High Court · 2025

3. It has been submitted by learned counsel for revisionist that the revisionist is an accused in Case Crime No. 156 of 2019, under Sections 323, 504 and 307 IPC and Section 7 of the Criminal Law Amendment Act, 1932.

4. The brief facts as submitted by learned counsel for revisionist is that the allegation against the revisionist pertaining to the fact that according to the complainant his cousin brother Vishnu Goswami and Mahesh were standing at the shop of Tiwari Ke Dahibade situated at Gonda-Faizabad Raod, in the meantime, accused persons Tufail, Imram, Master alias Ramzan and Nizamuddin came and started abusing the brother of the complainant and when they opposed the said abusing language then petrol was poured over them, which was taken out from a Tanker bearing Vehicle No. UP32 HN 7406 standing near there and Vishnu Goswami was lit on fire, due to which the brothers started burning and people standing nearby tried to douse the flames. It is due to the aforesaid acts Vishnu Goswami got severe burn injuries and was admitted to the District Hospital Gonda for treatment but looking to his burns, he was referred to Lucknow where he succumbed to the injuries.

5. It has been submitted by learned counsel for revisionist that after the said incident, when Vishnu Goswami was admitted to the Civil Hospital, Gonda the certificate of fitness was given by Dr. Laxmi Kant Goswami and dying declaration was recorded by learned Magistrate in his presence. During trial, Dr. Laxmi Kant Goswami was produced as one of the prosecution witnesses, who narrated the entire incident with regard to the deceased being admitted and statements being recorded by the learned Magistrate and on 14.05.2019, he was also cross- examined by learned counsel for accused.

6. After his cross examination an application under Section 243 Cr.P.C. was given seeking to summon the Bed Head Ticket, inasmuch as that learned counsel for accused wanted to contest the statement of Dr. Laxmi Kant Goswami and especially wanted to being on record that there was some discrepancy in the time when the deceased was admitted stated by the doctor in his testimony and the time which was recorded in the hospital record.

7. The trial court has rejected the said application on the ground that firstly learned counsel for accused has not cross examined the said witness and it shall be open for the revisionist to move an appropriate application at the stage of producing defence witnesses and adducing the evidence in his defence, if he so chooses, therefore has rejected the application.

8. It is in the aforesaid circumstances, it was submitted that the provisions of Section 243 Cr.P.C. were fulfilled and accordingly it was incumbent upon the learned Magistrate to have allowed the application and to summon the documents as prayed by the accused.

9. Learned A.G.A. for the State has opposed the revision but does not dispute the aforesaid facts.

10. I have heard rival contentions of learned counsel for parties and perused the matter.

11. It is noticed that the revisionist is an accused in Case Crime No. 156 of 2019, under Sections 323, 504 and 307 IPC and Section 7 of the Criminal Law Amendment Act, 1932and one of the major evidences led by the prosecution is with regard to the dying declaration of the deceased which was recorded and who has admitted in the Civil Hospital Gonda. The aspect of recording of the dying declaration was stated by Dr. Laxmi Kant Goswami, who was the concerned doctor at the relevant time and who has given the fitness certificate prior to recording of the statement of dying declaration by the learned Magistrate. During examination in chief, he has categorically mentioned the time of recording of the said statement and the time when he has given the fitness certificate. After examination in chief, he was also cross examined on behalf of the accused.

12. It is in the aforesaid circumstances that the accused has desired that Bed Head Ticket be produced which contains all the relevant material including the time of admission, the nature of injuries and the treatment being given to the patient. With the production of the said documents, he wishes to test the testimony of Dr. Laxmi Kant Goswami and in this regard he has moved an application for production of the Bed Head Ticket. For consideration of the said application, it is necessary to consider the provisions of Section 243 Cr.P.C., which reads as under:- "243. Evidence for defence. (1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. (2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice. (3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court."

13. To invoke the provisions of Section 243 Cr.P.C., it is necessary that the accused should have entered upon his defence and should have cross-examined the witness pursuant to which he can make a prayer for recall of the witness or for production of any document.

