[Cites 19, Cited by 0]
Allahabad High Court
Haseeb And 4 Others vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 15 April, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2026:AHC-LKO:26755
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 1002 of 2026
Haseeb And 4 Others
.....Appellant(s)
Versus
State Of U.P. Thru. Prin. Secy. Deptt. Of Home Lko.
.....Respondent(s)
Counsel for Appellant(s)
:
J.B. Singh
Counsel for Respondent(s)
:
G.A.
Court No. - 27
HON'BLE RAM MANOHAR NARAYAN MISHRA, J.
1. Heard learned counsel for the appellants, learned A.G.A. for the State and perused the record.
2. Instant criminal appeal has been preferred against the order dated 30.03.2026 passed by learned Special Judge (S.C./S.T. Act), Raebareli in S.T. No.298 of 2008 "State versus Mohammad Umar & others", arising out of Case Crime No.133 of 1993, under Sections 147, 148, 149, 302, 307, 323, 504, 506 IPC & Section 3(1)(x) S.C./S.T. Act, Police Station Bhadokhar, District Raebareli, whereby an application filed by the revisionists/ appellants, under Section 311 Cr.P.C./ 348 BNSS, for summoning the Dr. R.K. Dixit (PW-9) has been rejected.
3. Learned counsel for the appellants submitted that in the present case, Dr. R.K. Dixit had prepared the postmortem examination report of the deceased Pancham but said doctor was not produced during prosecution evidence and in his place, a pharmacist of the concerned hospital, who was said to be the author of the postmortem report, has been examined as PW4. He has admitted in cross-examination that he was not posted at the District Hospital, Raebareli, when the injured persons were medically examined and the postmortem examination of the deceased was carried out. Neither the injury report of the injured nor the postmortem report of the deceased were prepared in his presence. He could not tell who had prepared the injury report; whether it was prepared by Dr. R.K. Dixit or by some other doctor. He has never been posted with Dr. R.K. Dixit and he is not acquainted with his writing and signature.
4. He next submitted that on perusal of the evidence of PW4, it is obvious that he was totally unconcerned with the postmortem examination report of the deceased as well as the injury report of the injured persons. The injury report and the postmortem report in the case are wrongly proved through the evidence of PW4, chief pharmacist Mayapati Mohan. This manner of proof of important prosecution documents, like the injury report and the postmortem examination report, is contrary to law.
5. He further submitted that the appellant had moved an application under Section 311 of Cr.P.C. for summoning Dr. R.K. Dixit for his evidence, so as to prove the injury report and the postmortem examination report on which the prosecution has placed reliance. The appellants are accused in the case. There is no assertion as to whether the said doctor is presently in service or retired. Even if he is retired, someone may be summoned to his present address in the records of the Director General of Medical and Health. His whereabouts may have been available. The learned trial court dismissed the application on the oral submissions of the prosecution, stating that the whereabouts of the said doctor are not traced out and placing reliance on the oral submissions of the prosecution, the learned trial court permitted the medical reports of Dr. R.K. Dixit to be proven by PW4, and the case was fixed for recording the statement of the investigating officer. Even it is stated in the said order dated 30.03.2026 that the investigating officer, Shivlal, had reportedly died and the case was fixed for recording evidence of other investigating officers but a report was given by Pairokar of the police station concerned that due to the fact that the case relates to the year 1993, no official is available who can be produced in secondary evidence and the prosecution failed to adduce even secondary evidence. In the absence of the evidence of the investigating officers, the case was fixed for the statement of the accused under Section 313 of the Cr.P.C. but the accused persons have moved an application under Section 311 of the Cr.P.C. deliberately at a later stage. The case is pending since 1993; therefore, it appears that the application has been filed to delay the conclusion of the trial.
6. He further submitted that the aforesaid observation of the trial court is based on assumptions and not on cogent reasons.
7. Learned counsel placed reliance on a judgment of this Court in Smt. Suman versus State of U.P., Criminal Revision No.2608 of 2022, wherein the doctor who prepared the injury report of the injured persons was not examined. The informant moved an application to summon the said doctor under Section 311 Cr.P.C. at the stage of recording of the statement of the accused under Section 313 Cr.P.C. The trial court rejected the application on the ground that the injuries alleged to be caused to the injured are said to be simple in nature. It was a case under Sections 323, 325, 504, 506 IPC. This Court observed as under:-
"12. This court is of the view that it was the duty of I.O. to record the statement of the concerned Doctor and array his name in the column of witness in the charge-sheet. If it has not been done, it is not a fault of the informant/revisionist, if Dr. Ajay Gopal is not examined, the injury reports prepared by him would not be proved and would not be admissible in evidence. If no objection has been raised on the said injury report, it may be exhibited but it is not liable to be exhibited under Section 293 Cr.P.C. Therefore, it was the duty of the trial court to summon the witness Dr. Ajay Gopal suo-moto. He was also under the obligation to record a finding that it is fault on the part of I.O that he did not record the statement of Dr. Ajay Gopal and has not copied the injury reports in case diary.
