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2023 DIGILAW 42 (ALL)

Suman v. State of U. P.

2023-01-05

UMESH CHANDRA SHARMA

body2023
JUDGMENT : [Umesh Chandra Sharma, J.] 1. This criminal revision has been instituted by the revisionist to set aside the order dated 31st May, 2022 passed by A.S.J-VI, Mathura in S.T. No. 433 of 2012 (Smt. Suman Vs. Krishna Murari & Ors.) under Sections 323, 325, 504, 506 I.P.C. Police Station Vrindaban, District Mathura, by which the Trial Court has rejected the application 136-B by the informant under Section 311 Cr.P.C. 2. In brief facts of the case are that the aforementioned Sessions Trial is pending in the Court of A.S.J-VI, Mathura, in which the informant moved an application 136-B that injured Rajan Lal was examined on 03rd July, 2009 in Swarna Jayanti Community Hospital. Medical report 4-A/17 is on record, he was examined by Dr. Ajai Gopal, during the medical examination Mild Subarachnoid Hemorrhage was found on the head and he was carried out in unconscious position/stage to the hospital therefore the statement of concerned doctor is necessary. Hence, Dr. Ajai Gopal be summoned as witness. The concerned I.O. has not arrayed him as witness, therefore Dr. Ajai Gopal be summoned under Section 311 Cr.P.C. 3. Learned counsel for the accused had vehemently opposed the application and had stated that this file is under Section 313 Cr.P.C on 01.01.2014 and is being delayed intentionally. The injury of Rajan Lal is simple in nature and the statement of Dr. Ajai Gopal has not been recorded by the concerned I.O. under Section 161 Cr.P.C. 4. By the impugned order, the learned trial court has rejected the application on the ground that the injuries alleged to be caused to the injured are said to be simple in nature. The learned A.D.G.C has objected the summoning of the said witness in such a situation when the statement of the victim has been made and the trial relates to Sections 323, 325, 504, 506 I.P.C, therefore calling or not calling of the aforesaid doctor would have not special effect on the prosecution. It is also clarified that this sessions trial is connected with another cross case, which is under the action plan laid down by the Hon'ble High Court, which has to be decided expeditiously, therefore, the application is not maintainable and is liable to be rejected. 5. It is also clarified that this sessions trial is connected with another cross case, which is under the action plan laid down by the Hon'ble High Court, which has to be decided expeditiously, therefore, the application is not maintainable and is liable to be rejected. 5. It has also been concluded by the trial court that the application under Section 311 Cr.P.C has been opposed by the learned ADGC (Criminal) what evidence the prosecution wants to present in the court, it is the responsibility of the prosecution. It is not necessary that if the investigator has not taken the statement under Section 161 Cr.P.C, a person cannot be summoned but in this case, the prosecution itself is opposing it. The advocate appointed by the informant can assist the prosecution, but they can not act as prosecution officer. The learned trial court has referred the judgment Rekha Murakka Vs. State of West Bengal & Ors. J.T 2019 (11) S.C 291, in which it has been held that the learned counsel for the victim//informant plays only a secondary role in advancing the prosecution case. 6. Being aggrieved the revisionist has filed the present revision. 7. In the application, the applicant has taken ground that the impugned order has been passed without application of mind by wrongly interpreting the judgement of Rekha Murakka (supra) and thus rejected the legal and genuine claim of the revisionist. 8. Dr. Ajai Gopal is the sole witness, who has medically examined the injured Rajan Lal on 03rd July, 2009 in Swarna Jayanti Community Hospital and has given opinion in which he has contended that the injury cannot be seen due to plaster and referred the injured to District Hospital, Mathura for x-ray about the opinion regarding injury no. 1. In this incident, Rajan and Sunder Lal, two persons had sustained grievous injury and both were examined by Dr. Ajai Gopal, therefore his deposition is more important for conclusion of the case. 9. Since, the learned trial court is also adjudicating the cross version, therefore, it is duty of the trial court to scrutinize the injuries thoroughly, but the trial court adopting the process in harried manner only on the ground that it is cross case and referring the High Court action plan, rejected the claim of the revisionist in violation of statutory provisions under the garb of action plan. The impugned order is wholly illegal and arbitrary and against the principles of natural justice, hence the revision be allowed and the order dated 31st may, 2022 be set aside. 10. Heard Sri Pankaj Kumar Shukla, learned counsel for the revisionist, Sri Pankaj Kumar Tripathi, learned A.G.A for the State and perused the material available on record. 