Manju Devi v. State Of Rajasthan And Another

Order 02/08/2018 This criminal misc. petition under Section 482 Cr.P.C. has been filed on behalf of the petitioner being aggrieved with the order dated 31st May, 2018 whereby the Additional Sessions Judge Ratangarh, District Churu (for short the trial court) has rejected the application filed by the petitioner under Section 311 Cr.P.C., whereby she prayed for summoning Dr. I Yusuf from Nigeria or to record his evidence through video conference. Brief facts of the case are that the respondent No.2 is facing trial for the offence punishable under Sections 302 and 304B I.P.C. in the court of Additional Sessions Judge, Ratangarh, District Churu as he allegedly committed murder of his wife- daughter of the petitioner. The petitioner had moved an application under Section

311 Cr.P.C. with a prayer that Dr. I Yusuf, who conducted the post (2 of 3) [CRLMP-2282/2018] mortem of the deceased at Nigeria, be summoned for examination as he is one of the material witnesses in the case because he had conducted post mortem of the body of the deceased. The court below has rejected the said application while observing that photo copy of the post moretm report prepared at Nigeria is available on record and in the facts and circumstances of the case, the trial court observed that it is not necessary to summon Dr. I Yusuf for examination for just decision of the case. Learned counsel for the petitioner has submitted that as the first post mortem of the deceased was conducted at Nigeria by Dr. I Yusuf, therefore, he is a material witness in the case and the prosecution has illegally not arraigned him as prosecution witness, therefore, the application moved by the petitioner for summoning Dr. I Yusuf from Nigeria as prosecution witness deserves to be allowed. Learned counsel for the petitioner has placed reliance upon the decision of Honble Supreme Court rendered in Mina Lalita Baruwa Vs. State of Orissa reported in (2013) 16 SCC

173 and argued that the Honble Supreme Court has held in the above referred case that the Court cannot remain a mute spectator and while dealing with a litigation it should maintain a belligerent approach instead of a wooden one. Learned counsel has, therefore, prayed that the impugned order may be set aside and the application filed by the petitioner under Section 311 Cr.P.C. for summoning Dr. I Yusuf as prosecution witness may be allowed. Per contra, learned Public Prosecutor has opposed the petition. (3 of 3) [CRLMP-2282/2018] Having heard learned counsel for the parties and having gone through the impugned order, this Court is of the opinion that if the trial court does not think it essential to summon Dr. I Yusuf from Nigeria as prosecution witness for just decision of the case, after taking into consideration the overall facts and circumstances of the case, the discretion exercised by it is not liable to be interfered with lightly, therefore, I do not find any illegality in the impugned order. So far as the decision rendered in Mina Lalita Baruwa (supra) by the Honble Supreme Court is concerned, there is no quarrel about the proposition of law laid down by the Honble Supreme Court, however, in view of the facts and circumstances of the present case, the above referred decision is of no help to the petitioner. The criminal misc. petition is, therefore, dismissed. The stay petition is also dismissed. (VIJAY BISHNOI),J Babulal/s/109 Powered by TCPDF (www.tcpdf.org)