13. The judge of a criminal court is not a silent spectator, it is his duty to be vigilant and conscious and if there is apprehension of injustice during the course of trial, it is his duty to be vigilant. The charge-sheet is not the borderline, which cannot it cross by the trail court, it is not a Holy Bible, Quran or Gita or any other mandatory enactment, which must be obeyed in every event, if the learned trial court finds that the injured were medically examined by Dr. Ajay Gopal and he has prepared the injury report, it was the duty of the trial court to summon him instead of fact that his statement was not recorded by the I.O and he was not arrayed in the list of witnesses in charge-sheet.
Section 311 Cr.P.C provided wide power to the court to summon the material witness, which is as under:-
"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."
The second part of Section 311 Cr.P.C is mandatory and it casts duty on the court to summon, examine or call or re-examine any such persons, if his evidence appears to be essential to the just decision of the case."
8. This Court, with the above observations and citing certain case laws on the subject, found that the impugned order passed by the trial court was perverse and bad in law and it was quashed.
9. Learned counsel for the appellant placed reliance on another judgment passed by the Hon'ble Supreme Court in Munna Kumar versus State of Bihar, 2005 (12) SCC 2009, wherein it is held in paragraph 8 as under:-
"8. The prosecution should have produce the best evidence by proving the post-mortem certificate. It should have examined any person who had some acquaintance with the handwriting of the doctor who prepared the post-mortem report, either one of his colleagues or anybody who had been working in the hospital where the doctor worked. The prosecution failed to produce the best evidence and the appellant is certainly entitled to the benefit of doubt arising out of this."
10. Per contra, learned A.G.A. submitted that the impugned order has been passed by the learned trial court on the basis of the facts and circumstances of the case; the whereabouts of the said doctor were not known, despite the best efforts of the prosecution. The case has been pending since the year 1993. It is quite natural that no doctor was posted alongwith Dr. R.K. Dixit is presently unavailable and the doctor who can be produced in secondary evidence to prove the writing, signature and contents of the injury report and post-mortem report. The chief pharmacist of the hospital has been produced in evidence in the prosecution after seeking relief from the court. Therefore, there is no illegality or perversity in the impugned order passed by the learned court below.
11. In the absence of the doctor who conducted the post-mortem examination of the deceased and prepared injury reports of the injured, the report can be proved by another doctor or a competent witness from the same hospital, provided certain conditions are met.
12. In view of the provisions of Section 32(2) of the Indian Evidence Act, if the original doctor is dead, unavailable or incapable of testifying the report prepared by him is admissible as a relevant fact, often identified by another doctor familiar with the signature and professional duties of the author. Another doctor from the same hospital can testify to the handwriting and signature of the author of the report to authenticate the document.
13. In terms of Section 294 Cr.P.C., if the defence does not dispute the genuineness of the report, it can be read into evidence without the author's personal appearance or testimony before the court. However, the original doctor should be called for cross-examination if he is available.
14. The Hon'ble Supreme Court in the case of Vijender versus State of Delhi, reported in 1997 SCC (Crl) 857 has held as under:-
"In view of Section 60 of the Evidence Act, the prosecution is bound to lead the best evidence available to prove a certain fact and in the instant case, it was the doctor, who held the post-mortem examination. It was, of course, proved that in an exceptional case where any of the prerequisites of Section 32 of the Evidence Act are fulfilled, a post-mortem report can be admitted in evidence as a relevant fact under sub-section (2) thereof by proving the same through some other competent witness but this section had no manner of application in the present case for the evidence of the records clearly reveals that on the date he was deposing, the doctor, who conducted the post-mortem, was in the hospital where the post-mortem was conducted. The other reason for which the trial judge ought not to have allowed the prosecution to prove the post-mortem report is that it was not the original report but only a copy thereof and that too not certified."
15. In view of the above, I finds force in the submissions of learned counsel for the appellants that secondary evidence adduced by the prosecution to prove the medical papers authored by Dr. R.K. Dixit through a pharmacist of the hospital who was neither posted at the time of the incident in said hospital, nor he worked with the said doctor and also he was not acquainted with the writing and signature of the said doctor, is of no significance. Therefore, the impugned order passed by the learned trial court, whereby the prayer to summon Dr. R.K. Dixit, has been rejected on the grounds mentioned in the order alongwith a Rs.1,000/- cost, is not sustainable and being not in accordance with law.
16. Consequently, the impugned order is set aside. The learned trial court is directed to hear the appellants on the said application under Section 311 Cr.P.C. afresh after giving an opportunity of hearing to the prosecution, also in the light of the observations made here-in-above. In case the trial court allows the application, it will move the CMO of the District to divulge the place of posting or permanent address of the said doctor after going through the records. Information may also be gathered regarding the whereabouts of the said doctor from the office of the Director General of Medical and Health, U.P. and he may be summoned. And upon receiving information, summons may be issued to him at the given address. In case his whereabouts are not known or to the competent authorities, another doctor posted at the same hospital during the period of preparation of the said medical papers may be summoned to prove the medical documents in the case in accordance with law.
17. With the above observations, the appeal stands allowed.
(Ram Manohar Narayan Mishra,J.)
April 15, 2026
Mohd. Sharif
