Dr. Achal Sepaha vs State of M.P.

Shubhada R. Waghmare, J.—By this petition u/s 397 of the Cr.PC, the petitioner Dr. Achal Sepaha has challenged the order dated 29-3-2011 passed by the IXth ASJ, Indore, in Criminal Appeal No. 250/2010 dismissing the application filed by the petitioner u/s 391 of the Cr.PC for taking additional evidence on record. The brief facts of the case in a nutshell are that the petitioner had filed an appeal against his conviction for offence u/s 304-A of the IPC, the Trial Court had convicted him and sentenced him to 3 months'' R1 and fine of Rs. 1000/-. The appeal was filed before the Sessions Judge, Indore and it came up about that during the course of the appeal; Counsel for the petitioner submitted that Dr. D.S. Badkur (P.W. 4) had been examined as an expert witness in the case, certain documents though introduced at the trial stage were not proved and exhibited and this vitally affected the defence of the petitioner. Counsel submitted that the petitioner is a Consultant Nephrologist at the Choithram Hospital and Research Centre, Indore and had secured a degree in the MBBS in the year 1975 from MGM Medical College at Indore. Besides doing Post Graduates Course at Bombay University he had also taken experience in the United Kingdom as well as United States of America and was specialised in kidney transplant and was the Consultant Nephrologist at the Choithram Hospital and Research Centre at the relevant time. Whereas the complainant husband of the deceased Mr. Jagat Narayan Chaube had filed a false and frivolous case against the petitioner and the learned Trial Court had relied on the testimony of Dr. D.S. Badkur (P.W. 4), before whom the entire documents regarding the medical treatment of the patient Mrs. Vimla Chaube were placed. On cross-examination he had deposed before the Court only relying on the 39 pages provided by the police. Counsel vehemently urged that the patient suffered from multiple ailments like diabetes Diabetic Nephropathy, Hypertension, Chronic Renal Failure, Pleural Effusion and Poor Cardiac Status. Similarly, if the Nurses Daily Record, intake output chart, medication sheets, temperature chart and peritoneal dialysis sheet, which were not proved and marked as exhibits would have been considered. And then doctor could have been cross-examined on these documents specifically to appreciate the fact that the patient was already a terminal case and there had been no negligence on the part of the petitioner accused.

Similarly, Counsel stated that certain proceedings before the National Consumer Disputes Redressal Commission at Delhi for reference letter dated 11-8-96 from the Dr. D.K. Agarwal (P.W. 7) of Mayo Hospital at Bhopal was filed by the complainant himself. This letter clearly reveals that the complainant had made incorrect and false statement regarding the condition of the deceased/patient when she was first brought to the Choithram Hospital. The letter indicates that the petitioner had already been referred to Chennai for a kidney transplant before she was admitted to Choithram Hospital for the first time. And thereby indicating that the deceased was brought to the accused petitioner only for the purpose of tissue matching when the complainant''s intention was to take her to Chennai for kidney transplant. This important document (letter dated 11-8-96) came into the hands of the petitioner in the closing stages of the trial and therefore, it could not be exhibited.

Counsel, therefore, vehemently urged that all these documents were of vital importance to the defence of the accused and therefore, he had made an application u/s 391 of the Cr.PC whereas the learned Judge of the Appellate Court has interpreted this application to be dilatory tactics by the petitioner. However, these documents were essential and therefore the application u/s 391 ought to be allowed. Counsel relied on two judgments by our own High Court in the matter of Jaggnath and others Vs. State through P.S. Bilpank, in Cri.A. No. 441/95 and Abid and others Vs. State of M.P., Criminal Appeal No. 210/09, whereby this Court had considering the nature of the relief and the aims and objectives of this Court regarding additional evidence at late stage had also placed reliance on Ratilal Bhanji Mithani Vs. State of Maharashtra and Others, held that when for just decision of the case and for digging out of truth regarding the additional evidence is essential, then the application ought to be allowed and the imperative questions could be asked of the relevant witness. Counsel prayed that the benefit be granted in the present case also and prayed for setting aside the impugned order and directions for allowing the evidence to be taken.

Counsel for the respondent/State, per contra, has stated that there was no infirmity in the order passed by the Appellate Court, the specific finding of the Trial Court are based on application of mind judiciously; so also the Appellate Court according to the Counsel has considered the fact that it is not the case of the petitioner that the witness Dr. D.S. Badkur has not been examined at all; in fact, the medical documents were examined in detail and the Counsel for the accused has cross-examined him in detail. The other documents before the Consumer Forum were not at all relevant in the trial and hence were clear object of prolonging the trial. The incident is of the year 1996 and it was apparent that lacunae in the trial cannot be now filled at the appellate stage. Counsel prayed for dismissal of the petition. On considering the above submissions, I find that undoubtedly a long time has elapsed since the date of the incident, the trial as well as the appeal. However, delay should not defeat justice. Dr. Sepaha the accused petitioner as an eminent Surgeon and fair trial to each person is guaranteed by our Constitution. Besides considering the Supreme Court dictate in the matter of Ratilal Bhanji (supra), I find that the Court has observed that this Court in the case of conviction, can direct for taking additional evidence in the interest of justice and fair play rather than take a different view of the oral evidence and when such a document and recording of additional evidence of witness Dr. Badkur (P.W. 4) is essential for digging out the truth then one chance ought to be given to the petitioner accused. However, considering that the complainant has also suffered long trial, it is directed that cost of Rs. 5,000/- shall be paid to the complainant Jagat Narayan Chaube by the accused within a period of 15 days from the date of this order, subject to which it is directed as follows:-

The impugned order is hereby set aside. Without taking any observation on the merits of the case it is directed that the petitioner shall be given a single opportunity to examine Dr. Badkur and adduce additional evidence regarding the documents mentioned in the application and letter dated 11-8-96 on the same date.

With these aforesaid directions, the petition is allowed to the extent herein above indicated.