Farooq Ahmad vs State of J & K

This revision petition impugns the order date 11.11.1998 passed by Additional Sessions Judge Srinagar, in Session Trial No.23 of 1996 titled

State Vs. Farooq Ahmad Bazaz and others for the offence punishable under section 302,324 read with section 34 R.P.C. on the allegation that on

26th April 1996, the accused in the case having the common intention to cause murder of one Zubiar Paktoon caught hold of him at Pushkar

Karigan and subjected him to such a physical assault that led to causation of a fatal injury on his head as the result of the below of lathi by accused

Farooq Admad.

On the accused pleading not guilty to the charges, the prosecution examined its listed witnesses which included the medical expert namely

Dr.Qazi Javid Ahmad who had conducted autopsy on the dead body of the victim of the alleged murderous assault. After examination of the

accused under section 324 Cr.P.C., they opted not to adduce any evidence in defence. Case was argued and the judgment reserved.

While preparing the judgment the learned trial judge felt that the medical expert, Dr. Qazi Javid Admad had not been examined with respect to

those aspects of his opinion which were very relevant for the just decision of the case and consequently the learned Judge in exercise of this

powers under section 540 Cr.P.C, directed through the impugned order, the recalling of the said witness so as to elicite his opinion on two

pertinent points; namely, whether the lathi seized by the police as the alleged weapon of crime was a sharpedged weapon, and secondly whether

the fatal injury could he inflicted by a sharp or by a blunt edged weapon.

The accused are aggrieved of the impugned order as they feel that the recalling of the medical witness tantamounts to the filing up of the lacuna

to their prejudice. Reliance is sought to be placed in this context on the decision in the case Younis Khan and others Vs. State (SLJ 1990 J and K

204) to canvass that once the prosecution evidence gets closed the witness(s) cannot be recalled to fill up the lacuna in the evidence.

The judgment in Younis Khan's case is not applicable to the facts and the circumstances of this case. In the reported case it was at the bidding

of the prosecution that the trial Magistrate by exercise of his powers under section 540 had allowed the prayer for summoning of certain witnesses

for the prosecution and that too after the prosecution evidence had been dosed. Put in other words the Magistrate had exercised his powers in that

case under partone of section 540 Cr.P.C. and this court held that the exercise of the lower by the magistrate was unwarranted and illegal. This

order to that effect was thus clashed.

In the case at hand the factual matrix on which the impugned order is based is totally different. The trial judge has in this case felt, of its own, that

further examination of the medical witness was necessary for the just decision of the case and accordingly the learned Judge exercised the powers

under the second part of the section. The ratio of Younis Khan's case, supra, is therefore, not applicable to the present case.

Section 540 is in two parts. The word ""may"" used in the first part gives purely discretionary authority to the criminal court to enable, it at any

stage of any enquiry, trial or other proceedings under the code, to summon any one as a witness or to examine any person present in the court or

to recall and reexamination any person whose evidence has already been recorded. In the second part of the section, word ""Shall"" is used which

can notes that the court is obliged to take any of the above said steps if such evidence appears to it as essential for the just decision of the case.

While doing justice, the court cannot contain itself by finding fault with the prosecution agency. The role of the Presiding Judge, is something

more than an Umpire or referee in games played. In the court proceedings the presiding judge has got to be alert, active and positive to participate

and cannot afford to be a bystander watching the game to declare the points or the runs. That is why the second part of Section 540 does not

allow for any discretion. It binds the court to examine evidence by calling, recalling or summoning of witness (S)/documents when it appears that

such evidence is essential to the just decision of the case. The important consideration which the court has to keep in mind while invoking the

provisions of this section is that power under it shall not he exercised just to fill up the gaps in the prosecution case. There is an exception to this

caution as well. If the court comes to the conclusion that certain evidence is essential for the just decision of the case, the mere fact that recording

of such evidence will have the effect of filing up the gaps will not debar the court from examining the witness, to bring out that evidence which is

material and essential for that decision.

In the case at hand the statement rendered by the medical expert, Dr. Qazi Javed Ahmad, does not show it that the doctor's opinion had been

elected/obtained under examination or crossexamination about the nature of the weapon of crime, that is the ""lathi"". This question is on the face of it

not only relevant but essential to decide whether the alleged fatel injury as notice on the dead body could have been inflicted by the weapons

seized. It is in this context pertinent to note that the fatal injury was in the opinion of the doctor and incised wound associated with communicated

fracture of parietal and temporal bone, involving the brain matter and damage to the celebral artery. The weapon that is said to have caused this

injury was allegedly the seized lathi. The injury being incised wound ought to have lead to the question to the medical expert as to the nature of the

weapon used in inflicting the wound.

The doctors opinion and the reasons for such opinion about the nature of the weapon seized as the crime weapon has not been obtained, while

he was on the stand. In that circumstance and on the facts the learned Judge rightly exercised the jurisdiction under the second part of section 540

Cr.P.C. to recall the medical witness for examination about his opinion as to opinion as to the nature of the weapon.

General Criminal Rule provide a set of questions under Rule No.9 of chapterXIII for the guidance for examination of medical witnesses in the

case of alleged death by wounds or blows after post mortem examination. This set of questions is not exhaustive, but is illustrative meant to impress

upon the presiding Judges to be alert and to participate in the conduct of the proceedings by putting these questions to the medical witness. One of

the questions that is required to be put to the medical witness is as to what sort of weapon could, in his opinion, inflict the wound and weather the

weapon seized could have inflicted it. A presiding judge is obliged under the Rules to see to it that all the questions suggested under the Rule are

put to the medical witness, lest miscarriage of justice occures. It perhaps need not be reemphasized that while trying the case of the nature as at

hand, the presiding judge is duty bound to be watchful that in no case do the questions that are relevant as to the experts opinion, as also the

reasons for that opinion, get omitted and the statement of such a witness becomes unhelpful to reach the just conclusion in the trial.

The aforesaid observation are made in the context, that having been not vigilant while the medical witness, Dr. Qazi Javed Ahmad, was at the

stand the presiding judge awoke to the need to recall him, so as to obtain his opinion, as such expert, about the nature of the alleged weapon of

offence. It has thus become a case of right exercise of jurisdiction under second part of section 540 of the Code. The learned Judge, has record

the impugned order so as to recall the medical witness for further examination with respect to the nature of the alleged weapon. This was in the

circumstances not only a relevant question hut an essential one as well. I am in no way convinced to subscribe to the view, projected for the

accused, that the order is a step further to fillup the lacuna in the prosecution evidence. It is a missnomer that the exercise of discretion to summon

or recall a witness under section 540 is improper because his evidence will support the case of the prosecution and not that of the accused. The

power under the section may be exercised for the benefit of the either.

For the reasons aforesaid, this revision motion is hold to he misconceived and unwarranted. It is, as such hereby rejected. The record will go

back forthwith to the trial court for further proceedings. To accused who are in custody be get produced before the trial judge on 9th of march,

1999.