MANJU DEVI versus STATE OF RAJASTHAN & ANR.

Citation: [2019] 6 S.C.R. 68 · Decided: 16-04-2019 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 6 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 6 S.C.R.
MANJU DEVI
v.
STATE OF RAJASTHAN & ANR.
(Criminal Appeal No. 688 of 2019)
APRIL 16, 2019
[ABHAY MANOHAR SAPRE AND
DINESH MAHESHWARI, JJ.]
Code of Criminal Procedure, 1973: s. 311 – Power to summon
material witness, or examine person present – On facts, accused
facing trial for offences u/ss. 302, 304B and 498A IPC due to death
of his wife under unnatural circumstances in Nigeria – First post
mortem of the victim carried out by the doctor in Nigeria –
Application u/s. 311 by mother of the victim seeking summoning of
the said doctor through High Commission of Nigeria or to record
his evidence through video conferencing after issuing a commission
for the purpose – Rejected by trial court as also High Court – On
appeal, held: Testimony of the Nigerian doctor who conducted the
first post-mortem in Nigeria is germane to the questions involved in
this matter; and for a just decision of the case with adequate
opportunity to both the parties to put forward their case, the
application u/s. 311 allowed – Length/duration of a case cannot
displace the basic requirement of ensuring the just decision after
taking all the necessary and material evidence on record – Trial
court to take all the necessary measures for ensuring the examination
of the witness concerned by issuing commission and/or recording
his statement through video-conferencing.
Allowing the appeal, the Court
HELD: 1.1 The discretionary powers like those under
Section 311 of the Code of Criminal Procedure, 1973 are
essentially intended to ensure that every necessary and
appropriate measure is taken by the Court to keep the record
straight and to clear any ambiguity in so far as the evidence is
concerned as also to ensure that no prejudice is caused to anyone.
[Para 9.1][76-F]
   [2019] 6 S.C.R. 68
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1.2 The copy of the post-mortem report prepared by the
doctor in Nigeria has, been placed on record wherein, the cause
of death is stated as “asphyxia secondary to strangulation”. Though
the dead-body of the daughter of appellant was brought to India
on 29.01.2010 and Medical Board was constituted for conducting
the post-mortem but then, the Board found that no definite opinion
could be given regarding the time and cause of death. The
investigating agency, for the reasons best known to it, did not
cite the said doctor, who conducted the first post-mortem in
Nigeria as a witness. It is also not the case on behalf of the accused
that the copy of the post-mortem report dated 16.01.2010
prepared in Nigeria was not disputed and/or he would not be
seeking to cross-examine the said doctor, if he is examined as a
witness in this matter. In the given set of facts and circumstances,
it is evident that the testimony of the said doctor who conducted
the first post-mortem in Nigeria is germane to the questions
involved in this matter; and for a just decision of the case with
adequate opportunity to both the parties to put forward their case,
the application under Section 311 CrPC ought to have been
allowed.  [Para 10][76-E-H; 77-A]
1.3 The peculiar facts and circumstances of the case have
either been ignored or have been cursorily dealt by the trial court
with the observations that the effect of non-availability of the
original post-mortem report would be considered at the time of
the final disposal of the matter. In fact, the principal reason
weighing with the trial court in declining the prayer for
examination of the said witness had been that the case was pending
since the year 2010. The High Court, on the other hand, chose
not to exercise its powers under Section 482 CrPC, with the only
observation that the discretion so exercised by the trial court
was not to be interfered with. [Para 11][77-B-C]
1.4 Though it is expected that the trial of a sessions case
should proceed with reasonable expedition and pendency of such
a matter for about 8-9 years is not desirable but then, the length/
duration of a case cannot displace the basic requirement of
ensuring the just decision after taking all the necessary and
material evidence on record. In other words, the age of a case,
MANJU DEVI v. STATE OF RAJASTHAN & ANR.
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SUPREME COURT REPORTS
[2019] 6 S.C.R.
by itself, cannot be decisive of the matter when a prayer is made
for examination of a material witness. [Para 12][77-D]
1.5 In the given set of facts and circumstances, where the
witness Dr. Y is residing in Nigeria, for the purpose of recording
o

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