IN THE SUPREME COURT

In the matter of

The State Of Maharashtra ..

(Appellant)

Vs.

Dr. Praful B. Desai

(Respondent)

Written Submission on behalf of the Appellant

Shikha Gupta Counsel for Appellant

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TABLE OF CONTENTS

INDEX OF AUTHORITIES..3 LIST OF ABBREVIATIONS4 STATEMENT OF JURISDICTION...5 SUMMARY OF FACTS6 STATEMENT OF ISSUES.7 SUMMARY OF ARGUMENTS.8 ARGUMENTS ADVANCED.9 PRAYER..13

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INDEX OF AUTHORITIES

CASES Sri Krishna Gobe versus State of Maharashtra BOOKS REFERRED I. II. III. IV. V. VI. The Law of Evidence, Ratanlal & Dhirajlal, 2009 Law of Evidence, Vepa P. Sarathi, 2008 The Law of Evidence, M. Monir, 2010 Sarkar, Law of Evidence, 2 vol., 2010 The Law of Evidence, Batuklal, 2009 The Law of Evidence, Ratanlal & Dhirajlal, 23rd edition, 2010

ACTS REFERRED Indian Evidence Act, 1860 WEBSITES 1. www.manupatra.com 2. www.lawriot.com

LIST OF ABBREVIATIONS

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Anr. - Another Co. -Company Ed. - Edition Honble - Honourable i.e. - That is Ibid - At the same place J. - Justice Ltd. - Limited No. - Number Para - Paragraph Pg. - Page Pvt. - Private Rep. - Reprint Rev. - Revised Sec. - Section HC - High Court SC Supreme Court SCC - Supreme Court Cases u/s - Under Section v. - Versus Vol. Volume

SUMMARY OF FACTS

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1. The appellant is Praful B. Desai. 2. The complainant's wife is suffering from terminal cancer. 3. The complainant's wife is examined by Dr. Ernest Greenberg of Sloan Kettering Memorial Hospital, New York, USA, who opined that she is inoperable and should be treated only with medication. 4. Thereafter the complainant and his wife consults the Respondent, who is a consulting surgeon practising for the last 40 years. In spite of being made aware of Dr Greenberg's opinion the Respondent suggests surgery to remove the uterus. 5. The complainant and his wife agree to the operation on the condition that it would be performed by the Respondent. 6. On 22nd December 1987 one Dr. A. K. Mukherjee operates on the complainant's wife. 7. After the surgery when the stomach is opened ascetic fluids oozes out of the abdomen. Following this, Dr. A. K. Mukherjee contacts the Respondent who advise closing up the stomach and accordingly closes the stomach and this resulted in intestinal fistula. This surgery results in complications to the wife whenever she ate or drank. 8. Following this the complainant's wife requires 20/25 dressings a day for more than 3 1/2 months in the hospital and thereafter till her death and suffers terrible physical torture and mental agony. 9. In the present case the Respondent claims that the complainant's wife was not his patient. 10.In the present case the Maharashtra Medical Council has, in an inquiry, hold the Respondent guilty of negligence and strictly warns him. 11.On a complaint by the complainant a case under Section 338 read with Sections 109 and 114 of the Indian Penal Code is registered against the Respondent and Dr. A. K. Mukherjee. Process is issued by the Metropolitan Magistrate, 23rd Court, Esplanade, Mumbai. 12. The Respondent challenges the issue of process and carried the challenge right up to this Court. The Special Leave Petitions filed by the Respondent is dismissed by this Court on 8th July 1996. 13.This Court directs the Respondent to face trial. 14.On 29th June 1998 the prosecution makes an application to examine Dr. Greenberg through video-conferencing. The trial court allows that application on 16th August 1999. The Respondent challenges that order in the High Court.
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15. The High Court has by the impugned order allowed the Criminal

Application filed by the Respondent.

STATEMENT OF ISSUES

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I.

evidence can be recorded by video conferencing under section 3 of Indian evidence act.

Whether

SUMMARY OF ARGUMENTS
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That video conferencing can be included as Evidence under the Indian Evidence Act, Section 3 In the present case it is clearly mentioned in Section 3 of the Evidence Act it is given that the evidence can be in the electronic for m as well as per the section mentioned below: "Evidence----Evidence means and includes-----(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence (2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence"

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ARGUMENTS ADVANCED
I. That the video conferencing can be included as evidence under section 3 of the Evidence Act.

in the present case as per section 3 the video conference is permitted in the court as a valid evidence. The section 3 of the evidence act read as follows: "Evidence----Evidence means and includes-----(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence (2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence" Thus evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video- conferencing. It is to be brought to notice that to set out the approach which a Court must adopt in deciding such questions. It must be remembered that the first duty of the Court is to do justice. As has been held by this Court in the case of Sri Krishna Gobe versus

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State of Maharashtra1 Courts must endeavour to find the truth. It has been held that there would be failure of justice not only by an unjust conviction but also by acquittal of the guilty for unjustified failure to produce available evidence. Of course the rights of the Accused have to be kept in mind and safeguarded, but they should not be over emphasized to the extent of forgetting that the victims also have rights. It is also submitted that video conferencing has nothing to do with virtual reality. Advances in science and technology have now, so to say, shrunk the world. They now enable one to see and hear events, taking place far away, as they are actually taking place. To take an example today one does not need to go to South Africa to watch World Cup matches. One can watch the game, live as it is going on, on one's TV. If a person is sitting in the stadium and watching the match, the match is being played in his sight/presence and he/she is in the presence of the players. When a person is sitting in his drawing-room and watching the match on TV, it cannot be said that he is in presence of the players but at the same time, in a broad sense, it can be said that the match is being played in his presence. Both, the person sitting in the stadium and the person in the drawing-room, are watching what is actually happening as it is happening. This is not virtual reality, it is actual reality. One is actually seeing and hearing what is happening. Video conferencing is an advancement in science and technology which permits one to
1

[(1973) 4 SCC 23]

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see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. In fact he/she is present before you on a screen. Except for touching, one can see, hear and observe as if the party is in the same room. In cases where the witness is necessary for the ends of justice and the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case would be unreasonable, the Court may dispense with such attendance and issue a commission for examination of the witness. As indicated earlier Dr. Greenberg has refused to come to India to give evidence. His evidence appears to be necessary for the ends of Justice. Courts in India cannot procure his attendance. Even otherwise to procure attendance of a witness from a far of country like USA would generally involve delay, expense and/or inconvenience. In such cases commissions could be issued for recording evidence. Normally a commission would involve recording evidence at the place where the witness is. However advancement in science and technology has now made it possible to record such evidence by way of video conferencing in the town/city where the Court is. Thus in cases where the attendance of a witness cannot be procured without an amount of delay, expense or inconvenience the Court could consider issuing a commission to record the evidence by way of video conferencing. So it is clear from the circumstances and as per the section 3 all
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kinds of electronic evidence can be included in th e proceedings as it is necessary for punishing the respondent in the present case and will help the Hon ble court to provide justice to the victims in the present case.

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PRAYER

Wherefore in the light of issue raised, arguments advanced, reasons given and authorities cited, the council of respondent humbly pray and implore this Honble court to declareThat the court should consider video conferencing as evidence and convict The Respondent shall pay to the State and the complainant the costs of these Appeals, or Pass any other order that this court may deem fit in the interests of justice, equity and good conscience.

Shikha Gupta Counsel for Appellant

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