11-WP-5217-2019-J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.5217 OF 2019
KHAJASAB SULEIMAN PULUJKAR AND ORS. )…PETITIONERS
V/s.
THE STATE OF MAHARASHTRA )…RESPONDENT
Ms.Tanvi Tapkire, Advocate for the Petitioners.
Mr.A.R.Kapadnis, APP for the Respondent – State.
CORAM : A. M. BADAR, J.
DATE : 16th OCTOBER 2019
ORAL JUDGMENT :
1 Heard. Rule. Rule made returnable forthwith.
2 By this petition, petitioners, who are accused before
the learned Additional Sessions Judge, Sangli, in Sessions Case
No.182 of 2013 for offences punishable under Sections 498A, 323,
504, 507 of the Indian Penal Code as well as under Section 376 of
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the Indian Penal Code and under Section 109 read with 34 of the
Indian Penal Code are challenging order dated 16 th August 2019
passed by the learned Additional Sessions Judge-2, Sangli, thereby
rejecting the application at Exhibit 74. By this application,
petitioners/accused had prayed for issuing summons to
Dr.D.C.Patil or his representative for adducing evidence. That
application came to be rejected by the impugned order.
2 Facts, in brief, are thus :
(a) First Informant who is examined as PW6 before the learned
trial court is daughter-in-law of petitioner no1/accused no.1
Khajasab Suleiman Pulujkar. Petitioner no.2/accused no.2
Faijulla Pulujkar is her husband whereas petitioner
no.3/accused no.3 Haseena Pulujkar is mother-in-law of the
First Informant/PW6. She alleged that these accused
persons had subjected her to cruelty, caused hurt to her
apart from criminally intimidating her and provoking her.
She further alleged that petitioner no.1/accused no.1
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Khajasab, who happens to be her father-in-law, had
committed rape on her, time and again.
(b) During the course of her evidence, the First Informant/PW6
has deposed that her father-in-law i.e. the petitioner
no.1/accused no.1 started raping her on and often when she
came back to her matrimonial house and petitioner
no.3/accused no.3 mother-in-law was aiding the petitioner
no.1/accused no.1 in this act. It is further deposed by the
First Informant/PW6 that on 21st October 2012, at about
3.00 p.m., her father-in-law committed rape on her in
presence of her mother-in-law and she aided this act by
increasing volume of the television.
(c) During the course of recording of their statement under
Section 313 of the Code of Criminal Procedure (hereinafter
referred to as Cr.P.C. for the sake of brevity), petitioners
sought leave of the court to examine the defence witness but
subsequently they passed a Pursis and declined to lead any
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oral evidence in defence. However, after conclusion of
arguments of the prosecution, an application at Exhibit 74
came to be filed by invoking powers of the trial court under
Section 311 of the Cr.P.C. It is contended by the defence that
evidence of Dr.D.C.Patil or his representative is essential for
just decision of the case, on the backdrop of the fact that on
21st February 2012, the First Informant/PW6 had been to the
hospital of Dr.D.C.Patil and got herself examined.
(d) After calling say of the prosecution, by the impugned order
dated 16th August 2019, the learned Additional Sessions
Judge-2, Sangli, was pleased to reject the said application for
summoning Dr.D.C.Patil for adducing evidence in the trial.
3 The learned counsel appearing for the petitioner drew
my attention to evidence of the First Informant/PW6 and argued
that as this witness had claimed that her father-in-law had
committed rape on her on and often and that on such dates she
was getting herself examined by Dr.D.C.Patil, the defence wants to
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bring on record the mental condition of the alleged victim of rape
by examining Dr.D.C.Patil. The learned counsel further argued
that conduct of the alleged victim is also required to be brought
on record as after the alleged incidents of rape on her, by her
father-in-law, she was visiting the hospital of Dr.D.C.Patil, but was
not disclosing the events which were taking place in her
matrimonial life, to this family Doctor. In that view of the matter,
according to the learned counsel for the petitioners, for just
decision of the case, evidence of Dr.D.C.Patil is necessary. My
attention is drawn to the cross-examination of the First Informant/
PW6 wherein she had denied even prescription dated 21 st October
2012 issued by Dr.D.C.Patil after examining her.
4 The learned APP opposed the petition by submitting
that the application, as framed and filed, was not maintainable, as
it was moved belatedly after closure of the defence witness.
5 I have considered the submissions so advanced and
also perused the impugned order.
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6 At the outset, it needs to be mentioned that power of
the court to summon material witnesses has vast amplitude and in
exercise of this power, even the trial court can recall any
witnesses, who are already examined. The trial court can summon
any witness even if evidence of both sides is closed, so long as the
court retains seisin of the criminal proceedings. What is required
to be demonstrated is, evidence of such witness is essential to the
just decision of the case.
