Andhra HC (Pre-Telangana)
Palacharla Rama Rao vs The State Of A.P. Rep. By Its P.P. on 11 December, 2001
Equivalent citations: 2002(1)ALT(CRI)200, 2002CRILJ4189
ORDER V. Eswaraiah, J.
1. This Criminal Petition is filed under Section 482 Cr.P.C to quash the order dated 27-11-2001 in S.C. No. 251 of 2001 on the file of the District and Sessions Judge, East Godawari District.
2. The petitioner is accused No. 1 in S.C. No. 251 of 2001. The petitioner along with 3 others are being prosecuted for the offence under Section 307 I.P.C read with Section 34 I.P.C. The learned District and Sessions Judge by order dated 27-11-2001 made the following order:
" A-1 - A-4 called. Present. Suo-motto re-opened and I shall take the X-rays and evidence of radiologist will be useful in deciding the case. Issue summons to the radiologist for giving evidence and for filing X-rays. The prosecution to furnish the name and address particulars. Call on11-12-2001."
3. The docket proceedings of the Court below shows that the prosecution evidence is closed on 23-11-2001 and the accused were examined on 2-11-2001 under Section 313 of the Cr.P.C and posted the case for arguments on 9-11-2001 which under went adjournments on 9-11-2001, 13-11-2001 and on 16-11-2001it was adjourned to 23-11-2001. On 23-11-2001 arguments were heard and the matter was posted to 27-11-2001 for judgment. On 27-11-2001 the aforesaid order has been passed stating that X-rays and evidence of radiologist will be useful in deciding the case and accordingly directed to issue summons to the radiologist for giving the evidence and for filing X-rays. Questioning the said order, this Criminal Petition is filed.
4. The brief facts of the prosecution case is that A-1 and LW-3 are the own brothers and they have got lands at Rapaka village and in respect of water canal dispute the accused attacked LWs. 1 to 4 on 15-8-2000 and accordingly a crime was registered and after investigation the chargesheet is filed. Against A-1 to A-4 offence under Section 307 read with Section 34 I.P.C is registered. 17 witnesses are cited on behalf of the prosecution. Witness No. 12 - Dr. K. Nagesh, Medical Officer, Govt. H.Q. Hospital, Rajahmundry was cited to speak out about his treatment to LWs. 1 to 4 and issuance of wound certificates. The said Doctor deposed in the chief examination that he examined LW-4 and found incised injury measuring 4 "x1/4" x bone deep on the sagital suture of the wault of the skull between both paretal bones. He referred the injured for radiological examination. The Radiological opinion was that there was a depressed fracture of left partial region. He opined that the injury sustained by P. Venkateshwara Rao-LW-4 was grievous in nature. He also examined P. Venkat Rao-LW-3 and stated that the Radiologist opined on the basis of X-ray taken that P. Venkat Rao-LW-3 sustained a fracture of right second metacarpal bone. He opined that the 3rd injury referred above sustained by LW-3 is grievous in nature. Similarly he examined two other injured persons and in the cross-examination he has stated that he had given his opinion on the basis of his examination and on the opinion given by the Radiologist with regard to the nature of the injuries. He further stated that he did not have the opinions given by the Radiologist and the Radiologist would have the opinions with him. The wound certificates Ex.P-12 to P-15 are the extracts from the accident register.
5. The learned counsel appearing for the petitioner submits that during the course of arguments on 23-11-2001 the defence counsel argued regarding the reliability of medical evidence i.e., evidence of the Doctor and substantial lacunae were pointed out in his evidence and on that pointing out of the lacunae the learned District Judge suo-motu reopened the case and issued summons to the Radiologist for giving evidence and producing the X-rays by proceedings dated 27-11-2001 instead of pronouncing the judgment. He also submits that the entire record of the investigation and the evidence of the prosecution does not disclose about the Radiologist and his name and the order of the court below in reopening the case calling for X-rays and Radiologist evidence, after hearing the arguments of the defence counsel would amount to filling up of substantial lacunae in the prosecution which causes prejudice to the defence of the accused giving unfair advantage to the prosecution and if the additional evidence of the Radiologist is taken and X-rays are received, it will amount to filling up of lacunae by conducting a retrial and therefore the impugned order is liable to be set aside. It is further stated that the order of the trial Court does not disclose any reason whatsoever which is the precondition as to why the Radioligist and X-rays are being summoned.
6. In the light of the above circumstances, the question that arise for consideration is whether the said proceedings dated 27-11-2001 issuing summons to Radioligist for giving his evidence and producing X-rays is in conformity with Section 311 of the Cr.P.C or not. Section 311 of the Cr.P.C reads as follows:
311. 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.
