Dharmendra vs State of U.P. and Another

S.C. Agarwal, J.—Heard learned Counsel for the applicant, Sri Ram Shiromani Yadav, learned A.G.A. for the State and perused the material available on record.

This application u/s 482, Cr. P.C. has been filed with aprayer to quash the order dated 7.2.2011, passed by Additional Sessions Judge, Fast Track Court No. 2, Baghpat in S.T. No. 288 of 2009, State v. Dharmendra, under Sections 363, 366 and 376, I.P.C., P.S. Binauli,district Baghpat, whereby application u/s 311, Cr. P.C. moved by accused-applicant for summoning Radiologist Dr. P.K. Sharma was rejected.

According to prosecution allegations, the age of the prosecutor was about 14 years. During investigation, the prosecutor was medically examined by Dr. Neera Pawar (P.W. 3) and at her instance, x-rays were taken by Radiologist Dr. P.K. Sharma and on the report of Dr. P.K.Sharma, Dr. Neera Pawar prepared supplementary medical report, which ibex. Ka-3.

The contention of learned Counsel for the applicant is that Radiologist Dr. P.K. Sharma is an important witness, who has been cited as a prosecution witness in the charge-sheet and, therefore, he should have been summoned to give evidence.

Learned A.G.A. supported the impugned order and submitted that Dr. Neera Pawar has already been examined as P.W.3. She has not only proved the injury report, but also the supplementary medical report and, therefore, examination of Radiologist Dr. P.K. Sharma is not necessary.

Since the supplementary medical report has already been proved, it isn''t necessary for the prosecution to examine the Radiologist. However, if the applicant deems the proof of report of Radiologist essential for decision of the case, he is always at liberty to admit such report u/s 294, Cr. P.C.

Learned trial court rejected the application on the ground that in the age certificate issued by Chief Medical Officer, Baghpat, the age of the prosecutor was found to be about 18 years, but the age determined on the basis of medical examination is only an estimation of age. Consequently, the application was rejected.

The observations made by learned trial court regarding medical evidence were not warranted at this stage. At this stage, the trial court was not required to ascertain the age of the prosecutor with certainty. This has to be done after final argument at the time of judgment. Therefore, these observations are premature and shall not be binding at the time of final disposal of the case. However, since Radiologist Dr. P.K. Sharma was neither examined by the prosecution nor was examined by defence in defence evidence and also keeping in view the fact that supplementary medical report based on the radiological report has also been proved, it is not necessary to examine the Radiologist in evidence. Now the defence is always at liberty to admit the report of the Radiologist u/s 294, Cr.P.C.

In these circumstances, I am not inclined to interfere in the exercise of powers vested u/s 482, Cr. P.C.

The application u/s 482, Cr. P.C. is accordingly dismissed.