11. The injury reports have been filed through annexure no. 2, which are said to be prepared after medical examination by Dr. Ajai Gopal. As per the injury report the victim Rajan Lal has sustained three injuries, he could not see injury no. 1 properly as there was plaster of paris thereon, hence he referred the patient to District Hospital, Mathura for expert opinion. He found that injury no. 2 is simple in nature caused by hard and blunt object. Injury no. 3 was the stitched wound. At page no. 28 there is a copy of x-ray report form. At page 30 there is photocopy of the injury report of Sundar Lal, he has sustained two injuries, out of which injury no. 1 was kept under observation and it was referred for x-ray and expert opinion. At page 30, there is x-ray form regarding the injured Sundar Lal. 12. This court is of the view that it was the duty of I.O. to record the statement of the concerned Doctor and array his name in the column of witness in the charge-sheet. If it has not been done, it is not a fault of the informant/revisionist, if Dr. Ajay Gopal is not examined, the injury reports prepared by him would not be proved and would not be admissible in evidence. If no objection has been raised on the said injury report, it may be exhibited but it is not liable to be exhibited under Section 293 Cr.P.C. Therefore, it was the duty of the trial court to summon the witness Dr. Ajay Gopal suo-moto. He was also under the obligation to record a finding that it is fault on the part of I.O that he did not record the statement of Dr. Ajay Gopal and has not copied the injury reports in case diary. 13. Ajay Gopal suo-moto. He was also under the obligation to record a finding that it is fault on the part of I.O that he did not record the statement of Dr. Ajay Gopal and has not copied the injury reports in case diary. 13. The judge of a criminal court is not a silent spectator, it is his duty to be vigilant and conscious and if there is apprehension of injustice during the course of trial, it is his duty to be vigilant. The charge-sheet is not the borderline, which cannot it cross by the trail court, it is not a Holy Bible, Quran or Gita or any other mandatory enactment, which must be obeyed in every event, if the learned trial court finds that the injured were medically examined by Dr. Ajay Gopal and he has prepared the injury report, it was the duty of the trial court to summon him instead of fact that his statement was not recorded by the I.O and he was not arrayed in the list of witnesses in charge-sheet. 14. Section 311 Cr.P.C provided wide power to the court to summon the material witness, which is as under:- "Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or. recall and re-examine any person already examined; and the Court shall summon 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 case." 15. The second part of Section 482 Cr.P.C is mandatory and it casts duty on the court to summon, examine or call or re-examine any such persons, if his evidence appears to be essential to the just decision of the case. 16. This court is of the view that the evidence of Dr. Ajay Gopal in the aforesaid circumstances is very much essential for the just decision of the case otherwise the prosecution would be deprived of its valuable right. There might be direction under the action plan to decide the case as early as possible, but solely on this reason either of the parties cannot be deprived of his valuable legal right and a trial cannot be finished in illegal and hurried manner. There might be direction under the action plan to decide the case as early as possible, but solely on this reason either of the parties cannot be deprived of his valuable legal right and a trial cannot be finished in illegal and hurried manner. If Dr. Ajay Gopal is not examined certainly the injury reports would be of no avail and inadmissible in evidence. 17. It has not been said by the learned trial court that the accused persons have admitted the genuineness of the injury reports or they have dispensed with the formed proof of the injury reports, it appears that till now the injury reports has not been proved in due course of law, therefore, it was the bounden duty of ADGC (Crl.) and the concerned court not to oppose such necessary application, if was duty of A.D.G.C (Crl.) to move an application to summon Dr. Ajay Gopal as a witness and if this duty was omitted by him, it was the duty of the trial court to summon the concerned doctor for proving the medical report. 18. In Mohan Lal Shamji Soni Vs. Union of India A.I.R 1991 S.C. 1346, it is held that Section 311 is enacted which enables the Court to find out the truth and render a justice decision where-under any court by exercise of it's discretionary authority at any stage of inquiry, trial or other proceedings can summon any person as witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person already examined, who are able to through light upon the matter in dispute . 19. Opportunity to rebuttal would be provided to the other party. 20. In this case on the basis of above decision and provision following ingredience are found which are as under:- 1. To summon any person as a witness, Or 2. To examine any person in attendance, though not summoned as witness or to re-call, re-examine any person, who already examined. 