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2000 DIGILAW 636 (AP)

T. v. S. R. K. PRASAD VS State Of A. P.

2000-08-21

VAMAN RAO

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VAMAN RAO, J. ( 1 ) THIS petition is directed against the orders dated 27-7-2000 passed by the learned Assistant Sessions Judge, madanapalle, in Cr. MP No. 84 of 2000 in sc No. 371 of 1997. ( 2 ) HEARD both sides. ( 3 ) THE petitioners herein is an accused in the said Sessions Case facing a charge under Section 304-B, of Indian Penal Code. It appears that among other things the prosecution seeks to rely on the dying declaration of the deceased said to have been recorded by the IV Additional District munsif, Chittoor while the deceased was undergoing treatment in the hospital. The said dying declaration is said to have been marked as Ex. P9 during the examination of the Investigating Officer-PW10. It appears that the prosecution did not choose to examine the Magistrate who had recorded the dying declaration and prosecution seems to have closed their evidence. Thereafter, the said application in Crl. MP No. 84 of 2000 has been filed by the accused for summoning the Magistrate who recorded the dying declaration and the Doctor who certified about the condition of the deceased as Court witnesses. The impugned order passed by the learned Assistant Sessions judge would show that he has declined to summon these witnesses as Court witnesses on the ground that the document in question viz. , dying declaration was already marked and that there was no need for calling these witnesses in proof of the said document. It is difficult to appreciate the view taken by the learned assistant Sessions Judge. Mere marking of a document during the examination of the Police Officer does not amount to proof of that document. The dying declaration obviously is a vital document having considerable bearing on the question involved viz. , the guilt or innocence of the accused. ( 4 ) UNDER these circumstances, on behalf of the prosecution these witnesses ought to have been summoned as witnesses. The prosecution having ommitted to do so, when the accused brought this omission to the notice of the Court, the Court should have summoned these witnesses as Court witnesses. ( 5 ) UNDER these circumstances, the order or the learned Sessions Judge in crl. MP No. 84 of 2000 in SC No. 371 is set aside. The prosecution having ommitted to do so, when the accused brought this omission to the notice of the Court, the Court should have summoned these witnesses as Court witnesses. ( 5 ) UNDER these circumstances, the order or the learned Sessions Judge in crl. MP No. 84 of 2000 in SC No. 371 is set aside. It is directed that these witnesses v/z. ,the Judicial Magistrate of First Class who recorded the dying declaration and the Doctor who certified about the state of health of the deceased shall be summoned as Court witnesses. ( 6 ) ACCORDINGLY, the criminal petition is allowed.