Delhi High Court
Sukhvinder Singh @ Gagga & Ors. vs The State (Gnct Of Delhi) on 20 May, 2022
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 20th May, 2022
+ CRL.M.C. 938/2022 & CRL.M.A. 4010/2022
SUKHVINDER SINGH @ GAGGA & ORS. ..... Petitioners
Through: Mr. Sanjay Khanna and Ms. Pragya
Bhushan, Advocates.
versus
THE STATE (GNCTD OF DELHI) ..... Respondent
Through: Ms. Meenakshi Dahiya, APP for the
State with SI Shiv Singh, PS Defence
Colony
%
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
JUDGMENT
The proceedings in the matter have been conducted through
hybrid mode [physical and virtual hearing].
1. The petitioners are facing trial in Sessions Case No. 46/2020,
arising out of FIR No. 01/2018, dated 03.01.2018, registered in Police
Station, Defence Colony, under Section 325 of the Indian Penal Code,
1860 ["IPC"]. By way of this petition under Section 482 of the Code
of Criminal Procedure, 1973 ["CrPC"], they have assailed an order
dated 28.01.2022, by which the Trial Court has allowed an application
filed by the prosecution under Section 311 of the CrPC for
summoning of an additional witness.
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2. The FIR was registered at the instance of one Gurmeet Singh
[hereinafter "the complainant"] in respect of an incident alleged to
have taken place on 11.12.2017. The complainant claims to have left
his home at around 11:35 PM by car to withdraw money. He found
that a car driven by the petitioner No. 1 was following him. The
estranged wife of the complainant, who is the petitioner No. 3, was
also in the car. It is alleged that the petitioner No. 1 pulled him out of
the car, threw him on the road and beat him. The petitioner No. 3 is
also accused of instigating others to beat the complainant. The
complainant drew out his gun to defend himself, but the petitioner No.
2 tried to snatch the gun, in the course of which a shot was fired, and it
hit the rear side of the car. The complainant claims to have been
subjected to blows by fists and with a baseball danda [hereinafter
"baseball bat"]. It is alleged that another shot was also fired, and that
the petitioner No. 2 snatched the complainant's phone, gold chain and
approximately ₹1500/- cash. An FIR under Section 304 of the IPC
[FIR No. 234/2017, dated 12.12.2017, registered in Police Station
Defence Colony, under Section 307 of the IPC and Section 27 of the
Arms Act, 1959] was registered against the complainant at the
instance of the petitioner No. 1. The complainant was detained by the
police but alleged that he and his family members have been
threatened by the petitioner Nos. 1 and 3.
3. In the course of the investigation, the complainant was
examined and a Medico-Legal Case ["MLC"] was drawn up by the
All India Institute of Medical Sciences Trauma Centre, wherein Dr.
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Kaberi Debbarma, Junior Resident, opined that the injuries were
grievous and caused with a blunt weapon.
4. Charges have been framed against the petitioners under Section
326/34/506/356 of the IPC.
5. During the course of the trial, Dr. Debbarma was examined as
PW-7. She testified to having prepared an MLC of the complainant on
12.12.2017 (Exhibit PW-3/A), and identified her signatures thereupon.
She also testified that she had prepared a discharge summary (Exhibit
PW-4/A). During the course of her cross examination, she stated that
the discharge summary at PW-4/E does not bear her signatures, but is
signed by one Dr. Vinay Kumar Sahu, Orthopedician, while the
discharge summary, in general, was signed by her. The relevant
portion of her testimony in cross examination is extracted below:-
" It is correct that the Discharge Summary Ex. PW-4/E
does not bear my signatures, but is signed by
Orthopedician. The opinion in Orthopedic OPD was
given by Dr. Vinay Kumar Sahu while the Discharge
Summary in general was signed by me. It is correct that
the Discharge Summary Ex. PW-4/E does not bear the
original signature of Dr. Vinay Kumar Sahu. The
Discharge Summary Ex. PW-4/E was not prepared by
me."
6. It is in these circumstances that the prosecution filed an
application dated 07.12.2021 before the Trial Court under Section 311
of the CrPC, seeking that Dr. Sahu be summoned as a witness. The
ground stated in the application was that, during the examination of
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Dr. Debbarma, it has been found that opinion on the MLC was also
given by Dr. Sahu.
7. Vide the order dated 28.01.2022, the Trial Court allowed the
aforesaid application, noticing that the object of Section 311 of the
CrPC is to bring on record best available records to ascertain the facts.
The Trial Court noticed that the prosecution had relied upon the
discharge summary, x-ray report and MLC which form part of the
charge sheet and had cited Dr. Debbarma as a witness. As it was only
during her cross examination that the role of Dr. Sahu came to light,
the Trial Court held that his evidence will be required to clarify the
medical condition of the complainant and the extent of the injury
suffered by him.
