MANJU DEVI v. STATE OF RAJASTHAN & Anr.

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, 69 A B C D E F G H 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 of his statement, the trial court could have unquestionably taken recourse to the provisions of Sections 284 and 285 CrPC so as to avoid the delay in the matter and inconvenience to the parties and the witness. On the question of inconvenience likely to be caused in the event of summoning of the said witness from Nigeria, noticeable it is that the appellant made a prayer that the doctor concerned being not available in the country, the order may be passed for taking his evidence by issuing commission under Sections 284 and 285 CrPC. In the instant case too, where the witness Dr. Y is residing in Nigeria, in order to avoid inconvenience to the witness as also to the parties, issuing of commission and recording his evidence through video- conferencing appears to be a viable alternative; and the trial court need to take all the requisite steps so as to ensure that his evidence comes on record with least inconvenience and/or burden to the parties and the witness. [Paras 13, 13.1, 13.3][77-E-F; 78-G-H; 79-A; 80-E-F] State of Maharashtra v. Dr. Praful B. Desai (2003) 4 SCC 601 : [2003] 3 SCR 244 – referred to.

1.6 The trial court disposed of the application under Section 311 CrPC on entirely irrelevant considerations and the High Court also failed to exercise its jurisdiction under Section 482 CrPC while overlooking and ignoring the material and relevant aspects of the case. The impugned orders are set aside and the application moved in this matter under Section 311 CrPC is allowed. The trial court shall now take all the necessary measures for ensuring the examination of the witness concerned by issuing commission and/or recording his statement through video-conferencing and shall also ensure expeditious proceedings so as to conclude the matter at the earliest. [Para 14, 16][80-F-H; 81-B] Mohanlal Shamji Soni v. Union of India 1991 Supp (1) SCC 271 : [1991] 1 SCR 712 ; Zahira Habibulla H. Sheikh v. State of Gujarat (2004) 4 SCC 158 : [2004] 3 70 A B C D E F G H MANJU DEVI v. STATE OF RAJASTHAN & ANR.