MAHENDRA SINGH Vs. STATE OF UTTARAKHAND & ANR

JUDGEMENT

(1.) This criminal revision is directed against the order dated 11.01.2019 passed by 2nd Additional Sessions Judge, Rudrapur, District Udham Singh Nagar, in S.T. No.169 of 2013, State vs. Harbail Singh and other, whereby the said court has allowed the application paper no.667([k) moved by the prosecution under Section 311 of Cr.P.C.

(2.) Brief facts of the case are that the revisionist-accused and other co-accused are facing trial for the offences under Section 147, 148, 149, 302, 307, 120-B, 174A, 34 of IPC in Sessions Trial No.169 of 2013 before 2nd Addl. Sessions Judge, Rudrapur, District Udham Singh Nagar. After the closure of prosecution evidence, the trial court has recorded the statements of accused person u/s 313 of Cr.P.C. On 20.12.2018, the public prosecutor moved an application under Section 311 of Cr.P.C. before the trial court to recall the prosecution witnesses, namely, Inspector J.C. Pathak, Inspector Pramod Sah, Sub Inspector Amar Sharma, Sub Inspector Akram and Sub Inspector Sanjay Kumar, on the ground, that at the time of preparation of the case for hearing, it came to his notice that due to human error, arrest memo could not be proved, which is necessary to be proved. On the application so moved by the prosecution, defence sought time to file objections, however, inspite of time granted, objections were not filed. After hearing the parties and going through the papers on record, the trial court observed that it is necessary for proper adjudication of the case that the prosecution witnesses may be recalled as the accused persons have controverted their identification and parentage, and accordingly, by the impugned order dated 11.01.2019, trial court allowed the application paper no.667(kha).

(3.) Learned counsel for the revisionist would submit that after the statements of accused have been recorded u/s 313 of Cr.P.C., the prosecution has filed the application, which is clearly an attempt to fill up the lacuna which ought not to be allowed. According to learned counsel, recall of prosecution witnesses would cause serious prejudice to the accused persons. He would further submit that said witnesses had been examined in the year 2014 and now after a lapse of four years, present application has been moved by the prosecution wherefor no explanation has been provided by the prosecution. He would contend that the application has been moved to fill up the lacuna and to make good the case of prosecution. To buttress his arguments, learned counsel would place reliance on a few decisions of the Hon'ble Apex Court:-