Case Note & Summary
The appellant, mother of the deceased, sought to summon Dr. I. Yusuf, who conducted the first post-mortem in Nigeria, as a witness under Section 311 CrPC in the trial against her son-in-law for offences under Sections 302, 304-B and 498-A IPC. The deceased died by hanging in Nigeria on 14.01.2010; the first post-mortem report stated cause of death as 'asphyxia secondary to strangulation'. However, the Medical Board in India could not give a definite opinion. The prosecution did not cite Dr. Yusuf as a witness. The Trial Court rejected the application citing delay of 8 years and that a copy of the post-mortem report was already exhibited. The High Court upheld this. The Supreme Court held that the evidence of Dr. Yusuf is essential for a just decision, as the cause of death is crucial. The court observed that the power under Section 311 CrPC is wide and must be exercised to ensure all relevant evidence is on record. The court set aside the impugned orders and directed the Trial Court to summon Dr. Yusuf, either through a commission or video-conferencing, and to conclude the trial expeditiously.
Headnote
A) Criminal Procedure - Summoning of Material Witness - Section 311 CrPC - Power to summon witness at any stage - The court must summon any person if his evidence appears essential to the just decision of the case; discretion must be exercised judiciously and not arbitrarily (Paras 9-9.1).
B) Criminal Procedure - Essential Witness - Post-Mortem Doctor - Section 311 CrPC - Where the first post-mortem report indicates 'asphyxia secondary to strangulation' but the Medical Board in India could not give a definite opinion, the doctor who conducted the first post-mortem is a material witness whose examination is essential for a just decision; rejection on ground of delay is not judicious (Paras 10-11).
C) Criminal Procedure - Video-Conferencing - Section 311 CrPC - The court may direct recording of evidence through video-conferencing or issue a commission for examination of a witness residing abroad, to secure essential evidence without undue delay (Para 12).
Issue of Consideration
Whether the Trial Court and High Court erred in rejecting the application under Section 311 CrPC to summon Dr. I. Yusuf, who conducted the first post-mortem in Nigeria, as a witness, despite his evidence being essential for a just decision.
Final Decision
The Supreme Court allowed the appeal, set aside the impugned orders of the Trial Court and High Court, and directed the Trial Court to summon Dr. I. Yusuf as a witness, either by issuing a commission to the High Commission of India in Nigeria or by recording his evidence through video-conferencing, and to conclude the trial expeditiously.
Law Points
- Section 311 CrPC
- power to summon material witness
- essential for just decision
- discretion must be exercised judiciously
- not to fill lacuna
- video-conferencing permissible
Case Details
2019 LawText (SC) (4) 114
Criminal Appeal No. 688 of 2019 (Arising out of SLP (Crl.) No. 8315 of 2018)
State of Rajasthan & Anr.
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Nature of Litigation
Criminal appeal against rejection of application under Section 311 CrPC to summon a foreign doctor as witness in a dowry death trial.
Remedy Sought
The appellant (mother of deceased) sought summoning of Dr. I. Yusuf, who conducted the first post-mortem in Nigeria, as a witness, or recording his evidence via video-conferencing.
Filing Reason
The Trial Court and High Court rejected the application on grounds of delay and that a copy of the post-mortem report was already exhibited.
Previous Decisions
Trial Court order dated 31.05.2018 rejected the application; High Court order dated 02.08.2018 dismissed the criminal miscellaneous petition under Section 482 CrPC.
Issues
Whether the evidence of Dr. I. Yusuf, who conducted the first post-mortem in Nigeria, is essential for the just decision of the case under Section 311 CrPC.
Whether the Trial Court and High Court erred in rejecting the application on the ground of delay and that a copy of the post-mortem report was already exhibited.
Submissions/Arguments
Appellant: Dr. I. Yusuf is a material witness; his testimony is essential to arrive at a just decision; rejection on ground of delay is not judicious.
Respondent No. 2 (accused): The application is baseless and only seeks protraction of trial; Trial Court rightly exercised discretion.
Ratio Decidendi
Under Section 311 CrPC, the court has wide discretionary power to summon any person as a witness if his evidence appears essential to the just decision of the case. The power must be exercised judiciously to ensure all relevant evidence is on record. In a dowry death case where the first post-mortem report indicates strangulation but the Medical Board in India could not give a definite opinion, the doctor who conducted the first post-mortem is a material witness whose examination is essential. Rejection on the ground of delay is not a valid reason when the evidence is crucial for a just decision.
Judgment Excerpts
Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at 'any stage' of 'any enquiry', or 'trial', or 'any other proceedings' under CrPC... if his evidence appears to it, to be essential to the arrival of a just decision of the case.
The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.
In the given set of facts and circumstances, evident it is that the testimony of Dr. I. Yusuf is essential for the just decision of the case.
Procedural History
The appellant's daughter died in Nigeria on 14.01.2010; FIR lodged; first post-mortem by Dr. I. Yusuf on 16.01.2010; body brought to India; Medical Board conducted second post-mortem but gave no definite opinion; charge-sheet filed against respondent No. 2 for offences under Sections 302, 304-B, 498-A IPC; trial commenced; prosecution led evidence; appellant moved application under Section 311 CrPC on 31.05.2018 to summon Dr. I. Yusuf; Trial Court rejected application on same day; appellant filed Criminal Miscellaneous Petition No. 2282 of 2018 under Section 482 CrPC before Rajasthan High Court; High Court dismissed petition on 02.08.2018; appellant filed SLP (Crl.) No. 8315 of 2018 before Supreme Court; Supreme Court granted leave and allowed appeal on 16.04.2019.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 311, 482
- Indian Penal Code, 1860 (IPC): 302, 304-B, 498-A
