JUDGMENT : 1. Rule. Rule is made returnable forthwith. Heard finally by consent of the learned counsel for the parties. Heard Mr. N. T. Gwalbanshi, Advocate for applicants and Mr. M. K. Pathan, A.P.P. for non applicant-State. 2. By the present application, the applicants are challenging the orders dated 07.12.2017 and 05.12.2017 passed by the learned Additional Sessions Judge-9, Nagpur below Exhs.239 and 240 respectively in Sessions Trial No.198/2011 dated 07.12.2017. 3. By order below Exh.239, the learned trial Court rejected the application filed on behalf of the present applicants for issuance of summons to the defence witnesses. By rejecting the application Exh.240, the learned Additional Sessions Judge has refused to accede to the prayer made by the applicants for recalling of prosecution witnesses for further cross-examination. 4. According to the learned counsel for the applicants, both these orders are erroneous. He submitted that the Court below ought to have allowed these two applications. He submitted that for just decision of the sessions trial, consideration of these two applications in favour of the applicants is absolutely necessary. 5. Insofar as the application Exh.240 is concerned, he submitted that the applicants want to recall those prosecution witnesses whose names are mentioned in the application since those prosecution witnesses have not supported the prosecution in another sessions trial. He further submitted that by not allowing the application Exh.239, proper opportunity to the applicants is not afforded by the learned Sessions Court to prove their case. He relied on two decisions in Sudevanand Vs. State, through CBI, reported in 2012 CRI.L.J. 1320 and Wasudeo s/o Gulabrao Dhoke Vs. State of Maharashtra; reported in 2017 ALL MR (Cri) 4117 to substantiate his claim. 6. Per contra, the learned A.P.P. would submit that rejection of the application Exh.240 is absolutely right in view of the decision of the Division Bench of this Court in Mohan @ Mohan Baba s/o Janglu Gedam Vs. State of Maharashtra, reported in 2017 ALL MR (Cri.) 1761. Insofar as application Exh.239 is concerned, Mr. Pathan, learned A.P.P. submitted that the order passed below the same has its own infirmity and therefore this Court should pass appropriate orders. 7. It would be useful to record few facts for deciding the present application. (a) On 27.01.2011 in a ghastly incident at Kamptee, one Chotu Yadav lost his life. The incident was reported by one Abhishek Yadav to Police Station, Kamptee. 7. It would be useful to record few facts for deciding the present application. (a) On 27.01.2011 in a ghastly incident at Kamptee, one Chotu Yadav lost his life. The incident was reported by one Abhishek Yadav to Police Station, Kamptee. Since the said was disclosing commission of a cognizable offence, Police Station Officer, Kamptee registered the said FIR vide Crime No.20/2011 under the relevant provisions of the Indian Penal Code. (b) The investigating officer completed the entire investigation. Needless to mention that 9 persons were rounded during the course of investigation. The investigator filed the final report against 9 accused persons whereas against one Sandeep Damghaye, charge sheet was filed under Section 299 of Code of Criminal Procedure since the said accused was absconding. The present applicants were shown as accused nos.2 and 3 in the final report submitted by the investigating officer in respect of Crime No.20/2011. (c) Since the offence was exclusively triable by the Court of Sessions, the learned Magistrate in whose Court the final report was presented passed the order of committal and committed the case to the Court of Sessions. After the committal, the case was registered as Sessions Trial No.198/2011 and was allotted to the file of Additional Sessions Judge13, Nagpur. (d) Accused nos. 1 to 9 including the present applicants were charged by the learned trial Court for committing the offence. The charge was explained to them. They abjured their guilt and claimed for their trial. Needless to mention here that since the charge sheet against Sandeep was filed under Section 299 of the Cr.P.C., his trial was separated. (e) In order to bring home the guilt of the accused persons who were charged in Sessions Trial No.198/2011, the prosecution examined in all 20 witnesses. (f) After prosecution evidence was over, accused nos. 1 to 9 including the present applicants were examined by the learned trial Court under Section 313 of the Cr.P.C. (g) On 25.07.2013, accused nos. 1 to 9 were convicted by the learned trial Court for the offence punishable under Section 147, 148, 302 read with Section 149 of the IPC and Sections 4 and 25 of the Arms Act. The jail sentence for life was awarded against the accused nos.1 to 9 including the present applicants. 