VILAS GOKUL PATIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this Revision, petitioner impugns the order dated 13-10-1998 passed by learned Additional Sessions Judge, Amalner, allowing application filed for recall of the witness.

(2.) The facts in nutshell are that petitioner along with others, is being tried for offence punishable under sections 498-A, 302 read with section 34 of the indian Penal Code ("ipc") , In all seven witnesses were examined during the trial including Dr. Videkar (PW 4). However cause of death was not proved through the testimony of Dr. Videkar. After receipt of CA report, learned Assistant Public prosecutor filed ah application Exh. 54 for recall of Dr. Videkar. Learned trial judge found that evidence of Dr. Videkar is necessary for just decision of the case, as it is necessary to ascertain cause of death of deceased. He, therefore, allowed application for recall of the witness by order dated 13-10-1998.

(3.) Learned counsel for petitioner challenged legality of this order on the sole ground that recall is for the purpose of filling of lacuna by the prosecution. According to the learned counsel, the cause of death of deceased should have been proved when the witness was examined. The infirmity cannot be cured by resorting to extraordinary power of the Court. Allowing the prosecution to recall the witness amounts to filling of lacuna and causes prejudice to the accused. Therefore, the impugned order deserves to be set aside.