Oral Judgment: 1. Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel for the parties. 2. Respondents are accused facing prosecution under Sections 302, 120-B read with Section 34 of the Indian Penal Code and under Sections 3 and 25 of the Arms Act. The present Writ Petition has been filed by the State, as application Exh.312, filed by the State in the Sessions Case No.44/2011 before Additional Sessions Judge, Ahmednagar to recall P.W.14 Kisan Abaji Shelke was rejected by order dated 6.12.2013, The witness was examined by the prosecutor on 1.10.2013 and in the course of the evidence, the witness was declared hostile and was cross-examined by the State. On 1.10.2013, the cross-examination was deferred due to grant of application Exh.281. On next date of 9.10.2013, for some of the accused the Court ordered No Cross and rest declined cross-examination. By another application filed by the accused, vide Exh.310, recalling of same witness was allowed by the Sessions Court for cross-examination of the witness while the application Exh. 312 was rejected of the State. Thus, the State is before this Court. 3. Perused the petition as well as affidavit-in-reply filed by Atish Mohan Bhalsing, respondent No.12 for self and other respondents. Heard learned A.P.P. as well as counsel for respondent Nos.1, 2 and 5 to 14. 4. The learned A.P.P. has submitted that, in this matter the date of incident is 13.11.2010. On that day, complainant P.W.14 Kisan Abaji Shelke was going on scooter which was being driven by victim Prakash Kandekar who was Deputy Sarpanch. They were proceeding from side of Rakshe Petrol Pump to Narayangavhan. At such time, on the way, two persons came near them driving a Pulser motorcycle and the rider asked as to what was the distance to Shirdi. To answer, the deceased slowed down his scooter, but at that time, the pillion rider on the motorcycle fired towards the head of Prakash Kandekar, who fell down. According to the learned A.P.P., the driver of the motorcycle was accused No.5 Ajit Jagdish Nayar, while the pillion rider, who had fired from pistol at the deceased, was accused No.6 Richard. 5. Learned A.P.P. referred to the evidence of witness to show that the witness who was complainant, had in the F.I.R. itself given details which showed that he could identify the accused and which description matched with accused Nos.5 and 6. 5. Learned A.P.P. referred to the evidence of witness to show that the witness who was complainant, had in the F.I.R. itself given details which showed that he could identify the accused and which description matched with accused Nos.5 and 6. According to learned A.P.P., even if in the test identification parade, the witness had correctly identified accused No.5 Ajit as well as accused No.6 Richard. Learned A.P.P. submitted that, at the time of evidence, however, the witness got confused and wrongly Ajay Jagdish Nayar was identified, who is real brother of accused No.5 Ajit Jagdish Nayar. According to learned A.P.P., the evidence itself shows that the witness was frightened at the time of his evidence and got confused. According to learned A.P.P., when the application of the accused persons was being allowed to recall the witness for cross-examination, there was no reason why the application of the State was declined to further record evidence of the same witness. The learned A.P.P. submitted that, State wanted to clarify the confusion in identification. 6. Learned A.P.P. relied on the case of Premkumar Surajmal Chandak Vs. Kishor Kanhayyalal Toshniwal, reported in 2014(2) Mh.L.J. 87. It was submitted that, in that judgment, this Court has observed that when cross-examination has yet to start, if the witness was recalled, it cannot be said that there would be any prejudice. Reliance is also placed on the case of Himanshu Singh Sabharwal Vs. State of M.P. & ors. reported in AIR 2008 SC 1943 , where, in para 12, it was observed as under: "12. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty stage-managed, tailored and partisan trial." 7. Learned counsel for respondents has strongly opposed the petition. It has been submitted that, the effort is to fill up the loop holes. Reference was made to the evidence of the same witness regarding the identification of accused done by the witness. Learned counsel for respondents has strongly opposed the petition. It has been submitted that, the effort is to fill up the loop holes. Reference was made to the evidence of the same witness regarding the identification of accused done by the witness. According to learned counsel, now if the application to recall of witness is allowed, the witness would be alert and thus prejudice would be caused to the accused persons. According to learned counsel, the order passed by the trial Court is judicious order. Counsel referred to the observations of the trial Court and the trial Court found that the evidence was clear and there is no ambiguity. Learned counsel relied on the following rulings:- (1) Pannayar Vs. State of Tamil Nadu by Inspector of Police, reported in AIR 2010 SC 85 (2) Rajendra Prasad Vs. Narcotic Cell through its Officer in Charge, Delhi, reported in AIR 1999 SC 2292 (3) U.T. of Dadra & Haveli & anr. Vs. Fatehsinh Mohansinh Chauhan reported in 2006 (2) Bom.C.R. (Cri.) 613 (4) Mangesh Kisanrao Dahe Vs. State of Maharashtra & anr. reported in 2012 (2) Bom.C.R. (Cri.) 114 (5) Fatehsinh Mohansinh Chauhan Vs. Union Territory of Dadra & Haveli, Silvassa, Dadra & Nagar Haveli & anr. reported in 2005(1) Bom. C.R. (Cri.) 892. (6) Gurumeet Surjitsingh Asla Vs. Renusingh Jogisingh & anr. reported in 2008(2) Bom.C.R. (Cri.) 924 8. It was submitted that the rulings show that Section 311 of Cr.P.C. cannot be used to fill in lacunae in the case of prosecution; that admissions elicited in a cross-examination cannot be allowed to be rendered futile in re-examination; that, re-examination should not be done so as to introduce new points and to fill up lacuna in the case of prosecution. Learned counsel referred to paras 6 and 7 of the judgment in the matter of "Rajendra Prasad" (supra), which read as under: "6. 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. 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 human 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. 7. 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 fore-closed 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." 