IMPORTANT POINTS
A material witness needs to be summoned.
Age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness.
A foreign national witness can be summoned/ his evidence recorded as per section 284 and 285.

JUDGMENT :

DINESH MAHESHWARI, J.

Leave granted.

2. In Sessions Case No. 05 of 2015 in the Court of Additional Sessions Judge Ratangarh, District Churu (Rajasthan), the accused-respondent No. 2 is facing trial for offences under Sections 302, 304-B and 498-A of the Indian Penal Code (‘IPC’) due to the death of his wife under unnatural circumstances in Nigeria. The appellant, mother of the deceased, moved an application under Section 311 of the Code of Criminal Procedure (‘Cr.P.C’) in the said case, seeking summoning of one Dr. I. Yusuf (who had conducted first postmortem of the dead-body of the appellant's daughter in Nigeria) through High Commission of Nigeria or to record his evidence through video-conferencing, after issuing a commission for the purpose.

2.1. By its order dated 31.05.2018, the Trial Court rejected the application so moved by the appellant, essentially for reasons that the trial was pending for almost 8 years; and that it was not necessary to record the statement of Dr. I. Yusuf because a copy of the post-mortem report prepared by him had already been exhibited. The appellant attempted to question the order so passed by the Trial Court before the High Court of Judicature for Rajasthan at Jodhpur in Criminal Miscellaneous Petition No. 2282 of 2018. However, the High Court dismissed the said petition by its impugned order dated 02.08.2018 with the observation that there was no reason to interfere in the exercise of discretion by the Trial Court. Aggrieved, the appellant has preferred this appeal by special leave.

3. The background aspects, so far relevant for the present purpose, could be noticed, in brief, as follows:

3.1. The prosecution case is that the deceased daughter of the appellant was married to the accused-respondent No. 2 on 21.04.2008 at Rajaldesar; she was residing in her matrimonial home along with father and mother of her husband; and later on she had shifted to Bangalore and then to Nigeria with her husband but was regularly harassed with demand for dowry. It is alleged that on 14.01.2010, the appellant's daughter, while living with her husband (the accused-respondent No. 2) in Nigeria, died under unnatural circumstances when she was found hanging from the ceiling fan in her room. An FIR bearing No. 10 of 2010 was lodged at Police Station Rajaldesar, District Churu by the husband of appellant (father of the deceased), alleging, inter alia, that his daughter was harassed with persistent demands for dowry and she was subjected to cruelty to the extent that it ultimately led to her death in Nigeria.

3.2. The first post-mortem of the dead-body of the appellant's daughter was conducted by Dr. I. Yusuf in Aminu Kanu Teaching Hospital, Nigeria on 16.01.2010 who, upon examination, stated his opinion that the cause of death was "asphyxia secondary to strangulation". Thereafter, the dead-body of the appellant's daughter was brought to India where a Medical Board was constituted for further post-mortem but the Medical Board stated that no definite opinion could be formed regarding the time and cause of death of the daughter of the appellant. After investigation, charge-sheet was filed against the respondent No. 2 for the offences under Sections 302, 304-B and 498-A IPC.

3.3. In the trial, the prosecution led its evidence and various witnesses were examined but as the members of the Board were unable to give any definite opinion as to the cause of death, an application under Section 311 Cr.P.C was moved by the appellant, for issuance of summons to the said Dr. I. Yusuf, Department of Pathology, Aminu Kanu Teaching Hospital, Nigeria, who had first conducted the post-mortem of the dead-body of the appellant's daughter in Nigeria, so that he may be examined as a medical witness. It was also submitted in the alternative that the evidence of the said doctor may be recorded through video-conferencing.

4. As noticed, in its impugned order dated 31.05.2018, the Trial Court rejected the said application while observing that