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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 MaharashtraBOOKS REFERRED

I. The Law of Evidence, Ratanlal & Dhirajlal, 2009II. Law of Evidence, Vepa P. Sarathi, 2008

III. The Law of Evidence, M. Monir, 2010IV. Sarkar, Law of Evidence, 2 vol., 2010V. The Law of Evidence, Batuklal, 2009

VI. The Law of Evidence, Ratanlal & Dhirajlal, 23rd edition, 2010ACTS REFERRED

Indian Evidence Act, 1860

WEBSITES

1. www.manupatra.com2. www.lawriot.com

LIST OF ABBREVIATIONS

http://www.manupatra.com/http://www.manupatra.com/http://www.lawriot.com/http://www.lawriot.com/http://www.lawriot.com/http://www.manupatra.com/

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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

SCSupreme Court

SCC - Supreme Court Cases

u/s - Under Section

v. - Versus

Vol.Volume

SUMMARY OF FACTS

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1. The appellant isPraful 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, whois 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 conditionthat it would be performed by the Respondent.

6. On 22nd December 1987 one Dr. A. K. Mukherjee operates on thecomplainant's wife.

7. After the surgery when the stomach is opened ascetic fluids oozes outof 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 dayfor 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 aninquiry, hold the Respondent guilty of negligence and strictly warns

him.

11.On a complaint by the complainant a case under Section 338 read withSections 109 and 114 of the Indian Penal Code is registered against

the Respondent and Dr. A. K. Mukherjee. Process is issued by theMetropolitan Magistrate, 23rd Court, Esplanade, Mumbai.

12.The Respondent challenges the issue of process and carried thechallenge 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 CriminalApplication filed by the Respondent.

STATEMENT OF ISSUES

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I. Whether evidence can be recorded by videoconferencing under section 3 of Indian evidence act.

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 undersection 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 unjustifiedfailure 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, onecan 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 thepresent 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 declare-

That 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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