SANJAY SHANKAR BHALKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Present petition has been filed by the original accused persons challenging the order in deposition of P.W.18 (Exhibit 215) in para No.14 and 15 in Sessions Case No.153 of 2015, by learned Additional Sessions Judge, Aurangabad on 04-10-2019. Application No.3620 of 2019 has been filed by the original informant for intervention.

(2.) The present petitioners­original accused persons are facing charge under Section 302 read with 34 of Indian Penal Code in the said case. The prosecution has examined P.W.18 Dr. Kailash Zine who had conducted the autopsy. His examination-in-chief is complete and he is under cross-examination. It is contended in the petition that, the post mortem report is exhibited as Exhibit 216 and the diagram of injuries sketched and appended to the report are at Exhibit 217. P.W.18 Dr. Kailash Zine had brought file of treatment papers of the deceased and produced it before the Court before the commencement of cross-examination of the said witness as those papers were required by the defence. It is stated that, in post mortem report Exhibit 216 in column No.5 it is stated that the deceased was admitted to Government Medical College and Hospital, Aurangabad in unconscious state at about 12.45 hours on 14-03- 2015 and during treatment he died on the same day around 16.05 hours in the hospital. It is stated that, the said fact is contrary to the file of treatment on record, and therefore, the learned defence advocate wanted to cross-examine the said witness in respect of those papers. When the questions were asked, the learned Special Public prosecutor had taken objection that, the said witness has no knowledge about the contents of the document and he cannot depose in respect of those documents. The learned Judge has upheld the said objection and has not allowed the witness to answer certain questions. The learned Judge had surprisingly endorsed the scope of the evidence of the witness that it is restricted only to post mortem report Exhibit 216, diagram Exhibit 217, and death certificate Exhibit 218. It is stated that, the defence had not put any questions regarding treatment given to the deceased, and therefore, the learned Judge ought not to have restricted and prevented the defence from putting further questions in respect of the documents. Though the Judge may come to a conclusion that, the question is not relevant at that stage, however possibility cannot be ruled out that the said question may become relevant at the later stage, and therefore, based on the decision in Bipin Shantilal Panchal v. State of Gujrat And Another, reported in (2001) 3 Supreme Court Cases 1 : 2001 Supreme Court Cases (Cri) 417, it was requested to the Court that, all the questions be taken and subject to objections the answers be taken and then the relevancy or admissibility of the questions may be later on considered. But then rejecting the prayer of the advocate for the defence to put certain questions will not amount to fair trial and, hence, prayer is made for setting aside the impugned order and direction have been sought to the trial Court to record all the questions ans answers given by the witness during the cross- examination.

(3.) Heard learned advocate Mr. S. G. Ladda for petitioners and learned Additional Public Prosecutor Mr. A. A. Jagatkar for respondent ­ State assisted by learned advocate Ms. Rashmi S. Kulkarni for the informant who filed application No.3620 of 2019 for intervention.