7 In the case in hand, impugned order shows that the
learned trial court got swayed by the fact that eight witnesses
were examined by the prosecution and those were thoroughly and
extensively cross-examined by the defence. The learned trial court
had noted that the First Informant/PW6 was cross-examined by
putting her various questions in respect of treatment at the
hospital of Dr.D.C.Patil. The learned trial court noted the fact that
the First Informant/PW6 denied the prescription issued by
Dr.D.C.Patil after examining her on 21st October 2012. However,
the learned trial court took a shortcut in the matter by holding
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that the prescriptions dated 7th June 2012, 16th August 2012 and
21st October 2012 issued by Dr.D.C.Patil after examining the
victim can be exhibited for the purpose of identification, and
therefore, it is not necessary to examine Dr.D.C.Patil or any
authorized person on his behalf. Other reason given by the
learned trial court for rejection of the application for summoning
the defence witness is to the effect that the application is moved to
fill up the lacuna and to prolong the trial.
8 In her chief-examination, the First Informant/PW6 has
categorically stated that her father-in-law had committed rape on
her frequently and even once in presence of her mother-in-law.
On this backdrop, it has come in cross-examination of the victim
that she was regularly visiting the nursing home of Dr.D.C.Patil
and was taking treatment. In the chief-examination, the First
Informant/PW6 has categorically stated that one such incident of
rape on her, by her father-in-law, took place at 3.00 p.m. of 21 st
October 2012 and that too, in presence of her mother-in-law.
According to the defence, on this date itself, the First
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Informant/PW6 had been to the hospital of Dr.D.C.Patil and had
taken treatment from him for common cold and cough. Other
prescriptions issued by Dr.D.C.Patil after examining the First
Informant/PW6 are also relied by the defence. This is obviously
done in order to show that though the victim was visiting the
nursing home of Dr.D.C.Patil for taking treatment and on some
occasions, even on the dates of alleged incidents of rape on her by
her father-in-law, she had not disclosed commission of such
heinous offence to the family Doctor. It is, for this purpose, the
defence wants to examine Dr.D.C.Patil. However, the learned trial
court has not considered this aspect. The learned trial court is
apprehensive of the fact that by examining Dr.D.C.Patil, the
defence wants to fill in the lacuna. It appears that the learned
trial court has not understood the purport of the term “lacuna” in
criminal jurisprudence. Way back in the matter of Rajendraprasad
vs. Narcotic Cell1 the Hon’ble Apex Court has explained what it
means by a “lacuna” in the prosecution case. It is held by the
Hon’ble Apex Court that a “lacuna” in the prosecution case is not
to be equated with the fall out of an oversight committed by the
1 (1996) 6 SCC 110
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Public Prosecutor during the trial either in producing relevant
material or in eliciting relevant answers from witnesses. Laches or
mistakes during conducting of a case, as held by the Hon’ble
Supreme Court, cannot be understood as a “lacuna” which the
court cannot fill up. “Lacuna” must be understood as an inherent
weakness in the case of prosecution or latent wedge in the matrix
of the prosecution case. However, an oversight in management of
the prosecution by the learned Public Prosecutor cannot be treated
as a “lacuna”. Some analogy applies even in case of the defence.
Delay in applying for summoning the defence witness cannot be
termed as “lacuna” in the defence.
9 Similarly, the learned Additional Sessions Judge also
erred in holding that by marking the prescriptions as exhibits for
the purpose of identification, the purpose is served. The defence
is not harping upon proving the contents of the prescriptions. On
the contrary, the defence wants to demonstrate conduct of the
prosecutrix which is not compatible with the alleged happenings
in her matrimonial life. Even otherwise, marking the documents
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as exhibits only for the purpose of identification, does not serve
any purpose. Merely placing the document in original for perusal
of the court would not be adequate to prove the event embodied
within the contents of such document. For proving the contents of
that document, a witness to execution of the document is required
to be examined. The document is required to be proved by
examining the author thereof and not by marking it as an Exhibit
for the purpose of identification. Therefore, even if prescriptions
of Dr.D.C.Patil’s Nursing home are exhibited for the purpose of
identification, the learned trial court cannot look into such
hearsay evidence by making it admissible in a circuitous way, by
exhibiting the same.
10 The net result of foregoing discussion requires me to
hold that the impugned order cannot be sustained and the defence
has made out a case for summoning Dr.D.C.Patil, as his evidence is
necessary for just decision of the case. Hence, the order :
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i) The petition is allowed.
ii) Rule is made absolute in terms of Prayer Clause (a).
(A. M. BADAR, J.)
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