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Madhya Pradesh High Court · body

2012 DIGILAW 298 (MP)

Achal Sepaha v. State of M. P.

2012-03-14

SHUBHADA R.WAGHMARE

body2012
JUDGMENT : Bythis petition under Section 397 of the Cr.PC , thepetitioner Dr. Achal Sepaha has challenged the order dated 29-3-2011 passed by the IXth ASJ, Indore , in Criminal Appeal No.250/2010 dismissing the application filed by the petitioner under Section 391 ofthe Cr.PC for taking additional evidence on record. 2.The brief facts of the case in a nutshell are that the petitioner had filed anappeal against his conviction for offence under Section 304-A of the IPC, theTrial Court had convicted him and sentenced him to 3 months' RI and fine of Rs . 1000/-. The appeal was filed before the Sessions Judge, Indore and it came up about that during the course ofthe appeal; Counsel for the petitioner submitted that Dr. D.S. Badkur (P.W. 4) had been examined as an expert witness inthe case, certain documents though introduced at the trial stage were notproved and exhibited and this vitally affected the defence of the petitioner. Counsel submitted that the petitioner is a Consultant Nephrologist at the Choithram Hospital and Research Centre, Indore and had secured a degree in the MBBS in the year 1975 from MGM Medical College at Indore .Besides doing Post Graduates Course at Bombay University he had also takenexperience in the United Kingdom as well as United States of America and was specialised in kidney transplant and was theConsultant Nephrologist at the Choithram Hospital and Research Centre at the relevant time. Whereas the complainant husband'of the deceased Mr. Jagat Narayan Chaube had filed afalse and frivolous case against the petitioner and the learned Trial Court hadrelied on the testimony of Dr. D.S. Badkur (P.W. 4),before whom the entire documents regarding the medicaltreatment of the patient Mrs. Vimla Chaube were placed. On cross-examination he had deposedbefore the Court only relying on the 39 pages provided by the police. Counselvehemently urged that the patient suffered from multiple ailments like diabetesDiabetic Nephropathy, Hypertension, Chronic-Renal Failure, Pleural Effusion andPoor Cardiac Status. Similarly, if the Nurses Daily Record, intake outputchart, medication sheets, temperature chart and peritoneal dialysis sheet,which were not proved and marked as exhibits would have been considered. Andthen doctor could have been cross-examined on these documents specifically toappreciate the fact that the patient was already a terminal case and there hadbeen no negligence on the part of the petitioner accused. Similarly, if the Nurses Daily Record, intake outputchart, medication sheets, temperature chart and peritoneal dialysis sheet,which were not proved and marked as exhibits would have been considered. Andthen doctor could have been cross-examined on these documents specifically toappreciate the fact that the patient was already a terminal case and there hadbeen no negligence on the part of the petitioner accused. 3.Similarly, Counsel stated that certain proceedings before the National ConsumerDisputes Redressal Commission at Delhi for referenceletter dated 11-8-96 from the Dr. D.K. Agarwal (P.W.7) of Mayo Hospital at Bhopal was filed by the complainant himself. This letterclearly reveals that the complainant had made incorrect and false statementregarding the condition of the deceased/patient when she was first brought tothe Choithram Hospital . The letter indicates that the petitioner had already been referred to Chcnnai for a kidney transplant before she was admitted to Choithram Hospital for the first time. And thereby indicating that the deceasedwas brought to the accused petitioner only for the purpose of tissue matchingwhen the complainant's intention was to take her to Chennai for kidneytransplant. This important document (letter dated 11-8-96 ) came into the hands of the petitioner inthe closing stages of the trial and therefore, it could not be exhibited. 4.Counsel, therefore, vehemently urged that all these documents were of vitalimportance to the defence of the accused andtherefore, he had made an application under Section 391 of the Cr.PC whereas the learned Judge of the Appellate Court hasinterpreted this application to be dilatory tactics by the petitioner. However,these documents were essential and therefore the application under Section 391ought to be allowed. Counsel relied on two judgments by our own High Court inthe matter of jaggnath and others Vs. State throughP.S. Hilpank , in Cri.A . No. 441/95 and Abid and others Vs. Stateof M.P., Criminal Appeal No. 210/09, whereby this Court had considering thenature of the relief and the aims and objectives of this Court regardingadditional evidence at late stage had also placed reliance on Ratilal lihanji Vs. State of Maharashtra and others. AIR 1971 SC 1630 , held thatwhen for just decision of the case and for digging out of truth regarding theadditional evidence is essential, then the application ought to be allowed andthe imperative questions could be asked of the relevant witness. State of Maharashtra and others. AIR 1971 SC 1630 , held thatwhen for just decision of the case and for digging out of truth regarding theadditional evidence is essential, then the application ought to be allowed andthe imperative questions could be asked of the relevant witness. Counsel prayedthat the benefit be granted in the present case also and prayed for settingaside the impugned order and directions for allowing the evidence to be taken. 5.Counsel for the respondent/State, per contra, has stated that there was noinfirmity in the order passed by the Appellate Court, the specific finding ofthe Trial Court are based on application of mind judiciously; so also theAppellate Court according to the Counsel has considered the fact that it is notthe case of the petitioner that the witness Dr. D.S. Badkur has not been examined at all; in fact, the medical documents were examined indetail and the Counsel for the accused has cross-examined him in detail. Theother documents before the Consumer Forum were not at all relevant in the trialand hence were clear object of prolonging the trial. The incident is of theyear 1996 and it was apparent that lacunae in the trial cannot be now filled atthe appellate stage. Counsel prayed for dismissal of the petition. 6.On considering the above submissions, I find that undoubtedly a long time haselapsed since the date of the incident, the trial as well as the appeal.However, delay should not defeat justice. Dr. Sepaha the accused petitioner as an eminent Surgeon and fair trial to each person isguaranteed by our Constitution. Besides considering the Supreme Court dictatein the matter of Ratilal Bhanji (supra), I find that the Court has observed that this Court in the case ofconviction, can direct for taking additional evidence in the interest ofjustice and fair play rather than take a different view of the oral evidenceand when such a document and recording of additional evidence of witness Dr. Badkur (P.W. 4) is essential for digging out the truth thenone chance ought to be given to the petitioner accused. However, consideringthat the complainant has also suffered long trial, it is directed that cost of Rs . 5.000/- shall be paid to the complainant Jagat Narayan Ctiaube by the accused within a period of 15 days from the date of this order, subjectto which it is directed as follows :- Theimpugned order is hereby set aside. However, consideringthat the complainant has also suffered long trial, it is directed that cost of Rs . 5.000/- shall be paid to the complainant Jagat Narayan Ctiaube by the accused within a period of 15 days from the date of this order, subjectto which it is directed as follows :- Theimpugned order is hereby set aside. Without taking any observation on themerits of the case it is directed that the petitioner shall be given a singleopportunity to examine Dr. Badkur and adduceadditional evidence regarding the documents mentioned in the application andletter dated 11-8-96 on thesame date. Withthese aforesaid directions, the petition is allowed to the extent herein aboveindicated.