JUDGMENT : 1. Heard Mr. Sachin Joshi, learned counsel for the petitioner and Ms. Shamshi Haider, learned Additional Public Prosecutor for the respondent-State. 2. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned counsel appearing for the parties. 3. By this petition, the petitioner (accused No.1) has challenged order dated 2.5.2017 passed by the Court of Judicial Magistrate First Class, Nagpur, whereby application filed on behalf of the petitioner for recalling witness for further cross-examination was rejected. 4. The petitioner is facing trial for offences punishable under Sections 294, 323 and 506 (B) read with 34 of the Indian Penal Code. It was the case of the petitioner that during cross-examination of the witness for the complainant/prosecution, due to inadvertance certain questions could not be put to the said witness. On this ground an application was moved on 12.01.2017 on behalf of the petitioner before the Magistrate for recalling of the said witness. The relevant portion of the said application stating the ground for moving the said application reads as follows:- “2. The counsel for the accused states that due to inadvertance, certain questions could not be put to the complainant/witness in the cross-examination by the counsel. In Examination-in-chief the complainant/witness has stated that she do not know both the accused. However, the complainant/witness has also stated that the persons who has assaulted her are present before the court today. So, to elucidate from the witness/complainant by Cross examining her further, the accused has filed the present application for Recalling of the witness/Complainant and praying Hon'ble court to Re-call the witness be allowed for just decision of the case.” 5. The said application was opposed by the respondent-State and it was stated that present application was nothing but an attempt to fill in lacuna by the defence, which could not be permitted as the application had been moved after a period of six months of examination and cross-examination of the said witness. 6. The petitioner relied upon judgment of the Hon'ble Supreme Court in the case of Rajendra Prasad vs. Narcotic Cell – (1999) 6 SCC 110 , before the trial Court in support of the said application. But, in the impugned order, the trial Court has recorded that the said judgment was not applicable to the present case. In the said judgment, the Hon'ble Supreme Court has laid down the following position of law:- “8. But, in the impugned order, the trial Court has recorded that the said judgment was not applicable to the present case. In the said judgment, the Hon'ble Supreme Court has laid down the following position of law:- “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.” 7. Following the said enunciation of law, this Court in the case of Wasudeo Gulabrao Dhoke vs. State of Maharashtra – 2017 ALL MR (Cri) 4117 has held as follows:- “10. ….........Even otherwise, there is a difference between what is called as an attempt to fill up the lacuna in the prosecution case and what is called as an attempt to strengthen the defence. While the former, if allowed, may cause prejudice to the accused, the later, if allowed would not cause any prejudice to the prosecution and would only strengthen the right of the accused to fair trial.” 8. The position of law that emerges from the above quoted judgments is that the endeavour of the Court is to arrive at a truthful finding in a criminal prosecution and to ensure that the right of the accused of fair trial is adequately protected. The Hon'ble Supreme Court has clearly indicated that the function of the Court is not to count errors committed by the parties or to find out and declare who among the parties performed better. 9. In the present case, even if it is found that on better cross-examination, all relevant questions could have been put to the witness for prosecution at the time when he was cross-examined, only because the counsel representing the petitioner failed to ask certain relevant question, should not lead to prejudice to the defence. 10. 9. In the present case, even if it is found that on better cross-examination, all relevant questions could have been put to the witness for prosecution at the time when he was cross-examined, only because the counsel representing the petitioner failed to ask certain relevant question, should not lead to prejudice to the defence. 10. In the light of the above, it becomes obvious that the impugned order dated 2.5.2017 passed by the Magistrate is not sustainable. Accordingly, it is set aside. The application filed on behalf of the petitioner before the Magistrate dated 12.01.2017 (Exh.20) is allowed in terms of the prayer made therein. 11. Rule made absolute in the above terms.