7. As per the aforesaid Section, it is not in dispute that the Court's ample suo-motu powers would summon any person as a witness or examine any person in attendance though not summoned as a witness. The Court has got powers to summon any person if his evidence appears to it to be essential to the just decision of the case. The summons can be issued either suo-motu by the Court or on an application filed either by the prosecution or by the defence to summon any witness, examine any witness in attendance though not summoned as a witness or recall or re-examine any person already summoned. As per the 2nd part of Section 311 the Court shall summon and examine or recall or re-examine any such person if his evidence appears to it to be essential for the just decision of the case. No doubt, the prosecution has not stated the radiologist as one of its witnesses, but prosecution has cited the Doctor who examined the injured persons and treated them and issued wound certificates. Whenever a person is sustained injuries and treated in a hospital several tests will be conducted such as X-ray, Urine, Blood and C.T Scan and all such examinations conducted in respect of a patient are expected to be tagged with the case sheet of the respective patient. The Doctor who was supposed to bring all the information like X-ray reports, opinions of radiologist etc before the Court had not brought the same and as per the accident register he deposed and stated that he do not have the opinion of the Radiologist and the X-ray reports. The prosecution has cited the Doctor and it is not that the prosecution should cite all the concerned persons who have taken X-rays, gave opinion and conducted the other tests. In view of the aforesaid background of the case, the learned Judge though it fit to summon the Radiologist for the purpose of giving his evidence and filing theX-rays.
8. The learned counsel appearing for the petitioner relied on the following decisions: In re K.V.R.S. Mani ,Abdul Munim Khan Vs. State of Hyderabad AIR 1953 Hyderabad 145 , In Lassi Dar Vs. State of Jammu and Kashmir, 1986 Criminal Law Journal 762, Udaya Gowri Vs. A.P. Rao , Mohanlal Shamji Soni Vs. Union of India .
9. In re K.V.S.S. Mani (1) Supra the learned Single Judge of Madras High Court held that as per Section 540 presently Section 311 of the Code of Criminal Procedure the Court enjoins the powers to call a witness for evidence if it is essential for the just decision of a case, but when the prosecution knowing full well and being in possession of all the materials which can be spoken to by a particular witness and intending to call him as a witness and intimating to the Court at one stage that it intends to call him as a witness fails to do so, the Court cannot exercise its powers to call such a person as a witness and the exercise of power of the Court in such circumstances will be only amount to filling up of gap in the prosecution case. In the instant case, the prosecution has not filed an application to summon the Radiologist, but the Court suo-motu exercised its powers under Section 311 and directed to issue summons. It cannot be said that the prosecution having fully aware of the facts about the opinion of the Radiologist and X-rays had failed to cite the Radiologist as a prosecution witness. As the prosecution cited the Doctor who treated the injured persons and issued wound certificates, the Doctor is supposed to speak all the facts relating to the said injuries, but unfortunately the said Doctor has not taken all the relevant records and therefore it cannot be said that summoning of Radiologist to examine him and to file X-rays is filling up of gap in the prosecution case.
10. In Abdul Munim Khan (2) Supra the decision is also to the effect that the negligence on the part of the prosecution case can never be a ground for taking additional evidence against the accused by allowing such additional evidence, but it will not be desirable to allow the prosecution to patch up the evidence. In this case also, the prosecution filed an application, but the High Court held that the application for adducing additional evidence cannot be granted to patch up the evidence by the prosecution. This case also has no application to the facts of the present case for the reason that the evidence expected to have been adduced by the Doctor was not adduced and therefore the Court thought it fit to summon the Radiologist to adduce evidence and to produce the X-ray reports.
11. In Lassi Dar (3) Supra it was held that Undoubtedly, the scope of Section 540 Cr.P.C presently Section 311 Cr.P.C is wide but it cannot at the same time denied that the powers under this provision cannot be exercised to the disadvantage of the accused especially when the trial has been concluded and the case has been fixed for announcing the judgment. In the said case also the prosecution filed an application to summon the additional witness when the arguments were heard and the case was fixed for judgment and in those circumstances the order of the Sessions Judge was held as not justified in summoning the additional evidence. Here is the case where the witness was summoned by the Court itself suo-motu, but not on an application filed by the prosecution.
12. In the case of Udaya Gowri (4) Supra it was held that the order of a trial Judge mere recalling the PW witnesses without giving any reasons is unjustified and the same was set aside. But, whereas in the instant case, the learned Judge made the order stating that he shall take X-rays and evidence of Radiologist which will be useful in deciding the case and the reason has been given for calling the X-rays and the Radiologist which will be useful for deciding the case. Therefore it cannot be said that no reason has been given by the learned Judge while issuing the summons to the witness.