14. In the present case, the only ground for rejection of the application is that he has not entered into his defence. At the very outset, it is noticed that the grounds taken for rejecting the application is incorrect, inasmuch as, the statement of the accused has already been recorded under Section 313 Cr.P.C. on

02.01.2025 and accordingly it cannot be said that the accused has not put his defence prior to moving of the said application on 03.04.2025. Accordingly, on the fact of it, the reason for rejecting the said application is incorrect and perverse.

15. Apart from the above, this Court finds that full opportunity should be given to the accused to defend himself. In the present case, the documents which are being sought for him is the public record of the hospital pertaining to the deceased, who was in treatment of the said hospital after he received burn injuries.

16. Hon'ble the Apex Court in the case Kalyani Baskar v. M.S. Sampoornam, reported in (2007) 2 SCC 258 in paragraph no. 12 has held as under: "12. …….. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. "Fair trial" includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them." 17. Accordingly, the said documents are clearly relevant and there is no reason for denial of the same on an application given by the accused.

18. In light of the above, the present revision is allowed and impugned order dated 18.04.2025 passed by learned Additional Sessions Judge, Court No. 3, Gonda rejecting the application under Section 91 Cr.P.C. in Sessions Trial No. 173 of 2019, arising out of Case Crime No. 156 of 2019, under Sections 323, 504, 307 & 302 IPC and Section 7 of the Criminal Law Amendment Act, Police Station Kotwali Dehat, District Gonda is set aside. Accordingly, application moved under Section 91 Cr.P.C. stands allowed. The trial court shall take appropriate steps for obtaining the said documents from the Civil Hospital, Gonda in accordance with law and take steps for expeditious disposal of the trial.

19. It is made clear that any observation made in this order shall not be construed any opinion on the merits of the case and the same shall be decided on its own merit. . Order Date :- 9.5.2025 Virendra (Alok Mathur, J.) VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench

3. It has been submitted by learned counsel for revisionist that the revisionist is an accused in Case Crime No. 156 of 2019, under Sections 323, 504 and 307 IPC and Section 7 of the Criminal Law Amendment Act, 1932.

4. The brief facts as submitted by learned counsel for revisionist is that the allegation against the revisionist pertaining to the fact that according to the complainant his cousin brother Vishnu Goswami and Mahesh were standing at the shop of Tiwari Ke Dahibade situated at Gonda-Faizabad Raod, in the meantime, accused persons Tufail, Imram, Master alias Ramzan and Nizamuddin came and started abusing the brother of the complainant and when they opposed the said abusing language then petrol was poured over them, which was taken out from a Tanker bearing Vehicle No. UP32 HN 7406 standing near there and Vishnu Goswami was lit on fire, due to which the brothers started burning and people standing nearby tried to douse the flames. It is due to the aforesaid acts Vishnu Goswami got severe burn injuries and was admitted to the District Hospital Gonda for treatment but looking to his burns, he was referred to Lucknow where he succumbed to the injuries.

5. It has been submitted by learned counsel for revisionist that after the said incident, when Vishnu Goswami was admitted to the Civil Hospital, Gonda the certificate of fitness was given by Dr. Laxmi Kant Goswami and dying declaration was recorded by learned Magistrate in his presence. During trial, Dr. Laxmi Kant Goswami was produced as one of the prosecution witnesses, who narrated the entire incident with regard to the deceased being admitted and statements being recorded by the learned Magistrate and on 14.05.2019, he was also cross- examined by learned counsel for accused.

6. After his cross examination an application under Section 243 Cr.P.C. was given seeking to summon the Bed Head Ticket, inasmuch as that learned counsel for accused wanted to contest the statement of Dr. Laxmi Kant Goswami and especially wanted to being on record that there was some discrepancy in the time when the deceased was admitted stated by the doctor in his testimony and the time which was recorded in the hospital record.

7. The trial court has rejected the said application on the ground that firstly learned counsel for accused has not cross examined the said witness and it shall be open for the revisionist to move an appropriate application at the stage of producing defence witnesses and adducing the evidence in his defence, if he so chooses, therefore has rejected the application.

