respondent

_____________________________________________________

Mr. Suresh Sahni with

Mr. R.M. Sharma for the accused petitioner

Mr. N.S. Dhakad PP for the State

Mr. S.c. Gupta for the complainant

_____________________________________________________

HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

Judgment

12/09/2017

Instant writ petition has been filed by the accused

petitioner under Article 226 of the Constitution of India read with

Rule 315(1)(H) of the Rajasthan High Court Rules praying therein

to set aside the order dated 22.8.2017 passed by learned Addl.

Sessions Judge, Gangapur City, District Sawai Madhopur (‘the

learned trial court’ for short) in Sessions Case No. 73/2015,

whereby the application dated 19.8.2017 filed by the prosecution

for re-examination of prosecution witness namely; Smt. Prem Devi

(PW2) has been allowed.

Learned counsel for the accused petitioner has

submitted that the accused petitioner along-with co-accused is

facing trial for the offence under section 302 read with section

120B IPC in the learned trial court in Sessions Case No. 73/2015.

(2 of 8)

[CRLW-411/2017]

On 19.8.2017 the case was fixed for prosecution evidence and on

that date the prosecution examined its witness Smt. Prem Devi as

PW2. Statement of this witness was recorded in two sessions; one

before the recess and other post the recess. This witness in her

examination-in-chief has stated that today she cannot identify the

accused. Thereafter, this witness was cross-examined by the

defence and at the time of recess, further cross-examination was

deferred for post recess, on the same day i.e 19.8.2017. Counsel

submitted that thereafter this witness was examined post recess

and before the further cross-examination, a note was recorded by

the learned trial court vis-a-vis that the oath was administered

with the continuation of cross-examination with pre-recess

session. Counsel submitted that this witness made signature on

the statement given by her after after reading the same. Counsel

further submitted that after conclusion of the cross-examination

of this witness, the learned PP moved an application to the effect

that the typist recording the statement of this witness has

inadvertently not recorded in examination-in-chief that “eqdnes dh ?

kVuk dks nks <kbZ lky dk le; gks x;k gS ,oa esjs ifr dh e`R;q ds ckn eSa ekufld :i ls

rukoxzLr gWwA” and also mentioned in the application that this fact

came in her notice after reading the same and prayed for re-

examination of this witness.

Counsel also submitted that on 21.8.2017, Smt. Prem

Devi (PW2) also filed an application along-with affidavit in relation

to the inadvertence mistake qua non-recording of the statement

that “?kVuk dks nks <kbZ lky gks x;s gS rFkk esjs ifr dh e`R;q gksus ds ckn eSa ekufld :i ls

rukoxzLr gwW blfy, vkt ugha igpku ldrhA”. Counsel submitted that

(3 of 8)

[CRLW-411/2017]

thereafter the petitioner filed reply to the applications filed by the

learned PP inter-alia as to the tenability of the application

mentioning therein that re-examination of this witness cannot be

permitted to fill up the lacunae left by the witness and

inadvertence pleaded by the prosecution indeed has not occurred.

Counsel further submitted that the learned trial court allowed the

application vide order dated 22.8.2017 on erroneous assumption

and application of law. Counsel submitted that the impugned order

has been passed in crass and grotesque contravention of the

mandate of Section 138 of the Indian Evidence Act. Counsel

submitted that the impugned order indeed permits the prosecution

to fill up the lacunae, which cannot be permitted under the law.

In support of aforesaid submissions counsel placed

reliance on a Judgment delivered b