TMI Blog2023 (8) TMI 1447X X X X Extracts X X X X X X X X Extracts X X X X ..... n and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the matter. The aid of Section 311 Cr.P.C. should be invoked with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case, and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. It is trite that due care should be taken by the Court while exercising power under the section, and it should not be used for filling up the lacuna by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence or the accused or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as riding the two-wheeler on which accused No. 1 was riding pillion. 4. PW1 is the defacto complainant. She is the only occurrence witness. The prosecution examined PWs 1 to 15 and proved Exts.P1 to P27. 5. The learned Assistant Public Prosecutor, thereafter, filed an application under Section 311 of Cr.P.C to recall PW1, stating the reason that she omitted to identify accused No. 2. The learned Assistant Public Prosecutor asserted that there was no evidence to identify accused No. 2 and identification of the accused is very much essential for the just decision of the case. 6. The petitioner challenged the application contending, that while examining PW1, the learned Public Prosecutor had specifically asked about the identity of accused No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2022 at 5 a.m. It is alleged that accused No. 1, in this case, snatched away the gold chain that belonged to PW1, and at the relevant time, he was riding pillion on a motorbike ridden by the petitioner. 13. PW1 is the only witness to the incident proper. At the time of her examination, the learned Assistant Public Prosecutor asked her whether she could identify the accused. On the date of her examination, the petitioner and accused No. 1 were in the box. The witness identified accused No. 1 alone. Even though a specific question was put to the witness regarding the identification of the accused, she failed to identify accused No. 2. 14. Can the prosecution be permitted to summon PW1 specifically to identify accused No. 2? If the witness is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de discretionary power upon the Court in this respect is to be exercised judicially and not arbitrarily. The Court shall suggest, by itself that it was in fact, essential to examine a witness or to recall him for further examination in order to arrive at a just decision on the case. The provision is to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts. The Section essentially is intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity insofar as the evidence is concerned as also to ensure that no prejudice is caused to anyone. [Vide: Mohanlal Shamji Soni v. Union of India (1991 Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest of the accused. 20. This Court had an opportunity to consider a similar situation in K.V.Vijyadas v. State of Kerala . In Vijyadas (Supra) this Court was considering a situation where evidence was reopened to recall a witness to identify the accused in Court. This Court held that serious prejudice would be caused to the accused by recalling a witness for the purpose of identification alone as it would lead to making up the inherent weakness of the case and unfair advantage to the prosecution. 21. Another aspect that requires consideration is the delay in filing the application seeking recall of the witness. The application under Section 311 of Cr.P.C was filed at the very fag end of the trial. The prosecution had enough opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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