1 to 9 were convicted by the learned trial Court for the offence punishable under Section 147, 148, 302 read with Section 149 of the IPC and Sections 4 and 25 of the Arms Act. The jail sentence for life was awarded against the accused nos.1 to 9 including the present applicants. Since the accused no.10Sandeep was absconding, the trial Court directed the investigating machinery to file supplementary charge sheet against him after he being traced out. (h) After the judgment and order of conviction dated 25.07.2013 against accused nos.1 to 9, the absconding accused no.10 Sandeep alias Banti was apprehended on 09.10.2013. Separate charge sheet was filed against him and his case was also committed to the Court of Sessions and the said trial was registered as Sessions Trial No.484/2013. He also abjured his guilt and claimed for his trial. In order to bring home the guilt of Sandeep, the prosecution has examined in all 12 witnesses. (i) On 16.12.2016, the learned trial Court also convicted Sandeep alias Banti and awarded jail imprisonment for life. (j) All 10 convicted accused filed six separate appeals before this Court. Those were registered as Criminal Appeal No.439/2013, 442/2013, 483/2013, 502/2013, 453/2014 and 475/2016. (k) All these appeals were taken up for final hearing before the Division Bench of this Court (Coram: B. R. Gavai and I. K. Jain, JJ.). These six appeals were decided and disposed of by judgment dated 23.03.2017 in Wasudeo s/o Gulabrao Dhoke Vs. State of Maharashtra; reported in 2017 All MR (Cri) 1761. It will be necessary to reproduce paragraph 19 of the judgment delivered by Division Bench and it is reproduced as under: “19. In the above premise, we are of the view that accused are not entitled to acquittal on the ground of noncompliance with the mandatory provisions of Section 313 of Cr.P.C. We agree to some extent that appellants are prejudiced on account of a joint questionnaire put to each of them just by copy paste. The trial court should have been more careful in framing the questions considering the incriminating circumstances brought on record against each of the accused. The trial court should have been more careful in framing the questions considering the incriminating circumstances brought on record against each of the accused. Since the Trial court has failed in it's imperative duty, we find it fit to direct the retrial from the stage of recording statements of the accused under Section 313 of Cr.P.C. and proceed to pass the following order : (i) Conviction of appellants under Sections 147 r/w 149, 148 r/w 149 and 302 r/w 149 of the Indian Penal Code and Sections 4 r/w 25 of the Indian Arms Act and sentenced imposed on them is set aside. (ii) Matters are remanded back to the trial Court for proceeding afresh from the stage of recording statements of the accused under Section 313 of the Code of Criminal Procedure. (iii) The Trial court shall examine each of the accused afresh under Section 313 of the Code of Criminal Procedure in the light of the above observations and in accordance with the law. (iv) The Trial court is directed to put specific, distinct and separate questions with regard to incriminating circumstance appearing against each of the accused. (v) Appellants are in jail since 2012. Hence, Trial court to expedite the matter and dispose of the same in accordance with the law preferably within a period of six months from the date of receipt of copy of this judgment. (vi) We make it clear that we have not expressed any opinion on merits of the matters. (vii) Criminal Appeals are disposed of in the above terms.” 8. Thus, from the aforesaid, it is clear that the conviction awarded against the said accused persons including the present applicants was set aside and the matter was remanded back to the trial Court for decision afresh from the stage of recording of statement of accused under Section 313 of the Cr.P.C. The trial Court was directed to examine each of the accused afresh in the light of the observations made in the judgment of the Division Bench. It was directed to the trial Court that the trial Court shall put specific, distinct and separate questions with regard to incriminating circumstances appearing against each of the accused persons. While disposing of those six criminal appeals, it was made clear by the Division Bench that the Court has not expressed any opinion on merits of the matter. 9. It was directed to the trial Court that the trial Court shall put specific, distinct and separate questions with regard to incriminating circumstances appearing against each of the accused persons. While disposing of those six criminal appeals, it was made clear by the Division Bench that the Court has not expressed any opinion on merits of the matter. 9. Thus, after remand, Sessions Trial No.198/2011 was taken up by the Additional Sessions Judge-9, Nagpur. In view of the directions given by the Division Bench in Mohan @ Mohan Baba's case, each of the accused was examined by the trial Court under Section 313 of the Cr.P.C. including the present applicant. 