1 criwp848.11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 848 OF 2011 1. Dnyanoba S/o Bapurao Pandhare, Age : 35 years, Occ : Agri., R/o Babulgaon, Tq. Ambajogai, Dist. Beed. 2. Nilawatibai W/o Dnyanoba Pandhare, Age : 35 years, Occ : Household, R/o as above. ..PETITIONERS -VERSUS- 1. The State of Maharashtra, Through it's Secretary, Home Department, Mantralaya, Mumbai. 2. The Police Inspector, Police Station, Bardapur, Tq. Ambajogai, Dist. Beed. 3. Janabai W/o Tukaram Pandhare, Age : Major, Occ : Household, R/o Babhulgaon, Tq. Ambajogai, Dist. Beed. ..RESPONDENTS ..... Shri N.L. Jadhav, learned counsel for the applicants. Smt. V.A. Shinde, A.P.P. for respondent/State. Shri S.S. Thombre, learned counsel for respondent no.3. ..... (CORAM : A.V. POTDAR, J) DATED : 12th October, 2011. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. By consent of the learned counsel for the parties heard finally at the stage of admission. 2 criwp848.11 2. By the present Writ Petition under Article 227 of the Constitution of India r/w Section 482 of the Code of Criminal Procedure, the petitioners who are the accused in Sessions Trial No. 40 of 2009 on the file of learned Additional Sessions Judge, Ambajogai have questioned the correctness of the order passed below Exhibit-145 dated 09.09.2011, by which the application moved by the prosecution under Section 311 of the Criminal Procedure Code, to call for certain record from the S.R.T. Medical Hospital, Ambajogai is allowed. 3. The facts which are not be disputed but are necessary for just decision in Writ Petition can be summarized as follows. On 2nd January, 2009, Janabai-complainant and her husband-Tukaram were allegedly assaulted by the petitioners- accused while they were carrying old bricks. Alleged incident took place at around 2.00 p.m. Thereafter, Janabai and her husband Tukaram were shifted to S.R.T. Medical Hospital, Ambajogai where Janabai was treated and discharged on the same day. Tukaram was initially examined at 3.30 p.m. as O.P.D. patient and thereafter admitted as indoor patient and advised surgery. It appears that initially Tukaram was examined by Dr. Kunal Jadhav. It further 3 criwp848.11 appears that while under medical treatment Tukaram succumbed to the injury on 4th January, 2009. Thereafter, autopsy was conducted on dead body by Dr. Chavan. So far as incident is concerned, it is reported in Faradapur Police Station where an offence at C.R. No. 3/2009 was registered under Section 302, 324, 504, 506 r/w 34 of the Indian Penal Code. It appears that on completion of the investigation, the charge sheet was filed in the Court of Judicial Magistrate, First Class, Ambajogai. After passing requisite committal order the trial was committed to the Court of Sessions , Ambajogai. It appears that in due course after the plea of the accused-petitioners were recorded and the parties were put to trial, during trial it appears that Dr. Chavan was examined as prosecution witness no.7 and Dr. Jadhav as prosecution witness no. 14. In their evidence, they have produced certain papers, so also certain papers produced in the evidence of Dr. Chavan were not exhibited as not proved as he is not a person who has performed the surgery on Tukaram. It appears that after this evidence was over, an application was moved on behalf of the prosecution which is at Exhibit-145 requesting the Court to call O.P.D. case papers register of admission, Casualty patient entry register and Indoor patient register in respect of Tukaram Pandhare and the Superintendent of S.R.T. Medical Hospital, Ambajogai be called as witness to prove the entries in the said 4 criwp848.11 register. It appears that this application was opposed by the petitioners, but after hearing the parties, the learned Sessions Judge pleased to allow the application at Exhibit-145 and allowed the prosecution to call for those papers so also to call witness to prove those papers. 4. This order is impugned in this Writ Petition. It is urged across the bar by the learned counsel for the petitioners that already the prosecution has examined Dr. Chavan as P.W. 7 and Dr. Kunal Jadhav as P.W. 14. In their evidence, they have produced relevant papers and now it is not necessary to call these documents and the Superintendent of the S.R.T. Medical Hospital, Ambajogai to be examined as prosecution witness at this belated stage. Per contra, learned counsel appearing for the respondent no.3 supports the order impugned in this Petition. 