SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Khajasab Suleiman Pulujkar And … vs The State Of Maharahsta on 16 October, 2019

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

avk 1/11

::: Uploaded on – 17/10/2019 18/10/2019 01:09:27 :::
11-WP-5217-2019-J.doc

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

avk 2/11

::: Uploaded on – 17/10/2019 18/10/2019 01:09:27 :::
11-WP-5217-2019-J.doc

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

avk 3/11

::: Uploaded on – 17/10/2019 18/10/2019 01:09:27 :::
11-WP-5217-2019-J.doc

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

avk 4/11

::: Uploaded on – 17/10/2019 18/10/2019 01:09:27 :::
11-WP-5217-2019-J.doc

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.

avk 5/11

::: Uploaded on – 17/10/2019 18/10/2019 01:09:27 :::
11-WP-5217-2019-J.doc

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

avk 6/11

::: Uploaded on – 17/10/2019 18/10/2019 01:09:27 :::
11-WP-5217-2019-J.doc

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

avk 7/11

::: Uploaded on – 17/10/2019 18/10/2019 01:09:27 :::
11-WP-5217-2019-J.doc

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

avk 8/11

::: Uploaded on – 17/10/2019 18/10/2019 01:09:27 :::
11-WP-5217-2019-J.doc

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

avk 9/11

::: Uploaded on – 17/10/2019 18/10/2019 01:09:27 :::
11-WP-5217-2019-J.doc

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 :

 avk                                                                        10/11

::: Uploaded on - 17/10/2019 18/10/2019 01:09:27 :::
11-WP-5217-2019-J.doc

ORDER

i) The petition is allowed.

ii) Rule is made absolute in terms of Prayer Clause (a).

(A. M. BADAR, J.)

avk 11/11

::: Uploaded on - 17/10/2019 18/10/2019 01:09:27 :::

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation