Manju Devi vs The State Of Rajasthan

2.1. By its order dated 31.05.2018, the Trial Court rejected the application so moved by the appellant, essentially for reasons that the trial was pending for almost 8 years; and that it was not necessary to record the statement of Dr. I. Yusuf because a copy of the post-mortem report prepared by him had already been exhibited. The appellant attempted to question the order so passed by the Trial Court before the High Court of Judicature for Rajasthan at Jodhpur in Criminal Miscellaneous Petition No. 2282 of 2018. However, the High Court dismissed the said petition by its impugned order dated 02.08.2018 with the observation that there was no reason to interfere in the exercise of discretion by the Trial Court. Aggrieved, the appellant has preferred this appeal by special leave.

she was residing in her matrimonial home alongwith father and mother of her husband; and later on she had shifted to Bangalore and then to Nigeria with her husband but was regularly harassed with demand for dowry. It is alleged that on 14.01.2010, the appellant's daughter, while living with her husband (the accused-respondent No. 2) in Nigeria, died under unnatural 2 circumstances when she was found hanging from the ceiling fan in her room. An FIR bearing No. 10 of 2010 was lodged at Police Station Rajaldesar, District Churu by the husband of appellant (father of the deceased), alleging, inter alia, that his daughter was harassed with persistent demands for dowry and she was subjected to cruelty to the extent that it ultimately led to her death in Nigeria.

3.2. The first post-mortem of the dead-body of the appellant's daughter was conducted by Dr. I.Yusuf in Aminu Kanu Teaching Hospital, Nigeria on 16.01.2010 who, upon examination, stated his opinion that the cause of death was "asphyxia secondary to strangulation". Thereafter, the dead-body of the appellant's daughter was brought to India where a Medical Board was constituted for further post-mortem but the Medical Board stated that no definite opinion could be formed regarding the time and cause of death of the daughter of the appellant. After investigation, charge-sheet was filed against the respondent No. 2 for the offences under Sections 302, 304-B and 498-A IPC.

3.3. In the trial, the prosecution led its evidence and various witnesses were examined but as the members of the Board were unable to give any definite opinion as to the cause of death, an application under Section 311 CrPC was moved by the appellant, for issuance of summons to the said Dr. I. Yusuf, Department of Pathology, Aminu Kanu Teaching Hospital, Nigeria, who had first conducted the post-mortem of the dead-body of the appellant's daughter in Nigeria, so that he may be examined as a medical witness. It was also 3 submitted in the alternative that the evidence of the said doctor may be recorded through video-conferencing.

5. Against the order aforesaid, the appellant filed a criminal miscellaneous petition under Section 482 CrPC before the High Court of Judicature for Rajasthan at Jodhpur while contending, inter alia, that Dr. I. Yusuf was a material witness in the case and the prosecution had illegally omitted to cite him as a witness. However, the petition was dismissed by the High Court by way of its impugned order dated 02.08.2018 while observing that in the overall facts and circumstances of the case, the discretion exercised by the Trial Court called for no interference.

(1) If the witness is within the territories to which this Code extends, the commission shall be directed to the Chief Metropolitan Magistrate or Chief Judicial Magistrate, as the case may be, within whose local jurisdiction the witness is to be found.

14. In the given set of facts and circumstances, we are clearly of the view that the Trial Court disposed of the application under Section 311 CrPC on entirely irrelevant considerations and the High Court also failed to exercise its jurisdiction under Section 482 CrPC while overlooking and ignoring the material and relevant aspects of the case. In our view, the said application under Section 311 CrPC deserves to be allowed.

15. It goes without saying that we have not made any comments on the merits of the case; and the Trial Court would be expected to deal with the 12 matter in accordance with law after assessment of the evidence brought on record.

16. Accordingly, this appeal is allowed in the manner and to the extent that the impugned orders dated 31.05.2018 and 02.08.2018 are set aside and the application moved in this matter under Section 311 CrPC is allowed. The Trial Court shall now take all the necessary measures for ensuring the examination of the witness concerned by issuing commission and/or recording his statement through video-conferencing and shall also ensure expeditious proceedings so as to conclude the matter at the earliest.