JUDGMENT - R.M.S. KHANDEPARKAR, J.:---Heard learned Advocate for the petitioner and the learned Additional Public Prosecutor for the State. 2. Perused the records. 3. Rule. Rule made returnable forthwith by consent. 4. The petitioner challenges the order dated 9th January, 2001 passed by the 3rd Additional Sessions Judge, Jalgaon in Sessions Case No. 222 of 1999. By the impugned order, the lower Court has allowed the application filed by the prosecution for re-examination of one witness and examination of one additional witness. 5. The facts, in brief, are that the Public Prosecutor appearing before the lower Court filed an application dated 8-1-2001 stating that the material piece of evidence remained to be brought on record. The evidence sought to be brought on record was the examination of the scribe of the First Information Report, Exhibit 11, and the examination of a doctor who had affixed his endorsement regarding the condition of the person giving declaration. The application was opposed by the petitioner-accused on the ground that the leave to place on record the proposed evidence was sought much after the conclusion of the trial and even after filing of written submissions by the parties and therein the petitioner having pointed out the lacuna in the prosecution case and the same is sought to be filled up. After hearing the parties, the lower Court allowed the said application. 6. The contention of the learned Advocate for the petitioner is that by allowing the prosecution to lead further evidence after the conclusion of the trial and much after filing of the written submissions by the parties wherein the petitioner has pointed out the lacunae in the prosecution case, the lower Court has virtually allowed the prosecution to fill up the said lacunae to the prejudice of the petitioner. According to the learned Advocate, it is a clear case of permitting filling up the gaps in the prosecution evidence and in any case mere lapse on the part of the prosecutor to lead evidence cannot be allowed to be to the benefit of the prosecution and to the prejudice of the petitioner and, therefore the impugned order is bad in law. Reliance is sought to be placed in the decision of the Apex Court in the matter of (Mir Mohd. Reliance is sought to be placed in the decision of the Apex Court in the matter of (Mir Mohd. Omar v. State of W.B.)1, reported in A.I.R. 1989 S.C. 1785 and (Mohanlal Shamji Soni v. Union of India)2, reported in A.I.R. 1991 S.C. 1346. On the other hand, the learned A.P.P. has submitted that the materials which are sought to be placed on record do not constitute new evidence as such but the same were known to the petitioner-accused at the time when charge-sheet was filed and copies thereof were made available to the petitioner. According to the learned A.P.P., the names of the witnesses sought to be examined clearly figure in the list of witnesses filed by the prosecution. Reliance is placed in the decision of the Apex Court in the matter of (Rajendra Prasad v. Narcotic Cell through its Officer-in-charge, Delhi)3, reported in A.I.R. 1999 S.C.W. 2356. 7. The Apex Court in Mir Mohd. Omar's case has held that in the sessions trial, the Court has limited jurisdiction with regard to correction of the recorded evidence of any witness. The object of section 278 is two fold, firstly to ensure that the evidence of the witness as recorded is accurate and secondly to give the witness concerned an opportunity to point out mistakes, if any. If the correction suggested by the witness is one which the Judge considers necessary he will make it at once as required by sub-section (1) but if the correction is such that the Judge does not consider necessary, sub-section (2) requires that a memorandum of the objection be made and the Judge may record his remarks, if any, thereto. The section is not intended to permit a witness to resile from his statement in the name of correction. In that case before the Apex Court, the correction slip was not filed when the day to day evidence of the witness was recorded and read over to him. Nor it was filed on the last day of recording his evidence. The slips did not bear any signature or date. The trial Judge, however, thought it fit to correct typographical errors in the statement of the witness but refused to make any correction or alter the substantive part of the evidence. Nor it was filed on the last day of recording his evidence. The slips did not bear any signature or date. The trial Judge, however, thought it fit to correct typographical errors in the statement of the witness but refused to make any correction or alter the substantive part of the evidence. In those circumstances it was held that the trial Judge was justified in refusing to effect the change which he thought was intended to change the earlier version. He did not make a memorandum as the correction slip was unsigned and was not properly filed. In those circumstances the interference by the High Court with the discretion exercised by the trial Judge in the matter of correction of the deposition of the witness was held to be unwarranted. 8. In Mohanlal Shamji Soni's case while dealing with the question whether section 540 of the Code of Criminal Procedure Code, 1898, which correspondents to section 311 of the Code of Criminal Procedure, 1973, gives the Court the power to summon any person as witness or to recall and re-examine him at any stage of proceedings, the Apex Court has held that though section 540 (section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the power of the Court should be exercised, or with regard to the manner in which the same should be exercised. Yet the exercise thereof shall be bearing in mind that the evidence to be obtained should appear to the Court to be essential to a just decision of the case by getting at the truth by all lawful means. The resort to the provisions of law contained in the section should be taken only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision in the case. It must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable result. The resort to the provisions of law contained in the section should be taken only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision in the case. It must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable result. It was also observed that due care should be taken by the Court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side. The additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties. 9. In Rajendra Prasad's case the Apex Court has observed thus : "It is a common experience in criminal courts that defence Counsel would raise objections whenever courts exercise powers under section 311 of the Code or under section 165 of the Evidence Act by saying that the Court could not fill the lacuna in the prosecution case. A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage "to err is human" is the recognition of the possibility of making mistakes to which humans are proned. