Crl. Misc. No. M-27270 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-27270 of 2010 DATE OF DECISION: August 10, 2011 Suresh Kumar .........PETITIONER(S) VERSUS Dr. S.N. Gupta and another ........ RESPONDENT(S) CORAM:HON'BLE MR. JUSTICE AJAI LAMBA Present: Mr. Dinesh Arora, Advocate, for the petitioner(s). Mr. John Kumar, Advocate, for respondent no. 1. Mr. B.S. Saini, Sr. DAG, Haryana. AJAI LAMBA, J. (ORAL) This petition filed under Section 482 Cr.P.C. prays for setting aside order dated 12.08.2010 passed by Additional Sessions Judge, Panipat, whereby application filed under Section 311 and Section 391 Cr.P.C. moved by respondent no. 1-the accused has been allowed. Facts in brief are that Smt. Omal Malik, wife of the petitioner had stone in her left kidney. She was admitted in Geeta Nursing Home, Panipat on 13.06.2003 for surgery and was operated upon by Dr. S.N Gupta. Subsequently, she experienced some problems and was examined in the hospital by Dr. Rathee. Ultrasound was conducted in the laboratory of Dr. Narula at Rohtak, whereupon it was revealed that left kidney of Smt. Omal Malik had been removed. Subsequently, she was got examined in PGIMS, Rohtak, which confirmed that the left kidney indeed was missing. Crl. Misc. No. M-27270 of 2010 2 Allegation in the FIR is that left kidney was removed by Dr. S.N. Gupta-the accused with ulterior motive. On such set of facts, the FIR was lodged and the respondent-accused was tried for commission of offences under Sections 420/406/326 IPC. Vide judgment dated 07.09.2009, the respondent has been convicted for commission of offence under Sections 326/420 IPC and accordingly sentenced vide order dated 08.09.2009. The respondent-accused filed an appeal against conviction. Respondent-State filed a case for enhancement of sentence. An application under Section 391 Cr.P.C. was filed before the appellate Court by the respondent-accused praying for bringing additional evidence, that has been allowed vide impugned order dated 12.08.2010. Resultantly, the respondent-accused has been allowed to recall PW-3 Dr. S.K. Singh, PW-6 Smt. Omal Malik for further cross examination. The respondent has also been allowed to summon Assistant Professor/Additional Professor/Professor of Urology Department of Post Graduate Institute of Medical Education and Research (PGI), Chandigarh in defence of the accused. Learned counsel for the petitioner contends that the accused cannot be allowed to fill up the lacunae in the manner it has been prayed for and allowed vide the impugned order. Learned counsel has drawn the attention of the Court towards the judgment of conviction recorded by the Trial Court, placed on record as Annexure P-1 to say that sufficient opportunity was given to the accused to cross examine the witnesses and also to bring evidence in defence. In such circumstances, the impugned order is rendered illegal. Crl. Misc. No. M-27270 of 2010 3 Learned counsel for the respondent-accused has read in extenso paras no. 13, 14 and 17 of the impugned order to say that the application filed by the respondent-accused has been allowed for legally tenable reasons and, therefore, call for no interference. I have considered the contention of the learned counsel. It appears that the lower Court has allowed the application of the accused while taking into account the time consumed by the prosecution in bringing evidence and the time consumed by the defence in bringing the evidence on behalf of the accused, in comparison. In para no. 13 of the judgment, it has been said that charges were framed on 28.04.2006 and thereafter the case was fixed for evidence of the prosecution. Prosecution was given 13 opportunities spreading over a span of 3 years. Statement of the accused was recorded under Section 313 Cr.P.C. on 11.08.2009 and thereafter the case was adjourned for leading defence evidence by accused for 25.08.2009. One witness was examined on 25.08.2009. The case was adjourned to 28.08.2009 and then to 02.09.2009. The case was again posted for 05.09.2009, on which date defence evidence was closed by order of Court and arguments were heard and the case was fixed for orders. The other reason that appears to have weighed with the lower Court is that Smt. Omal Malik was examined as PW-6, whereas the doctors had been examined earlier thereto as PW-1, PW-2, PW-3 and PW-4. Whatever came out from the statement of Smt. Omal Malik, could not be put to the doctors in cross examination. The third reason appears to be that the accused wants to bring on record medico legal aspect of the case by way of examining a Professor from Urology department. Crl. Misc. No. M-27270 of 2010 4 Having considered the reasons assigned by the Trial Court, I find that the same are not tenable in law. It has not been disputed by the respondent-accused that opportunity indeed was given to the respondent- accused to bring evidence in defence. Respondent did bring evidence in defence by way of examining one witness. Opportunities or the time provided to the prosecution cannot be allowed to weigh with the lower appellate Court to allow the defence to fill in the lacunae in the case. The argument that prosecution was allowed more time or opportunities cannot be allowed to be a relevant factor. What is to be seen is whether prosecution/defence have been allowed reasonable opportunity to bring evidence. The accused in this case has been allowed sufficient time and opportunities to lead evidence. The accused, however, failed in availing the opportunities. Order vide which the evidence of respondent was closed by the order of Court was not challenged by the respondent. The respondent- accused had the opportunity of summoning a Professor from Urology Department while leading evidence in defence, the same was not done. In such circumstances, clearly, the application of the respondent-accused could not have been allowed. There has to be a terminus to every lis. In the case in hand, as per the procedure provided under Cr.P.C., sufficient opportunities have been given which, however, were not availed by the defence. It appears that after the judgment of conviction was recorded, so as to deal with the reasons for conviction, application under Section 311 read with Section 391 Cr.P.C. has been filed so as to tide over the ground of conviction, which would not be permissible in law. It would rather be in abuse of the process provided Crl. Misc. No. M-27270 of 2010 5 under the Code of Criminal Procedure. If the respondent-accused considered it essential for his defence to summon a witness, the needful should have been done during the course of trial and the same, ordinarily is not to be allowed at the appellate stage, particularly in peculiar facts and circumstances of the case, noticed above. The petition accordingly is allowed. Order dated 12.08.2010 is hereby quashed. The lower appellate Court is directed to take up the appeal and render a decision within a period of 3 months from today. I have taken note of the fact that FIR was lodged in the year 2005 and the proceedings are still pending adjudication. 10.08.2011 (AJAI LAMBA) shivani JUDGE 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?