SHYAM LAL Vs. STATE OF RAJASTHAN THROUGH PP

JUDGEMENT

(1.) 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.

(2.) 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. 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 and also mentioned in the application that this fact came in her notice after reading the same and prayed for reexamination of this witness.

(3.) 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 Counsel submitted that 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.