The duty of the court to ensure a fair trial by summoning essential witnesses and the duty of the prosecution to disclose all dying declarations.

1. Heard Mrs. M.N. Ghanekar, the learned Counsel for the petitioner. Heard Mr. P.N. Muley, the learned Additional Public Prosecutor for the State.

2. The petitioner is the accused no.1 in Sessions Case No. 172/2010, pending before the Additional Sessions Judge-2, Aurangabad. There are three other accused in the said case, which is in respect of offences punishable under Sections 302 of the IPC, and 498A of the IPC, read with Sections 107 of the IPC and 34 of the IPC. The trial is in progress. After one witness for the defence had been examined, the petitioner made an application (Exhibit 73) praying that two witnesses, whose evidence, according to him, was necessary for a just decision of the case, be summoned by the Court as per the powers vested in it, by Section 311 of the Code of Criminal Procedure [For short, "the Code"]. This application was opposed by the Additional Public Prosecutor in-charge of the matter. The learned Additional Sessions Judge, by an order dated 20-12-2013, rejected the said application.

Being aggrieved thereby, the petitioner has approached this Court by filing the present petition invoking the constitutional jurisdiction and inherent powers of the court.

3. Considering the nature of challenge, it was thought fit to decide the petition finally at the admission stage itself. Hence, Rule was issued and was made returnable forthwith by consent. By consent, the petition has been heard finally.

4. The facts of the case and the circumstances in which the application (Exhibit 73) came to be made, may be stated thus:

The prosecution case is that, Smt. Geeta - wife of the petitioner - was set on fire by the petitioner at the instigation of the other accused which include parents of the petitioner. A statement of Geeta, recorded on 25-2-2010 at Krishna Hospital, implicating the petitioner and the other accused, formed a part of the charge sheet. That, this statement is admissible under the provisions of Section 32(1) of the Evidence Act, as her dying declaration, is not in dispute.

In the course of cross examination of the Investigating Officer, it was revealed that a statement of Geeta had been recorded by one L.R. Jadhav, a Police constable attached to Jinsi Police Station, on 23-2-2010, itself. It was revealed that, Constable Jadhav had given a letter to an Executive Magistrate requesting him to record the statement of Geeta and had also given a letter to the Medical Officer, Krishna Hospital, requesting him to ascertain the condition of Geeta and opine whether she was in a fit state of mind to make a statement.

The letters written by Constable Jadhav to the Medical Officer and to the Executive Magistrate, as also, the statement of Geeta recorded on 23-2-2010 were got produced before the court by the defence after the revelation of the said facts.

The defence thereafter claimed that ‘since they were admitting the documents in question, the documents may be marked, exhibited and read in evidence’. This was objected to by the prosecution and, therefore, such an application by the defence was rejected by the learned Additional Sessions Judge. The challenge to that order given by the petitioner, by filing a Writ Petition in this Court (Criminal Writ Petition No. 1047 of 2013, decided on 29th November 2013) also failed. The view of the trial court that, the documents could not be read in evidence, unless admitted by the prosecution was held to be proper and legal by this Court.

It is thereafter that, the application (Exhibit 73) to summon Constable Jadhav and the Medical Officer (who had made endorsement on the statement of Geeta recorded on 23-2-2010, certifying her to be fit to make a statement) and to examine them as court witnesses was made, which, as aforesaid, was rejected by the learned Additional Sessions Judge.

5. It is not in dispute that, the version of Geeta, as reflected in her statement recorded on 23-2-2010 is favourable to the accused. In this statement, Geeta had stated that she had cau