8. In support of this petition, Mr. Sanjay Khanna, learned counsel
for the petitioners, submitted that the Trial Court has effectively
permitted the prosecution to fill a lacuna in the prosecution evidence.
He pointed out that the list of witnesses in the charge sheet does not
name Dr. Sahu, and that the evidence of a second doctor is now sought
to be adduced to make out the case of injury by a baseball bat. He
drew my attention to the copy of the MLC where the name of the
proposed witness, i.e. Dr. Sahu, does not appear, and also submitted
that the signature of Dr. Sahu does not appear in the discharge
summary. Mr. Khanna cited the decisions of the Supreme Court in
Rajaram Prasad Yadav vs. State of Bihar and Another1 and V.N. Patil
vs. K. Niranjan Kumar and Others2 to submit that, in the
(2013) 14 SCC 461
(2021) 3 SCC 661
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circumstances of this case, the said application of the prosecution
ought to have been rejected.
9. Ms. Meenakshi Dahiya, learned Additional Public Prosecutor
for the State, on the other hand, argued that the evidence of the
proposed witness, as to the extent of the complainant's injuries and
treatment undergone, is required to arrive at a just decision of the
matter. She emphasised that the proposed witness was an independent
professional witness whose medical opinion must be produced as it is
relevant to the case at hand.
10. Section 311 of the CrPC reads as follows:-
"311. 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."
11. The scope of the provision has been considered by the Supreme
Court in several decisions. In Natasha Singh vs. Central Bureau of
Investigation (State)3, the Supreme Court emphasised that the object
of the provision is to enable the Court to determine the truth and to
render a just decision after scrutiny of relevant facts and on obtaining
proper proof. Although it cannot be used to fill up a lacuna or cause
prejudice to the accused, the power is required to be exercised if the
evidence of the proposed witness is likely to be germane to the issue.
(2013) 5 SCC 741
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These principles were restated in Rajaram Prasad Yadav4, cited by
Mr. Khanna, in the following terms:
"17. From a conspectus consideration of the
above decisions, while dealing with an application
under Section 311 CrPC read along with Section
138 of the Evidence Act, we feel the following
principles will have to be borne in mind by the
courts:
17.1. Whether the court is right in thinking that
the new evidence is needed by it? Whether the
evidence sought to be led in under Section 311 is
noted by the court for a just decision of a case?
17.2. The exercise of the widest discretionary
power under Section 311 CrPC should ensure that
the judgment should not be rendered on inchoate,
inconclusive and speculative presentation of facts,
as thereby the ends of justice would be defeated.
17.3. If evidence of any witness appears to the
court to be essential to the just decision of the
case, it is the power of the court to summon and
examine or recall and re-examine any such
person.
17.4. The exercise of power under Section 311
CrPC should be resorted to only with the object of
finding out the truth or obtaining proper proof for
such facts, which will lead to a just and correct
decision of the case.
17.5. The exercise of the said power cannot be
dubbed as filling in a lacuna in a prosecution
case, unless the facts and circumstances of the
case make it apparent that the exercise of power
by the court would result in causing serious
Supra (note 1)
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prejudice to the accused, resulting in miscarriage
of justice.
17.6. The wide discretionary power should be
exercised judiciously and not arbitrarily.
17.7. The court must satisfy itself that it was in
every respect essential to examine such a witness
or to recall him for further examination in order
to arrive at a just decision of the case.
17.8. The object of Section 311 CrPC
simultaneously imposes a duty on the court to
determine the truth and to render a just decision.
17.9. The court arrives at the conclusion that
additional evidence is necessary, not because it
would be impossible to pronounce the judgment
without it, but because there would be a failure of
justice without such evidence being considered.
17.10. Exigency of the situation, fair play and
good sense should be the safeguard, while
exercising the discretion. The court should bear in
mind that no party in a trial can be foreclosed
from correcting errors and that if proper evidence
was not adduced or a relevant material was not
brought on record due to any inadvertence, the
court should be magnanimous in permitting such
mistakes to be rectified.
17.11. The court should be conscious of the
position that after all the trial is basically for the
prisoners and the court should afford an
opportunity to them in the fairest manner possible.
In that parity of reasoning, it would be safe to err
in favour of the accused getting an opportunity
rather than protecting the prosecution against
possible prejudice at the cost of the accused. The
court should bear in mind that improper or
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capricious exercise of such a discretionary power,
may lead to undesirable results.
17.12. The additional evidence must not be
received as a disguise or to change the nature of
the case against any of the party.
17.13. The power must be exercised keeping in
mind that the evidence that is likely to be
tendered, would be germane to the issue involved
and also ensure that an opportunity of rebuttal is
given to the other party.