10. It is not the claim of the present applicant that their statements under Section 313 Cr.P.C. were not recorded in accordance with law in defiance of the directions given by this Court in Mohan @ Mohan Baba's case cited supra. After recording of their statements under Section 313 Cr.P.C. the present applicants filed three different applications viz; (I) Exh.239, an application for issuance of summons to the defence witnesses namely; (a) Sevak Gaurishankar Meshram, (b) Shobha w/o Santosh Sanpate and (c) Vandana w/o Sewak Meshram as their defence witnesses. (II) Exh.240, an application under Section 311 Cr.P.C. for recalling of the witnesses for their further cross-examination. The witnesses sought to be recalled were; (a) Vishal Waman Shambharkar (PW5), (b) Kishor Ganpat Chankapure (PW8) and (c) Radheshyam Maniklal Pandey (PW13) (III) Exh.241, an application for issuance of summons to Golu Yadav as defence witness of the applicants. 11. All these applications were contested by the learned A.P.P. who is in-charge of Sessions Trial No.198/2011. Exh.240 was decided by the learned trial Court on 05.12.2017 and the said application was rejected. Exh.241 was decided on 06.12.2017 and the said application was allowed Exh.239 was decided on 07.12.2017 and it was rejected. Thus the applicants being aggrieved by the rejection of Exhs.239 and 240 are before this Court by invoking jurisdiction of this Court under Section 482 as well as Section 397 of the Cr.P.C. 12. There cannot be any dispute in respect of the principles laid down in Sudevanand Vs. State, through CBI, cited supra. Thus the applicants being aggrieved by the rejection of Exhs.239 and 240 are before this Court by invoking jurisdiction of this Court under Section 482 as well as Section 397 of the Cr.P.C. 12. There cannot be any dispute in respect of the principles laid down in Sudevanand Vs. State, through CBI, cited supra. Counsel for the applicant, though placed reliance on this decision to buttress his submission, in my view, it is of little use to him inasmuch as that though powers of the Court under Section 311 of the Cr. P. C. are vast, at the same time those powers have to be exercised by the Court below by applying the principles enunciated in Sudevanand Vs. State, through CBI, cited supra to the given set of facts. 13. As observed above, after remand from this Court, the statements of the applicants are duly recorded by the learned Sessions Court under Section 313 of the Code of Criminal Procedure. Also, it is not the grievance of the applicants that the learned Sessions Judge has faulted with the direction given by the Division Bench at the time of recording of their statements under Section 313 of Cr.P.C. afresh after the remand. 14. Insofar as Exh.240 is concerned, according to the applicants, Vishal (PW5), Kishore (PW8) and Radheshyam (PW13) when were examined in Sessions Trial No.198/2011, they fully supported the prosecution case. However, they did not support the prosecution in Sessions Trial No.484/2013. According to the applicant, Vishal (PW5) and Kishore (PW8) did not support the prosecution at all in Sessions Trial No.484/2013 whereas Radheshyam (PW13) partly supported the prosecution. In view of this position, it is the statement of the learned counsel for the applicants that these three witnesses needs to be recalled for their fresh cross-examination in Sessions Trial No.198/2011, which the applicants are facing. 15. Vishal (PW5), Kishore (PW8) and Radheshyam (PW13) were examined by the prosecution in Sessions Trial No.198/2011. They fully supported the prosecution case in respect of the murderous assault in which Chotu Yadav lost his life on 27.02.2011. The opportunity was granted to the defence namely; the present applicants, to cross-examine these three prosecution witnesses. They were thoroughly cross-examined by the defence. It is not the case of the applicants that the opportunity was not given to them for cross-examining these three persons. The opportunity was granted to the defence namely; the present applicants, to cross-examine these three prosecution witnesses. They were thoroughly cross-examined by the defence. It is not the case of the applicants that the opportunity was not given to them for cross-examining these three persons. It is also not the case of the present applicants that something was remained to be done when they were cross-examined due to inadvertence. It is the submission of counsel for the applicants that the applicants want to cross-examine these three witnesses afresh because they changed their version in subsequent Sessions Trial No.484/2013 and for that they want that the Court should recall them. 16. After remand, both Sessions Trial Nos.198/2011 and 484/2013 are now being taken up by Additional Sessions Judge-9, Nagpur. The evidence of these three prosecution witnesses in both the sessions trials are available with the learned Sessions Judge. 17. In my view, recalling of these three witnesses is not at all essential only because they are changing their versions. As per the decision in Mohan @ Mohan Baba's case cited supra, the conviction and sentence imposed upon the present applicants is already set aside by this Court meaning thereby the Court has appreciated the available evidence as brought on record by the prosecution afresh. While disposing of Mohan @ Mohan Baba's case, it is specifically observed that the Division Bench of this Court has not expressed anything on merit of the case. Thus, the Additional Sessions Judge has to appreciate the available evidence of the prosecution in these trials. 