5. Law is settled on this issue that if the Court thinks it fit to examine a particular witness to meet the ends of justice in such circumstances, even if the witness has not cited as witness and if the statement was not recorded under Section 161 of the Criminal Procedure Code during the investigation even then the witness can be called and examined as witness to meet the ends of justice under Section 311 of the Code of Criminal Procedure. This view is 5 criwp848.11 made more clear in the observations of this Court in "2004 Cri.L.J. 4380" in the matter of "Karam Chand Mukhi and others V/s Santosh Pradhan and another". Further it is useful to give the reference of the observations of this Court in "2004(3) Mh.L.J. 309" in the matter of "Dnyandeo Pandurang Yadav and others V/s State of Maharashtra" wherein in paragraph nos. 12, 18 and 19, the scope of exercise of powers under Section 311 of Code of Criminal Procedure is discussed. Certain parameters are quoted in those paragraphs which in substance raises the purpose behind exercise of powers under Section 311 of the Code of Criminal Procedure by the Court is not to fill in lacunae in the evidence led by the prosecution or to support the defence but to discover the relevant facts or to obtain proper proof of such facts for arriving at a just decision of the case. The said exercise has to be done in a judicious manner. It is ultimately with the Court of facts to place reliance on the testimony of a Court witness which would be based on the quality of his evidence, the truthfulness in it and confidence which it transpires. It is further useful to give the reference of the observations in "A.I.R. 2008 S.C. 1943" in the matter of " Himanshu Singh Sabharwal V/s State of M.P. and others" wherein, it is further discussed the scope about the exercise of powers vested under Section 311 of the Code of Criminal Procedure. 6 criwp848.11 6. In the light of the observations of the cases which are cited in earlier paragraphs supra, if the facts stated in the application on which the order impugned came to be passed are tested, the fact remain that deceased Tukaram was initially admitted in the hospital on 2nd January, 2009 at that time he was examined by Dr. Kunal Jadhav. No doubt this Dr. Kunal Jadhav is examined as P.W. 14, it is a matter of record while taking medical treatment said Tukaram succumbed to the injury on 4th January, 2009. It is obvious that autopsy test was held by Dr. Chavan, who has examined as P.W. 7. The fact remains, during this period surgeon has also performed the surgery on Tukaram. That papers are not on record so also the relevant registers in which the entry was taken about the admission of patient in the hospital, about his admission as O.P.D. patient and thereafter his admission as indoor patient are also not on record. By the application at Exhibit-145, the prosecution intends to bring those documents on record and intends to prove those documents through Superintendent of S.R.T. Medical Hospital, Ambajogai, who is authorised custodian of those documents. It cannot be disputed, at this stage, that as on 2nd January, 2009 Tukaram was admitted in the hospital. Various treatments were provided to him till he succumbed to injury on 4th January, 2009 and during this period, he was not only treated by Dr. Kunal Jadhav, but was 7 criwp848.11 treated by others also. These entries are relevant from the record which is called for. In other words, the record which is called for under Application at Exhibit-145 is necessary for just decision of the criminal trial. Considering these circumstances, if the application is allowed by the Court, it cannot be said that the powers were exercised arbitrarily and not judiciously. 7. Considering this legal aspect of the matter, no interference is called for in the present Writ Petition in exercise of extra ordinary writ jurisdiction of this Court. In substance, the Petition sans merits and hence, rejected. Rule discharged accordingly. -Sd- (A. V. POTDAR, J) ga s/ criwp 848.11