17.14. The power under Section 311 CrPC must
therefore, be invoked by the court only in order to
meet the ends of justice for strong and valid
reasons and the same must be exercised with care,
caution and circumspection. The court should
bear in mind that fair trial entails the interest of
the accused, the victim and the society and,
therefore, the grant of fair and proper
opportunities to the persons concerned, must be
ensured being a constitutional goal, as well as a
human right."
12. In Manju Devi vs. State of Rajasthan and Another5, the Court
held that the provision is intended to ensure that the record is kept
straight and any ambiguity with regard to the evidence is clear,
without causing prejudice to anyone.
13. The recent judgment in V.N. Patil6, also cited by Mr. Khanna,
concerns a case like the present one wherein the proposed witness was
not cited in the final report submitted to the Trial Court under Section
(2019) 6 SCC 203
Supra (note 2)
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311 of the CrPC. The Supreme Court noticed that the Trial Court had
permitted summoning of the witness, holding that no hardship could
be caused to the accused since the witnesses and the documents
intended to be summoned would be subjected to cross examination
and testification as per the provisions of the CrPC. Although the High
Court had reversed the view of the Trial Court, the Supreme Court
allowed the appeal and restored the judgment of the Trial Court for the
following reasons:-
"17. The aim of every court is to discover the
truth. Section 311 CrPC is one of many such
provisions which strengthen the arms of a court in
its effort to unearth the truth by procedure
sanctioned by law. At the same time, the
discretionary power vested under Section 311
CrPC has to be exercised judiciously for strong
and valid reasons and with caution and
circumspection to meet the ends of justice.
xxxx xxxx xxxx
21. In the instant case, although the application
was filed by the learned Additional Special Public
Prosecutor under Section 173(5) read with
Section 311 CrPC but it was open for the learned
trial Judge as well to exercise suo motu powers in
summoning the witnesses whose statements ought
to be recorded to subserve the cause of justice,
with the object of getting the evidence in aid of a
just decision and to uphold the truth."
14. Applying these principles to the facts of the present case, I am
of the view that the judgment of the Trial Court requires no
interference under Section 482 of the CrPC. The documents filed
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alongwith the charge sheet include the MLC and the discharge
summary. The name of Dr. Debbarma appears on the MLC, which she
has also identified. The discharge summary mentions that it is signed
by the proposed witness, i.e. Dr. Sahu, on 12.12.2017 at 04:59 and by
Dr. Debbarma on 12.12.2017 at 05:02 [Both the signatures appear to
be electronic signatures.] Mr. Khanna's argument that the evidence is
intended to fill a lacuna in the prosecution case is, therefore,
untenable. The fact that Dr. Sahu was involved in the treatment of the
complainant was proved by the documents filed alongwith the charge
sheet. His role has been elaborated by Dr. Debbarma in the course of
her cross examination. As held by the Supreme Court in Raja Ram
Prasad Yadav7 and V.N. Patil8, the guiding factors in such a situation
are fair play and good sense, with parties being given the opportunity
to correct errors in missing any particular evidence, even due to
inadvertence. In V.N. Patil9 also, in fact, the Supreme Court permitted
the evidence of a doctor who conducted the second post-mortem of the
deceased to be brought on record, when the doctor who had been
examined by the prosecution had turned hostile. In the light of the fact
that the prosecution had placed the MLC and discharge summary on
record, the summoning of Dr. Sahu, who had treated the complainant,
cannot be characterised as an attempt to fill a lacuna in the prosecution
evidence.
Supra (note 1) [paragraph 17.10]
Supra (note 2) [paragraph 14]
Supra (note 2)
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15. The Trial Court has also held that the medical evidence is
essential to clarify the medical evidence placed before the Court, to
arrive at a just determination of the case. I do not find any reason to
disagree with this view.
16. Mr. Khanna's submission that the proposed witness cannot be
summoned at this stage as he was not cited as a witness in the charge
sheet also does not appeal to me. As mentioned above, the Supreme
Court, in V.N. Patil10, also considered a similar argument but
permitted the summoning of the witness. I have had occasion to deal
with the issue in a recent judgment, i.e. Dr. Pradeep Dutta vs. State
(NCT of Delhi) and Others11, wherein a similar contention has been
rejected, relying upon the judgments of the High Courts of Himachal
Pradesh12 and Orissa13.
17. For the aforesaid reasons, I am of the view that the present
petition is devoid of merit. The same is, therefore, dismissed, but with
no order as to costs. The pending application also stands dismissed.
PRATEEK JALAN, J
MAY 20, 2022
'vp'
Supra (note 2)
Judgment dated 02.05.2022, in CRL.M.C. 1203/2022
Kewal Gupta vs. The State of Himachal Pradesh (1989) SCC Online HP 77
Karam Chand Mukhi and Others vs. Santosh Pradhan and Another (2004) SCC Online Ori 300
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Signing Date:20.05.2022