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all, function of criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better." 10. The Apex Court while deciding the said Rajendra Prasad's case has referred to its earlier decision in (Jamatraj Kewalji Govani v. State of Maharashtra)4, reported in A.I.R. 1968 S.C. 178 wherein it was observed thus : "It would appear that in our criminal jurisdiction, statutory law confers a power in absolute terms to be exercised at any stage of the trial to summon a witness or examine one present in Court or to recall a witness already examined, and makes this the duty and obligation of the Court provided the just decision of the case demands it. In other words, where the Court exercises the power under the second part, the inquiry cannot be whether the accused has brought anything suddenly or unexpectedly but whether the Court is right in thinking that the new evidence is necessary by it for a just decision of the case." 11. While disposing of the Rajendra Prasad's case, the Apex Court has held thus : "We cannot therefore accept the contention of the appellant as a legal proposition that the Court cannot exercise power of re-summoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that prosecution discovered laches only when the defence highlighted them during final arguments. The power of the Court is plenary to summon or even recall any witness at any stage of the case if the Court considers it necessary for a just decision." 12. The power of the Court is plenary to summon or even recall any witness at any stage of the case if the Court considers it necessary for a just decision." 12. It is, therefore, apparent that the law laid down by the Apex Court is that a mere lapse or omission in the evidence arising out of lapse on the part of the prosecutor in placing relevant evidence before the Court even though such evidence was collected by the investigating machinery in the course of investigation and was forming part of the charge-sheet filed in the Court, it cannot be considered as lacuna in the prosecution case since such lapse or omission is clearly a fall out of the oversight committed by the prosecutor during the trial in producing relevant materials on record. If such evidence is necessary or relevant for just decision of the case then the Court in exercise of power under section 311 can summon a witness or also re-summon an already examined witness. 13. The trial Court while allowing the application of the prosecutor by the impugned order, has clearly observed that though the dying declaration has already been exhibited as Exh. 22, the person who scribed the dying declaration remained to be examined. As also the doctor who had certified about the condition of the victim at the time of dying declaration, though was examined as a witness, evidence regarding his endorsement remained to be brought on record through the said witness and, therefore, it was necessary to examine the said person who had scribed the dying declaration and the doctor to be re-examined to bring on record the evidence regarding his endorsement and in doing so the petitioner accused would get ample opportunity to cross-examine both the witnesses in relation to the evidence which is sought to be brought on record. The trial Court has also observed that in the facts and circumstances of the case, the evidence sought to be brought on record is necessary to decide the matter in proper perspective. In other words, the trial Court, in exercise of its discretion under section 311 of the Cri.P.C., considering the facts and circumstances of the case has found it necessary for a just decision in the matter to allow the prosecution to place on record the additional evidence sought to be led in the matter. In other words, the trial Court, in exercise of its discretion under section 311 of the Cri.P.C., considering the facts and circumstances of the case has found it necessary for a just decision in the matter to allow the prosecution to place on record the additional evidence sought to be led in the matter. There is no doubt that the prosecution evidence was already closed and even the parties had submitted written submissions in support of their contentions and only thereafter the application for further evidence was filed by the prosecutor. The prosecutor has fairly stated in his application that the same remained to be produced on record on account of his oversight. It is also true that the error on the part of the prosecution in not producing the said evidence was specifically referred to in the written submission by the petitioner and only thereafter the application for further evidence was filed. The learned Advocate for the petitioner in that regard has submitted that such an exercise would virtually result in allowing the prosecution to fill in the lacuna in the evidence to the prejudice of the accused-petitioner. However, the Apex Court in Rajendra Prasad's case has clearly held that the power of re-summoning any witness is not whittled down merely on the ground that prosecution discovered laches only when the defence highlighted them during final arguments. In other words, the Apex Court has held that merely because of filing of the written statement or final arguments by the accused cannot take away the powers under section 311 to summon witnesses when the evidence of such witnesses is necessary for just decision in the matter. It cannot be disputed that in the facts and circumstances of the case, the evidence of the scribe of the dying declaration as well as of the doctor who had certified the condition of the victim at the time of dying declaration is very relevant piece of evidence and necessary to arrive at the just decision in the matter. 14. In the circumstances, therefore, I do not find illegality to have been committed by the trial Court in allowing the application filed by the prosecutor. The discretion under section 311 of the Cri.P.C. apparently has been exercised judiciously in the facts and circumstances of the case in hand. Hence no interference is called for and therefore the petition fails and is dismissed. The discretion under section 311 of the Cri.P.C. apparently has been exercised judiciously in the facts and circumstances of the case in hand. Hence no interference is called for and therefore the petition fails and is dismissed. Rule is discharged. Petition dismissed. -----