Suman Shyam DECISION
Suman Shyam, J.
1. Heard Mr. M. Sarania, learned counsel appearing for the petitioners. I have also heard Mr. P.P. Baruah, learned Public Prosecutor, Assam, appearing for the respondent/State.
2. This Criminal Petition has been preferred against the order dated 07.06.2019 passed by the learned Sessions Judge, Nagaon in Sessions (T-l) Case No. 53(N)/2018 by means of which the learned trial court had allowed the petition filed by the prosecution side under Section 311 Cr.P.C. with a prayer to recall a witness.
3. The entire controversy in this case revolves around the prayer to re-examine the witness Numal Basumatary i.e. the PW-17. As per the statements recorded under Section 164 Cr.P.C. the PW-17 is an eye-witness to the incident. The prosecution side had examined the witness on 30.04.2019 whereafter, he witness was cross-examined and thereafter, discharged by the court. PW-17 was the last witness examined on that day. However, immediately after the conclusion of the days' proceeding, the prosecution side had filed petition bearing No. 1155/2019 under Section 311 Cr.P.C. with a prayer to recall PW-17 and to permit his cross-examination by the prosecution side. The application was premised on the ground that the PW-17 did not support the prosecution case and on the contrary, during his examination-in-chief and cross-examination, the witness had resiled from his statement recorded under section 164 Cr.P.C. The petitioners, who are the accused in Sessions (T-1) Case No. 53(N)/2018 registered under sections 302/341/427/143/144/147/148/149/109/332/186 of the IPC had objected to the prayer for recall of PW-17. However, by the impugned order dated 07.06.2019, the learned Sessions Judge has allowed the prayer made on behalf of the State.
4. Mr. Sarania, learned counsel for the petitioners, has assailed the impugned order primarily on two counts. Firstly, that no proper reason has been recorded by the learned trial court before allowing the prayer for recall of the witness in exercise of powers under section 311 Cr.P.C. Secondly, the prosecution side having failed to make a prayer under Section 154 Cr.P.C. before the witnesses (PW-17) was discharged after his cross-examination, such a prayer cannot be granted at this point of time since allowing the prayer would amount to permitting the prosecution side to cure the lacuna in their evidence.
5. By placing reliance on a decision of the Hon'ble Supreme Court rendered in the case of State of Haryana vs. Ram Mehar & others reported in MANU/SC/0938/2016 : (2016) 8 SCC 762 Mr. Sarania submits that under section