9. Relying on these paragraphs, the learned counsel submitted that, trial Court found that it was not the contention that while putting up Question and calling accused to stand, prosecutor committed mistake. Thus, the powers under Section 311 of the Code of Criminal Procedure cannot be used so as to fill up lacuna in prosecution. 10. I have gone through the evidence of P.W.14 Kisan Abaji Shelke. Para 7 and 8 of his evidence reads as under: "7. After about one month of the incident, I was called at Tahasil Office, Parner for test identification parade. On my reaching to the Tahasil Office, Parner, initially I was made sit in one room. Thereafter, I was called to the place where 10-12 persons were present. After proceeding to that place I was asked whether I can identify persons on the motorcycle and in response to that I identified rider and pillion rider of the motorcycle by touching to their body with finger. They are present in the Court today. He by showing finger pointed accused No.9 Janardhan @ Fanty @ Vinay Mhaske and accused No. 6 Richard Thomas Daniyal. Que. They are present in the Court today. He by showing finger pointed accused No.9 Janardhan @ Fanty @ Vinay Mhaske and accused No. 6 Richard Thomas Daniyal. Que. Can you identify Ajay Jagdish Nayar? Ans. Yes. I can. Then witness went near the accused's box and pointed out accused No.10 Vinod Prakash Bhalerao. (At this stage, learned A.P.P. sought permission to declare the witness hostile and cross-examine the witness. Accordingly, permission granted to cross-exam the witness.) Cross-exam. by Mr. S.K. Patil, Public Prosecutor 8. It is true that I had seen the accused No.7 Ajay Jagdish Nayar twice. Firstly at the time of incident and secondly at the time of test identification parade. However, today I could not identify him in the Court as I was afraid of. But after seeing the accused No.7 Ajay Jagdish Nayar to whom Public Prosecutor called upon to stand up, I identified him. I know accused Nos.1 and 2 Rajaram and Rahul. Today they are present in the Court." Keeping in view the case of the prosecution that accused No.5 Ajit Jagdish Nayar was driving the motorcycle, and accused No.6 Richard fired from pistol, if above para 7 of the evidence of the witness is perused, the witness deposed regarding the incident and showed that he could identify the rider and pillion rider of the motorcycle. The witness then pointed out accused No.9 Janardhan which was wrong, but also pointed accused No.6 Richard which was correct. Then the prosecutor put question "Can you identify Jagdish Nayar?". Keeping in view the prosecution case, there was no context at that stage for the prosecutor to enquire about Ajay Jagdish Nayar and then suggest that the complainant had seen accused No.7 Ajay Jagdish Nayar twice (which he admitted) firstly at the time of incident and secondly at the test identification parade. It appears that, due to similarity of names, by oversight while eliciting answers, instead of asking regarding Ajit Jagdish Nayar, the prosecutor asked regarding Ajay Jagdish Nayar and this appears to have lead to further confusion. Although while filing application Exh.312 the State appears to have stated that the witness got puzzled, simple reading of the evidence shows that the Prosecutor, in context of prosecution case, by oversight referred to accused No.7 Ajay instead of accused No.5 Ajit in the heat of the moment. Although while filing application Exh.312 the State appears to have stated that the witness got puzzled, simple reading of the evidence shows that the Prosecutor, in context of prosecution case, by oversight referred to accused No.7 Ajay instead of accused No.5 Ajit in the heat of the moment. Keeping this in view, and considering observations of the Hon'ble Supreme Court in para Nos.7 and 8 of the judgment in the case of "Rajendra Prasad" referred above, I find that the cause of justice cannot be allowed to suffer for the confusion. The witness was deposing almost by end of 3 years. The witness was clearly under pressure as he deposed that he could not identify the person in Court as he was frightened. When the witness was under pressure and the prosecutor also committed error due to oversight, which is human, the cause of justice cannot be allowed to suffer. I find that there was no justification to refuse to recall the witness as sought by the prosecution. Impugned order shows observation of the trial Court in para 7 of order that: "It is not the contention of prosecution that while putting question mentioned in para 7 and calling upon concerned accused to stand up mentioned in para No. 8, prosecutor committed mistake". Thus, it is apparent that Trial Court knew about the error, but only because the prosecution did not boldly stand up to own the error, Trial Court has preferred to close its eyes to obvious confusion on record. It has simply recorded that as Prosecutor asked Accused No.7 to stand up and asked witness to identify, there was no puzzling or misunderstanding for the witness. It was duty of the Court to appreciate the evidence which was recorded before it and to make an effort to arrive at just decision so that truth prevails and the prosecution as well as accused both get justice. The cross-examination is yet to start and the accused are not likely to suffer if the prosecution gets chance to further cross-examine the witness. Whatever further happens in the trial would be matter of record open for interpretation or defence before any Court. But to block evidence from coming in would not be justified. 11. For reasons mentioned above, the Criminal Writ Petition is allowed. Whatever further happens in the trial would be matter of record open for interpretation or defence before any Court. But to block evidence from coming in would not be justified. 11. For reasons mentioned above, the Criminal Writ Petition is allowed. The order dated 6.12.2013, passed by learned District Judge-1 and Additional Sessions Judge, Ahmednagar below Exhibit 312 in Sessions Case No.44/2011 is quashed and set aside. The application Exhibit 312 is allowed. Rule made absolute. Criminal Writ Petition stands disposed of accordingly. 12. Learned counsel for respondents at this stage makes request to stay the effect and operation of this order. I find no justification for the request. The request is rejected. Authenticated copy permitted to counsel for respondents.