13. In Mohanlal Shamji Soni (5) Supra the Apex Court held at Paragraph 18 as follows:
"The next important question is whether Section 540 gives the Court carte-blanche drawing no underlying principle in the exercise of the extraordinary power and whether the said Section is unguided, uncontrolled and uncannalised. Though section 540 (Section 311 of the new Code), is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the Court should be exercised, or with regard to the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the Court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only 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. Further it is incumbent that due care should be taken by the Court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or to cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either or the parties."
14. In the instant case the learned Judge in exercise of his powers under II Part of Section 311 summoned the Radiologist for giving his evidence and for submitting the X-ray reports which is normally expected to contain in the case sheet of the injured persons to come on record in the evidence of the Doctor who treated the injured persons and issuance of summons by the learned Judge exercising powers pursuant to the II Part of the said Section cannot be said that he has exceeded his jurisdiction under Section 311 of the Criminal Procedure Code.
15. In Raj Deo Sharma (II) Vs. State of Bihar the three Judge judgment of the Hon'ble Supreme Court held that the power of the Court as envisaged under Section 311 of the Code of Criminal procedure has not been curtailed by the Supreme Court. Neither in the decision of the five-judge Bench in A.R. Antulay case nor in Kartar Singh case, 1994 (3) SCC 569, such power has been restricted for achieving speedy trial. In other words, even if the prosecution evidence is closed in compliance with the directions contained in the main judgment it is still open to the prosecution to invoke the powers of the court under Section 311 Cr.P.C. Therefore, their Lordships have made it clear that if evidence of any witness appears to the Court to be essential to the just decision of the case, it is the duty of the Court to summon and examine or recall and re-examine any such persons. In the circumstances, the learned Sessions Judge thought it fit that the evidence of the Radiologist and X-rays are essential to the just decision of the case and therefore the learned Judge Summoned to examine the Radiologist and for filing of the X-rays. In the light of the aforesaid 3 judge latest Judgment of the Hon'ble Supreme Court, it cannot be held that the learned Judge as exceeded the power under the 2nd Part of Section 311 of the Code of Criminal Procedure.
16. The learned Public Prosecutor appearing for the State submits that even on the evidence available on record it is enough to come to a conclusion, but the learned Judge himself thought it fit to come to a just decision and therefore ordered to issue summons to consider the record of the Radiologist and the X-rays.
17. In the case of Rajendra Prasad Vs. Narcotic Cell the Supreme Court explained the meaning of Lacunae in a prosecution case. In that case the defence evidence was closed on 19-9-1997 and on the application of the prosecution two witnesses were re-summoned on 7-3-1998 who were already summoned and once again the prosecution case was closed and posted for hearing and arguments and again on 7-6-1998 the Public Prosecutor moved an application seeking permission to examine two other persons. Though, the application was opposed by the accused counsel, the trial Court allowed it in exercise of its power under Section 311 of the Code and the said order was confirmed by the High Court in a revision which order was carried to the Hon'ble Supreme Court and the Hon'ble Supreme Court also confirmed the order of the learned trial Judge explaining the meaning of lacunae in the prosecution case as follows "The lacunae in the prosecution case is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage "to err is human" is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna, which a court cannot fill up. The lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better".
18. In the instant case also non-summoning of the Radiologist for production of his information and the X-rays cannot be said that it is a lacuna on the part of the prosecution as the prosecution has summoned the concerned Doctor who has treated the injured persons and gave the wound certificates is expected to produce all the relevant information/reports in respect of the said treatment of the injured persons. Therefore, the learned Judge thought it fit to examine the Radiologist and for production of X-rays to come to a just decision and summoned the Doctor to adduce evidence and produce the X-ray reports and therefore it cannot be said that summoning of the Radiologist for giving his evidence and producing the X-rays is a lacuna sought to be filled by the prosecution.
19. For all the reasons and in view of the afore said latest decision of the Hon'ble Supreme Court in Rajendra Prasad Supra (7 ) explaining the meaning of lacuna in the prosecution, the cases cited by the learned counsel appearing for the petitioner which are the cases dealt on an application filed by the prosecution to fill up the lacuna, have no application to the facts of the case as here is the case where the proper evidence was not adduced and the relevant material was not brought on record by the concerned Doctor examined by the prosecution.
20. For all the aforesaid reasons, I therefore do not see any merits in the Criminal Petition. The petition is accordingly dismissed.