JUDGMENT C.R. Sarma, J. 1. By filing this petition, under Sections 401 and 397 of the Code of Criminal Procedure, 1973 (for short, Cr.P.C.), the petitioner, who is an accused in Sessions Case No. 272 (CH)/2012, has challenged the order, dated 23.09.2013, passed by the learned Sessions Judge, Tinsukia, whereby the complainant's application, filed under Section 311 Cr.P.C., for examination of additional witnesses was allowed. I have heard Mr. D. Talukdar, learned Counsel for the petitioner, Mr. B. S. Sinha, learned Additional Public Prosecutor, Assam and Mr. P.J. Saikia, learned Counsel, appearing for the private respondent. 2. The prosecution case, as may be relevant for disposal of this petition, may, in brief, be stated as follows: On 25.12.2011, all the members of the staff of the Saikhowaghat State Dispensary, including the petitioner, who was a Medical Officer of the said hospital and Mr. Amulya Das, an employee (for short, deceased) of the said hospital also attended the said picnic. In the said picnic, due to a quarrel, the accused assaulted the deceased, as a result of which he expired. Sri Upen Das (PW-1), brother of the deceased, lodged an FIR (Ext. No. 1) with the Dhola Police. During the investigation, Police examined 17 (seventeen) witnesses and, at the end of the investigation, submitted charge- sheet, for the offence under Section 302 IPC, against the petitioner (hereinafter called the accused). 3. During the trial, all the cited (seventeen) prosecution witnesses were examined by the prosecution. At the close of the evidence for the prosecution, the accused was examined under Section 313 Cr.P.C. and he denied the allegations, brought against him. Out of 17 (seventeen) witnesses, examined by the prosecution, 5 (five) witnesses i.e. PW-4, PW-6, PW-7, PW-9 and PW-12, were declared hostile and cross-examined by the prosecution. However, from their cross-examination, nothing incriminating could be elicited against the petitioner. As revealed from the evidence of the witnesses (certified copies of depositions produced), it appears that none of the said witnesses directly implicated the accused person with the death of the deceased. Of course, PW-3 stated that he was told by Samsul Hoque (PW-5) and Mridul Handique (PW-4) that a fight had taken place between the deceased and the accused. But, both PW-4 and PW-5 refused to support the said evidence of PW-3. 4. Of course, PW-3 stated that he was told by Samsul Hoque (PW-5) and Mridul Handique (PW-4) that a fight had taken place between the deceased and the accused. But, both PW-4 and PW-5 refused to support the said evidence of PW-3. 4. After the examination of the accused, under Section 313 Cr.P.C., i.e. on the date of argument, the informant (PW-1) filed an application, under Section 311 Cr.P.C., praying for permission to examine 6 (six) additional witnesses (not shown in the charge-sheet) including the widow of the deceased. In the said application, the grounds for examining the additional witnesses, have been stated as follows: 3. That the cited witnesses are well acquainted with the facts and circumstances of this case and intend to depose their evidence before the Hon'ble Court for the just decision of their case. 4. That the above named petitioner prays before your honours Court that the evidence of the cited witnesses are essential to the just decision of this case. The learned Sessions Judge allowed the said prayer on two grounds i.e. (i) the widow of the deceased should not be debarred from giving evidence and secondly, the other witnesses, who were enjoying picnic party near the place of occurrence might be able to throw some light on the matter. The said prayer has been contested by the accused person. It has been contended that the provision of Section 311 Cr.P.C. can not be used for filing up the lacuna in the prosecution case and that, in view of failure of the prosecution to establish the case, even after examination of 17 (seventeen) witnesses, there is no necessity to examine additional witnesses. It has also been contended that examination of such witnesses, who are not relevant to the facts of the case, will cause much prejudice to the accused. 5. Mr. D. Talukdar, learned Counsel, appearing for the petitioner, has submitted that, in order to exercise the power under Section 311 Cr.P.C., the Court has to be satisfied that the examination of additional witnesses is essential for just decision of the case. The learned Counsel for the petitioner has submitted that none of the prosecution witnesses, including the informant (PW-1), stated that, on the fateful day, any other picnic party was giving on near the place of occurrence and that the proposed witnesses were present at the time of occurrence. The learned Counsel for the petitioner has submitted that none of the prosecution witnesses, including the informant (PW-1), stated that, on the fateful day, any other picnic party was giving on near the place of occurrence and that the proposed witnesses were present at the time of occurrence. Therefore, it has been argued, by the learned Counsel for the petitioner, that no case has been made out for examination of the persons, as mentioned in the list, annexed to the application under Section 311 Cr.P.C. It has further been submitted that the examination of the said persons, at this stage, would cause much prejudice and injustice to the accused person. 6. Supporting the impugned order, Mr. P.J. Saikia, learned Counsel, for the informant has submitted that the wife of the deceased being a relevant witness, her examination is very much necessary to unearth the truth and that the other additional witnesses, who were enjoying picnic near the place of occurrence, would help to arrive at a just decision. The learned Counsel for the respondent has relied on the following decisions: (i) Natasha Singh v. CBI, reported in (2013) 5 SCC 741 , and (ii) Rajendra Prasad v. Narcotic Cell, reported in (1996) 6 SCC 110. The learned Additional Public Prosecutor has submitted that, it is necessary to examine if the proposed witnesses are relevant witnesses and whether their examination is necessary for arriving at a just decision. 7. Having head the learned Counsel for both the parties, I have carefully perused the impugned order, the application under Section 311 Cr.P.C. and depositions of the prosecution witnesses (certified copies furnished). The power under Section 311 Cr.P.C. is to be exercised for doing justice i.e. to arrive at a just decision in a case. As provided by Section 311 Cr.P.C., a Court, at any stage of inquiry, trial or other proceeding under the Code (Cr.P.C.) may summon any person in attendance though not summoned as witness or recall, re-examine, any person already examined, if such person's evidence appears to be essential to the just decision of the case. 8. A careful reading of the Section 311 Cr.P.C., indicates that the Court, exercising jurisdiction under Section 311 Cr.P.C. must be satisfied that examination or re-examination of witness is essential for arriving at a just decision. The satisfaction of the Court in this regard must base on materials on-record. 8. A careful reading of the Section 311 Cr.P.C., indicates that the Court, exercising jurisdiction under Section 311 Cr.P.C. must be satisfied that examination or re-examination of witness is essential for arriving at a just decision. The satisfaction of the Court in this regard must base on materials on-record. This power can not be exercised to fill up any lacuna, causing prejudice to the accused. 9. In the case of Natasha Singh v. CBI, the accused person filed an application under Section 311 Cr.P.C., at the argument stage, seeking permission to examine the witnesses. The trial Court rejected the prayer. High Court also upheld the said order. The accused filed an appeal against the said orders before the Supreme Court and the Supreme Court, while reversing the said orders referred to the following observation, made in the case of Rajendra Prasad (Supra). 15. The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of 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 opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 Cr.P.C. must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 Cr.P.C. must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as "any court", "at any stage", or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case. 10. The Supreme Court in the case of Natasha Singh (Supra) also observed: 8. 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 oversight 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. After all, function of the 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. 11. As held by the Supreme Court, the power under Section 311 Cr.P.C. is to be exercised for arriving at a just decision in a case. In view of the said legal proportions, it is to be examined if the examination of additional witnesses, in the present case, is essential for just decision of the case. Admittedly, all the non official witnesses, who have been examined by the prosecution, attended the picnic party at the relevant time and the occurrence took place in the said picnic party. But none of them stated anything incriminating against the accused. Admittedly, all the non official witnesses, who have been examined by the prosecution, attended the picnic party at the relevant time and the occurrence took place in the said picnic party. But none of them stated anything incriminating against the accused. Therefore, the informant (PW-1) with a view to substantiate the prosecution case prayed for permission to adduce additional evidence by examining some persons, who were not examined by the Investigating Officer, during the investigation. 12. There can be no dispute that, in order to examine such unlisted persons as witnesses, in a criminal proceeding, it must be shown that they are relevant witnesses to the occurrence and that, their examination is essential to arrive at a just decision. Fairness of trial is the basic fundamental of criminal jurisdiction and this principle is to be protected at any cost. Therefore, the power under Section 311 Cr.P.C. is to be exercised judiciously, fairly and for ends of justice and not arbitrarily. To remove the possibility of arbitrariness the order must be based on sound reasons. An application under Section 311 Cr.P.C. can not be allowed to fill up the lacuna or to the disadvantage of the accused resulting prejudice to him. Therefore, the application, filed under Section 311 Cr.P.C., must contain cogent and good grounds for examination of fresh witnesses. 