ABID Vs. STATE

JUDGEMENT

(1.) Mohd. Abid, the petitioner has been charged for murder under Section 302- I-P-C. of Police Station Haus Qazi, Delhi vide F.I.R. No. 174/90. The prosecuticr case is based on the fact that one Mohd. Zakhir informed the police about the stabing incident which is alleged to have taken place on 18th June, 1990 at about 11.51 P.M. on a road near Hamdard Dawakhana, Gali Mir Afzal, Hauz Qazi, Delhi. It is the case of the prosecution that the said knife blow was given by the petitioner to the deceased Shamimuddin. The complainant, Mohd. Zakhir removed the injured to L.N.J.P. Hospital where he died on the same night. After the framing of the charge, prosecution examined some witnesses in support of its case. The doctor who filed the M.L.C. has also been examined as Public Witness 16.

(2.) It is the case of the petitioner that on the said M.L.C. nowhere it is mentioned that the history was given by the injured, but the doctor when appeared in the wilness box has volunteered an information that the M.L.C. was filled on the information given by the injured/patient. The said Dr. Harish Kapoor was questioned by the accused to the effect that whenever history is given by the injured, it is so mentioned the M.L.C. But in this case it is not so done therefore, his oral testimony shold not be taken on record. In order to prove his point that whenever the history is given by the injured or the deceased, it is so mentioned on the M.L.C. the petitioner wants to produce such a record in order to confront this witness, but the learned Adl Sessions Judge has rejected this request.

(3.) It is against this order the present petition has been filed. This has been contested by the counsel for the State. Mr. R.D. Jolly on the ground that Dr. Harish Kapoor cannot be recalled for the purposes of confronting with the documents. The petitioner ought to have confronted him when he appeared in the witness box. I find no merit in this submission of Mr. Jolly. It is the case of Mr. I. U. Khan that he can prove it by confronting from other M.L.C's recorded by Dr. Harish Kapoor that whenever the history was given by the injured it was so recorded on the M.L.C. But when the history is not given by the injured himself then no mention of the same is made as in the present case. This according to petitioner will he a material factor for consideration. The petitioner who happened to be charged with an offence under section 302-I.P.C. should not he deprived of his right to bring on record the contradiction if any. Mr. Khan contended that to bring home his point he put a question to this witness that whenever history is given by the patient is is so mentioned in the M.L.C,. hut this fact has been denied by the doctor in answer to his question. In view of this question put and the answer given by the doctor it has become necessary that an opportunity should be given to the petitioner to place on record all those M.L.C's issued by this very Dr. Harish Kapoor in which he has mentioned that the history has been given by the patient himself. These M.L.C's he wants to show to the witness in order to challenge his veracity and for the purposes of contradieting the testimony of the doctor. It is in the mierest of Justice and fairplay that opportunity ought to be granted to the accused for confronting this doctor with his other M.L.C's issued by him in which such a factum is mentioned.