TMI Blog2006 (11) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... d Medical College, New Delhi (2) Dr. R.K. Wright, 1000 Duck's, Nest Road, Turtletown, TN 37391, (USA) and (3) Mr. P.K. Satyanathan, District Government Pleader, District Court, Civil Lines, Nagpur. The prosecution case is that the applicants are facing trial for the offences under Sections 302, 376(2)(g), 201 read with Section 34 of Indian Penal Code. The crime was registered with Jaripatka Police Station, Nagpur (Maharashtra), but by the order of Apex Court, the trial of the case has been transferred to Sessions Judge, Chhindwara. The incident is dated 28-3-1994. It is said that a maid servant viz. Manorama Kamble, who was employed at the house of accused/applicant, was found dead in the house. A report was lodged by them that she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have preferred this revision. Learned Counsel for the applicants submitted that under the provisions of Section 233 of the Criminal Procedure Code, accused have right to adduce any evidence, they may have in support of their defence. If accused applied for issue of any process for summoning any witness to attend the evidence, the Court is bound to issue such process, unless it considered, for the reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Counsel submitted that in the case in hand, the prosecution has led evidence to prove that the injuries found on the hand of the deceased was not an electrical shock injur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He submitted that during examination of PW-50, Dr. Pandey, Histopathologist, it was observed by the Court that Dr. Pandey, who had two wax blocks and four slides of skin sample, shall produce the same before the Court, if defence counsel informs that he has arranged the expert and the apparatus to examine the said record on any fixed date. Counsel submitted that the defence can examine blocks and slides through its experts and on the basis of such examination, the experts of the defence can give evidence before the Court. In view of the liberty given by the trial Court by order dated 5-8-1997, passed during the cross-examination of Dr. Pandey, the defence had moved an application on 4-2-2006 seeking a direction to prosecution to arrange t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d so far production of witness is concerned. This right of the accused is not a mere formality but it is an essential part of a criminal trial. Every opportunity has to be given to the accused so that he may adduce evidence in his defence. The Court in the trial has to ensure that the accused gets a fair and proper opportunity to defend himself... The right given to accused for getting the witnesses summoned to whom he wants to examine in his defence is a statutory right which has been recognized in the Court and given to accused to defend after the prosecution has closed its evidence and accused has been called upon to enter his defence. When the accused exercise such defence, the Court is obliged to summon such witness he wants. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sses then it is the bounden duty of the accused if he wants to prove his defence to adduce evidence in support of his contentions and if he does not do so, he has only to thank himself for it. In the case of Bai Diva (supra), Bombay High Court held that even where a doctor has not examined the patient and his evidence as an expert is based on probabilities, still he as an expert is entitled to answer all hypothetical questions put to him. The only safeguard being that the hypothesis are correctly put to the expert. In the case of Ashok Dubey (supra), this Court observed that the medical witness when called an expert is not a witness of fact, his evidence as an expert is evidence of opinion, which the Court may or may not accept, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of USA, is devoid of merit. There is no provision in the Code to restrict the right of accused to examine the witnesses who only live in India. Merely on the ground of residence of a witness outside the India, the right of accused to summon and examine him in his defence cannot be curtailed. The trial Court has also committed error in refusing to summon witness P.K. Satyanathan on the ground that he happened to be the Government Pleader in District Court, Nagpur and that he had appeared on behalf of State in the bail application filed by the accused. On the ground of his appearance as an Advocate in the case, he cannot be held to have been dis-entitled from being a competent witness if his evidence is otherwise relevant. Applicants cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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