13. In the case at hand, despite examination of as many as 17 (seventeen) witnesses, the prosecution failed to substantiate the prosecution version, regarding involvement of the accused with death of the deceased. In the application, filed under Section 311 Cr.P.C., except stating that the witnesses (intended to be examined under Section 311 Cr.P.C.) are well acquainted with the facts and circumstances of the case, that they intend to give evidence for just decision, the prosecution, or the informant failed to disclose convincing ground showing that the said persons are relevant witnesses to the occurrence and that their examination is essential to find out the truth and arrive at a just decision. The statement that the said persons are well acquainted with the facts and circumstances of the case is a vague one. The application must reveal as to how they are acquainted with the facts of the case. The application does not indicate that they were either present in the place of occurrence or had any knowledge about the occurrence. 14. The statement that the said persons are well acquainted with the facts and circumstances of the case is a vague one. The application must reveal as to how they are acquainted with the facts of the case. The application does not indicate that they were either present in the place of occurrence or had any knowledge about the occurrence. 14. The learned Sessions Judge, in the impugned order, mentioned that it was stated by the complainant (PW-1) that the persons, shown at serial Nos. 1 to 4 of the list, annexed to the application under Section 313 Cr.P.C., were enjoying picnic near the place, where the accused and the deceased were enjoying a picnic party. But, in his application, under Section 311 Cr.P.C., the informant (PW-1) did not state that another party was enjoying picnic near the place of occurrence. If any such group was also enjoying another picnic party, then it should have been mentioned in the application, filed under Section 311 Cr.P.C. That apart, the witnesses, already examined, including the informant (PW-1), who lodged the FIR and filed the application under Section 311 Cr.P.C. should have disclosed the same. But, none of the already examined witnesses stated that another picnic party was held near the place of occurrence. The silence of the prosecution witnesses, in this regard, negates the contention that another picnic party was going on near the place of occurrence and that the listed persons were present, there, at that fateful moment. Therefore, I find no sufficient reasons or basis, in support of conclusion, held by the learned trial Judge that the proposed witnesses were members of another picnic party, which was organized near the place of occurrence. 15. Therefore, there is no material to find that the said persons are relevant witnesses. In the absence of relevancy, it can not be held that examination of the said witnesses is essential for arriving at a just decision. Further, as the said persons were not examined during the investigation, their examination, at such belated stage, that too in the absence of any materials regarding their relevancy, will not be just and fair. Rather, their examination may cause prejudice to the accused. Doing justice to one side does not mean that injustice can done to the other side. The object of Section 311 Cr.P.C. is to arrive at a just decision by following the procedure of fair trial. Rather, their examination may cause prejudice to the accused. Doing justice to one side does not mean that injustice can done to the other side. The object of Section 311 Cr.P.C. is to arrive at a just decision by following the procedure of fair trial. In view of failure of the prosecution witnesses, already examined, to substantiate the prosecution version, examination of fresh witnesses, without any relevancy, will certainly cause prejudice to the accused. However, the wife of the deceased, being the closest person and legal representative of the deceased may throw some light on the matter. For ends of justice and to unearth the truth, she should be allowed to speak regarding the death of her husband and the Investigating Agency ought to have examined her as a witness. Therefore, the impugned order, so far it relates to allowing the prosecution to examine the wife of the deceased, as witness, does not suffer from any illegality. Rather, ends of justice, demands the examination of the wife, in a case relating to the death/murder of her husband. 16. In view of the above discussions, there is nothing, on record, to find that the said persons were also enjoying a picnic near the place of occurrence. Therefore, it can not be held that they (not the widow of the deceased) are relevant witnesses to the occurrence. Hence, their examination, except the said widow, can not be held to be essential and imperative for arriving at a just decision of the case. In view of what has been stated above, I have no hesitation in holding that the learned Sessions Judge committed error by allowing to call the said persons, except the wife of the deceased, for examination under Section 311 Cr.P.C. Therefore, with the above modification, the impugned order, so it relates to examination of other persons i.e. except the wife of the deceased, is set aside.