21. The second part which is mandatory imposes obligation on the Court : To summon and examine or to recall, re-examine any such person, if his evidence appears to be essential to the just decision of the case. This Section is in two parts and wide discretion has been given to the Court to exercise it's jurisdiction at any stage or any inquiry or trial in the proceedings. This Section is in two parts and wide discretion has been given to the Court to exercise it's jurisdiction at any stage or any inquiry or trial in the proceedings. 22. Any person and any such person can be summoned as witness, which shows that there is not limit in exercising the discretion of the court in any way. 23. In R.B. Mithani Vs. State of Maharashtra A.I.R 1971 S.C -1630, it is held that additional evidence must be necessary, not because it would be ample to pronounce judgment, but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable case. Once such action is justified there is no restriction in the kind of evidence, which must be received. It may be formal or substantial. 24. In Rama Paswan Vs. State of Jharkhand 2007 Cr.L.J 2750, the Apex Court held that the determine factor is whether summoning or re-calling of the witness is essential to the just decision of the case. The Section is not limited only for the benefit of the accused and it will not be improper of the power of the Court, to summon a witness under the Section merely because the evidence supports the case of the prosecution and not that of the accused. The Section is a general Section which apply to all proceedings, inquiries and trials under the court and empowers the Magistrate to issue summon to any witnesses at any stage of such proceedings, trial or inquiry. 25. In Raku Manjal Vs. State of Jharkhand 2006 Cr.L.J 293, the case was pending for the last 25 years and the prosecution evidence had already been closed. The I.O. and the Doctor, who had performed postmortem examination, were summoned under Section 311Cr.P.C. as their examination was found necessary for the justice decision of the case. 26. In Raj Deo Sharma Vs. State of Bihar, A.I.R 1999 Supreme Court 3524, it is held that once it is found that the evidence is essential for the just decision of the case, the witness can be recalled at any time before pronouncement of the judgment, the time factor would not come for the way. It is not a case where if Dr. Ajay Gopal is summoned it would be an attempt to fill up the lacuna in the prosecution case as the injury report has been prepared by him. It is not a case where if Dr. Ajay Gopal is summoned it would be an attempt to fill up the lacuna in the prosecution case as the injury report has been prepared by him. It would also not cause prejudice to the accused as he would have an opportunity to cross examine the witness. 27. In Shailendra Kumar Vs. State of Bihar, A.I.R 2002 (Supreme Court) 270, it is held that if there is any negligence, latches or mistake by not examining material witness, the Courts function to render just decision by examining such witness at any stage is not, in any way impaired. 28. In Govind Ram Vs. State of U.P. 1999 Cr.L.J 1955 (Allahabad), it is held that the court had a duty to see that the witnesses are examined for just decision of the case and the court has to call and examine a witness as court witness even if the prosecution does not produce him would be fine that the evidence of the witnesses had an important bearing on the case. 29. In Ramasami Vs. Sriniwasan 1987 (3) Crimes 89 Madras, it is held that the criminal court is not just umpire to deal only the material brought by the parties before it. The court has to play an active role in the administration of criminal jurisprudence. Though, it is not normal duty of the court to collect evidence, in cases where justice requires, the Court has power to further inquire into the matter in order to ascertain the truth. 30. In Bhima Mudali and Ors. Vs. State of Orissa & Anr.1996 Cr.L.J. 1899 Orrisa, In Chemo Steel Limited Vs. State of Andhra Pradesh 2005 Cr.L.J 716 and in Om Prakash Vs. State of Rajasthan 2003 Cr.L.J 4704, it is held that a person not examined under Section 161 Cr.P.C. can also be summoned as witness under Section 311. 31. In view of the above, this Court is of the considered view that the impugned order is perverse and bad in law and is liable to be quashed and the revision is liable to be allowed. ORDER This criminal revision is allowed and the impugned order dated dated 31.05.2022, passed by Additional District Judge-VI, Mathura in S.T. No. 433 of 2012 -(Smt. Suman Vs. Krishna Murari & Ors), under Sections 323, 325, 504 and 506 I.P.C, Police Station Vrindavan, District Mathura, is hereby quashed. ORDER This criminal revision is allowed and the impugned order dated dated 31.05.2022, passed by Additional District Judge-VI, Mathura in S.T. No. 433 of 2012 -(Smt. Suman Vs. Krishna Murari & Ors), under Sections 323, 325, 504 and 506 I.P.C, Police Station Vrindavan, District Mathura, is hereby quashed. The learned court is directed to summon Dr. Ajay Gopal, to prove the medical reports. This order be sent to the trial court ASJ-VI, Mathura, forthwith for immediate and strict compliance.