18. The trial Court will have to apply its mind independently and afresh while evaluating the entire prosecution case including the evidence of Vishal (PW1), Kishore (PW8) and Radheshyam (PW13). While evaluating their evidence, the learned trial Court has to see what weightage should be given to the evidence of these three persons. Therefore, in my view, recalling of these three witnesses is not at all necessary. Criminal Appeals of the present applicants were remanded back from the stage of recoding of the statements under Section 313 of the Cr.P.C. If the application Exh.240 is considered favourably then it would result into reopening of the prosecution case though in part in respect of the examination of those three witnesses and for that the matter was not remanded. Criminal Appeals of the present applicants were remanded back from the stage of recoding of the statements under Section 313 of the Cr.P.C. If the application Exh.240 is considered favourably then it would result into reopening of the prosecution case though in part in respect of the examination of those three witnesses and for that the matter was not remanded. Therefore, in my view, the application Exh.240 for recalling of these three witnesses was rightly rejected by the learned Judge of the trial Court. 19. Insofar as Exh.239 is concerned, by this application the applicants prayed before the Court after recording of their statements under Section 313 of the Cr.P.C. that the persons whose names are mentioned in the application Exh.239 be called as their defence witness and the said application is rejected by the learned Judge on 07.12.2017. 20. The learned counsel for the applicants invited my attention to the order passed by the very same Judge below Exh.241 by which the Court below allowed the application to examine one Golu Yadav as the defence witness. He submitted that there is no rationale for allowing one application filed by the applicants and rejecting another application for the very same purpose. 21. The persons whose names are mentioned in Exh.239 and 241 were interrogated by the investigating officer during the course of investigation. Their statements under Section 161 of the Cr.P.C. were also recorded. Their statements are part and parcel of the final report. The application Exh.239 is rejected by the learned Judge of the Court below only on the ground that on earlier occasion these persons were not examined. 22. The examination of defence witness comes into picture only after the prosecution completes its evidence and the statements of the accused persons are recorded under Section 313 of the Cr.P.C. Prior to that, there is no stage of examining any person as a defence witness. 23. Since the case was remanded back from the stage of recording of statements under Section 313 of the Cr.P.C. and the statements of accused persons including the applicants are recorded by the learned Judge of the trial Court, the reasoning as put forth by learned Judge of trial Court that on earlier occasion these persons were not examined as defence witness, in my view, is totally misconceived and cannot stand to scrutiny of law. 24. 24. Further, it is always open for the accused persons to call those persons whose statements were recorded during trial and though they were cited as witnesses by the prosecution but ultimately the prosecution gave up those witnesses. If a person was cited as prosecution witness and he was not examined as such, it was always open for the defence to move an application to examine that person as his defence witness and the application if it is moved has to be considered by the Court below on its own merit. However, in the present case, what is observed is that merely because on earlier occasion when the opportunity was there, they were not examined and therefore they are not entitled to be called as defence witness, in my view, is totally erroneous inasmuch as after recording of their statements under Section 313 of the Cr.P.C. when the incriminating evidence is brought to the notice of the present applicants, according to the applicants their defence may get probabilized after examining them as their defence witnesses. This aspect is not at all considered by the learned trial Court. Further, the very same Court allowed Exh.241 on earlier day and granted permission to the applicants to examine Golu Yadav as defence witness. 25. In view of the discussion in the preceding paragraphs, I am of the view that the Court below has committed mistake in rejecting the application Exh.239. The conspectus of the aforesaid discussion leads me to pass the following order. ORDER (i) Criminal Application No.882/2017 is partly allowed. (ii) Order dated 05.12.2017 below Exh.240 in Sessions Trial No.198/2011 is hereby upheld. (iii) Order dated 07.12.2017 passed below Exh.239 in Sessions Trial No.198/2011 is hereby quashed and set aside. (iv) The trial Court is directed to issue summons to (i) Shobha w/o Santosh Santape and (ii) Vandana w/o Sewak Meshram and the applicants are permitted to examine these two witnesses as their defence witnesses. Rule is made absolute in the above terms.