8. It is in the aforesaid circumstances, it was submitted that the provisions of Section 243 Cr.P.C. were fulfilled and accordingly it was incumbent upon the learned Magistrate to have allowed the application and to summon the documents as prayed by the accused.

9. Learned A.G.A. for the State has opposed the revision but does not dispute the aforesaid facts.

10. I have heard rival contentions of learned counsel for parties and perused the matter.

11. It is noticed that the revisionist is an accused in Case Crime No. 156 of 2019, under Sections 323, 504 and 307 IPC and Section 7 of the Criminal Law Amendment Act, 1932and one of the major evidences led by the prosecution is with regard to the dying declaration of the deceased which was recorded and who has admitted in the Civil Hospital Gonda. The aspect of recording of the dying declaration was stated by Dr. Laxmi Kant Goswami, who was the concerned doctor at the relevant time and who has given the fitness certificate prior to recording of the statement of dying declaration by the learned Magistrate. During examination in chief, he has categorically mentioned the time of recording of the said statement and the time when he has given the fitness certificate. After examination in chief, he was also cross examined on behalf of the accused.

12. It is in the aforesaid circumstances that the accused has desired that Bed Head Ticket be produced which contains all the relevant material including the time of admission, the nature of injuries and the treatment being given to the patient. With the production of the said documents, he wishes to test the testimony of Dr. Laxmi Kant Goswami and in this regard he has moved an application for production of the Bed Head Ticket. For consideration of the said application, it is necessary to consider the provisions of Section 243 Cr.P.C., which reads as under:- "243. Evidence for defence. (1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record. (2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice. (3) The Magistrate may, before summoning any witness on an application under sub-section (2), require that the reasonable expenses incurred by the witness in attending for the purposes of the trial be deposited in Court."

13. To invoke the provisions of Section 243 Cr.P.C., it is necessary that the accused should have entered upon his defence and should have cross-examined the witness pursuant to which he can make a prayer for recall of the witness or for production of any document.

14. In the present case, the only ground for rejection of the application is that he has not entered into his defence. At the very outset, it is noticed that the grounds taken for rejecting the application is incorrect, inasmuch as, the statement of the accused has already been recorded under Section 313 Cr.P.C. on

02.01.2025 and accordingly it cannot be said that the accused has not put his defence prior to moving of the said application on 03.04.2025. Accordingly, on the fact of it, the reason for rejecting the said application is incorrect and perverse.

15. Apart from the above, this Court finds that full opportunity should be given to the accused to defend himself. In the present case, the documents which are being sought for him is the public record of the hospital pertaining to the deceased, who was in treatment of the said hospital after he received burn injuries.

16. Hon'ble the Apex Court in the case Kalyani Baskar v. M.S. Sampoornam, reported in (2007) 2 SCC 258 in paragraph no. 12 has held as under: "12. …….. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. "Fair trial" includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeing that there is no breach of them." 17. Accordingly, the said documents are clearly relevant and there is no reason for denial of the same on an application given by the accused.

18. In light of the above, the present revision is allowed and impugned order dated 18.04.2025 passed by learned Additional Sessions Judge, Court No. 3, Gonda rejecting the application under Section 91 Cr.P.C. in Sessions Trial No. 173 of 2019, arising out of Case Crime No. 156 of 2019, under Sections 323, 504, 307 & 302 IPC and Section 7 of the Criminal Law Amendment Act, Police Station Kotwali Dehat, District Gonda is set aside. Accordingly, application moved under Section 91 Cr.P.C. stands allowed. The trial court shall take appropriate steps for obtaining the said documents from the Civil Hospital, Gonda in accordance with law and take steps for expeditious disposal of the trial.

19. It is made clear that any observation made in this order shall not be construed any opinion on the merits of the case and the same shall be decided on its own merit. . Order Date :- 9.5.2025 Virendra (Alok Mathur, J.) VIRENDRA KUMAR GUPTA High Court of Judicature at Allahabad, Lucknow Bench