Nagamma Srimanth Kale vs State

K.N. Phaneendra, J.—Sri. Ashok Mulage undertakes to file power for Respondent Nos. 2 to 4. He is permitted to file vakalat within fifteen days.

Heard the learned counsel for the petitioner and as well as the respondents and Additional SPP for State. Perused the records.

The Respondent Nos. 2 to 4 are the accused persons in Sessions Case No. 213/2011. The petitioner is de facto complainant. It appears during the course of evidence, the de facto complainant filed I.A.No.I under section 311 of Cr.P.C. requesting the Court to summon the medical officer/doctors who have treated the victim/deceased on 28.12.2010 and issued a report about the victim conceiving a baby in her womb. This application was contested by the accused persons. The Trial Court after considering the objections rejected the said application.

The records disclose that the accused No. 1 is the husband, accused No. 2 is father-in-law and accused No. 3 is mother-in-law of victim Sridevi who was given in marriage to accused No. 1. It is the case that due to illtreatment and harassment on 18.02.2011 Sridevi committed suicide by setting herself ablaze in the house of the accused persons. After the investigation the charge-sheet was filed and the Court also framed charges for the offences under sections 498-A and 304-B of Indian Penal Code.

De facto complainant filed application. The said application was dismissed on the ground that the post-mortem examination report Ex.P-26 produced shows that foetus of 20- 22 weeks male baby found in the womb of the deceased. Therefore, when the said fact already been proved, it would not be necessary to examine any of the witnesses on behalf of the complainant again to prove the said fact. Learned counsel submitted that the complainant wants to establish before the Court that the deceased Sridevi was conceived to her husband and the age of the foetus in her womb was not of 20-22 weeks, but it was only 5 weeks two days. The fidelity of the deceased victim was the question raised before the Trial Court i.e., to say the accused persons have illtreated and harassed her on the ground that she conceived to somebody. The complainant wants to establish that the victim had conceived to her husband and the foetus was not 20-22 weeks as stated by the doctor who conducted the post-mortem Examination. The Trial Court dismissed the application.

In order to prove their cases before the Trial Court particularly during the course of trial, full opportunity should be given to the parties including the accused and the complainant. Otherwise, they will get no opportunity if the trial is concluded and judgment is passed. Whatever may be the reason whether the Court accepts the evidence of the witnesses proposed to be examined before the Court or not, however, the opportunity to the parties which is the hallmark of criminal jurisprudence should be adhered to. Under the above said circumstances, I am of the opinion that the Trial Court ought to have allowed the application.

Before parting this order, it is observed that the Trial Court allowed the learned public prosecutor to give NOC to a private advocate for the purpose of filing the application, which is a wrong procedure adopted by the learned Sessions Judge. When the Slate appointed the public prosecutor either de facto complainant himself can move the application or it should be through the learned public prosecutor. If the prosecutor is not cooperating with the complainant, the complainant can approach the Court with necessary application or approach competent authorities for appropriate remedy. Under the above said circumstances such procedure adopted by the learned Sessions Judge to be deprecated and the learned Sessions Judge is directed not to allow the said private advocate to be continued on record on behalf of the complainant. If he is not permitted under section 302 of Cr.P.C. Under the above said circumstances, the following order is passed.

ORDER

I.A. No. II filed by de facto complainant under section 311 of Cr.P.C. is hereby allowed. Consequently, the Trial Court is directed to provide an opportunity to the complainant to examine the medical officers/doctor who have treated the victim deceased on 28.12.2010. It is further made clear that the learned Sessions Judge do not continue the advocate engaged by the complainant for any purpose, if he is not permitted under section 302 of Cr.P.C. The Court to direct the prosecutor to conduct the evidence of the witnesses.