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2017 DIGILAW 2183 (RAJ)

Jakir @ Moda v. State of Rajasthan

2017-10-10

PANKAJ BHANDARI

body2017
ORDER : Pankaj Bhandari, J. Petitioner has preferred this revision petition aggrieved by order dated 12.05.2017 passed by Additional District and Sessions Judge No. 2, Nagaur, whereby the Court below has allowed the application filed by respondent No. 2 under Section 311 Cr.P.C., 1973 and has recalled Smt. Baudi for re-examining. 2. It is contended by counsel for the petitioner that the witness cannot be recalled for filling in the lacuna in the prosecution case, Smt. Baudi has given the statement before the Court below and the allegations in the affidavit that her statement was not recorded correctly cannot be taken note of as she is acting as a tool in the hands of the complainant and this is the complainant who has moved the application under Section 311 Cr.P.C., 1973 3. It is also contended that merely because the witness has not been declared hostile and has not been confronted with the statement recorded under Section 161 Cr.P.C., 1973 would not give rise pose for re-summoning the witness. 4. Counsel for the petitioner has placed reliance on "Rajaram Prasad Yadav v. State of Bihar & Anr. In SLP (Crl.) No. 2400/2011 decided by the Apex Court," wherein the Apex Court has held that the powers under Section 311 Cr.P.C., 1973 cannot be dubbed as filling in lacuna in the prosecution case. The power under Section 311 Cr.P.C., 1973 must 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 care, caution and circumspection. 5. Counsel for the complainant has opposed the revision petition. His contention is that in the statement recorded under Section 161 Cr.P.C., 1973 Smt. Baudi has claimed herself as an eyewitness and if she was not giving the statement in accordance with the statement recorded under Section 161 Cr.P.C., 1973 it was the duty of the Public Prosecutor to declare her as a hostile witness and confront her with the statement recorded under Section 161 Cr.P.C., 1973 6. I have considered the contentions. 7. The Court below has allowed the application only on the ground that the witness should have been declared hostile and Public Prosecutor should have confronted her with the statement recorded under Section 161 Cr.P.C., 1973 8. I have considered the contentions. 7. The Court below has allowed the application only on the ground that the witness should have been declared hostile and Public Prosecutor should have confronted her with the statement recorded under Section 161 Cr.P.C., 1973 8. To my mind this cannot be a ground for recalling a witness and putting words in the mouth of the witness which she did not state before the Court below when she was being examined. The affidavit of the witness that she has given evidence similar to the statement recorded under Section 161 Cr.P.C., 1973 cannot be believed as the statement has been recorded by the Additional Sessions Judge. 9. No purpose would be served in now recalling the witness for declaring her as a hostile witness and then confronting her with the statement recorded under Section 161 Cr.P.C., 1973 further the witness cannot be recalled to fill in the lacuna in the prosecution case so as to now implicate the accused petitioner. 10. In view of the above the revision petition deserves to be and is accordingly allowed. The impugned order passed by the Court below is quashed and set-aside. 11. The revision petition is allowed.