Kishore vs State

Petitioner has preferred this misc. petition under Section 482 of Cr.P.C. claiming the following relief :-

"अत आपराधिक विविध प्रार्थना पत प्र्रस्तुत कर निवेदन है कि आदेश दिनांक 20.09.2018 विद्वान अपन सेशन न्यायाधिश महिना उत्पीडन प्रकरण जोधपुर जो मूल सेशन संख्या 41/ 2015 राज्य बनाम किशोर में पारित किया गया है स्पष्ट रूप से न्यायिक प्रक्रिया का दुरूपयोग होने से निरस्त करने काबिल है। अत आदेश दिनांक 20.09.2018 निरस्त कर डाक्टर जिसने सर्वप्रथम मुतका को एम. डी. एम. अस्पताल में भर्ती किया था तथा डाक्टर जगदीश जूगतावल सेवानिव्र्रत मेडिकल ज्यूरिस्ट एमजीएच हॉस्पिटल जोधपुर को तलब कराने संबधी प्रार्थना मंजूर की जावे श्रीमान जी की अति क्रपा होगी।"

Learned counsel for the petitioner has shown the statement of Dr. Narendra Vaishnav, Dr. Sunil Garg and Dr. Amit Srivastava.

Learned counsel for the petitioner has vehemently argued that the issues of gangrene to the patient and the medical opinion required consideration of the application moved by the petitioner under Section 233 of Cr.P.C.

Counsel for the petitioner submits that since the case itself rests upon the specialized medical opinion of Dr. Jagdish Jugtawat, therefore, it was appropriate that the court below should have called medical jurist Dr. Jagdish Jugtawat and the surgeon who could give definite conclusion regarding the medical condition.

Learned counsel for the petitioner has further averred that the calling of the doctor giving the first treatment was also important, as it was the first level of examination by the medical specialist and would throw light upon the facts of the case.

Learned Public Prosecutor however, submits that three experts doctor have been examined and the petitioner got ample opportunity to cross-examine these doctors, and therefore, the calling of any more medical evidence through doctors would not be justified.

Learned Public Prosecutor also submits that impugned order is justified, as the required information about the medical condition has been clearly revealed by these three doctors and they have been examined.

In the rejoinder argument, learned counsel for the petitioner has demonstrated from the medical report issued on 15.05.2015 that the Laxmi was having six injuries / wounds.

Learned counsel for the petitioner has also demonstrated from the evidence rendered by the witnesses of the prosecution that there was no express injuries / wounds on the body of Laxmi.

After hearing learned counsel for the parties and perusing the record of the case, this Court finds that there is an apparent dispute / conflict in the medical opinion and the post- mortem report. Though it was open for the petitioner to have cross-examined the earlier doctors regarding the post-mortem report but the situation of difference of opinion clearly indicates that the application to the extent of calling of the medical jurists Dr. Jagdish Jugtawat should have been allowed by the learned court below. The learned Court below in the impugned order has not been able to justify that the petitioner had ample opportunity to justify the conflict in the post-mortem report and the medical opinion.

In light of the aforesaid observations, the present misc. petition is allowed to the limited extent and while modifying the impugned order dated 20.09.2018, learned court below is directed to call Dr. Jagdish Jugtawat (Rtd.) medical jurists MG Hospital, Jodhpur, as a witness, as sought by the petitioner.