Decided on May 30,1961

Harun Rashid Alias Haroun Al Rashid Appellant
STATE Respondents


- (1.) This Rule was issued upon an application for Revision made in this Court on behalf of the two accused persons who have been prosecuted for, an alleged offence under Section 366/ 34 of the Indian Penal Code. The charge-sheet was submitted by police on March 2, 1960 against three persons but one of them has remained absconding and an enquiry under Chapter XVIII. Code of Criminal Procedure was being proceeded with against the Petitioners. Copies of some documents including copy of the report of the Radiologist were given to the accused persons under Section 173(4) of the Code of Criminal Procedure and that fact was noted in the order-sheet on April 28, 1960. Examination of witnesses commenced on May 27, 1960. On May 30, 1960, Radiologist of Calcutta Police Hospital was examined as P.W. 4 and he proved that X' ray photograph of the girl was taken and the X' ray plates were proved as Exts. I and II. On the same date Dr. S.K. Roy, the Professor of Forensic and State Medicine of Calcutta Medical College was examined as P.W. 5 and he deposed to his opinion about the age of the girl and mentioned as reasons in support of his opinion the particulars with reference to what appeared from the X' ray plate.
(2.) He said: In view of the X' ray findings, general consideration and other clinical data-all considered together-I am of opinion that Gouri Mukherjee alias Kama Debi was aged between 16 years and 17 years at date of her X' ray examination, viz., 16-11-59. Cross-examination of both these witnesses P. Ws. 4 and 5 were declined by defence on May 30, 1960. But on May 30, 1960, the two Petitioners made an application stating that no copy of the two X' ray photo plates had been supplied to the accused persons and prayed for direction on the prosecution to furnish the copies of those two documents. That application was directed to be put up on the next date of hearing that is June 7, 1960, and the application was heard on June 8, 1960. On that date an application was filed by the special Public Prosecutor, raising the contention that X' ray films are material exhibits and they were not documents within the meaning of Section 3 of the Indian Evidences Act and, therefore, copies thereof need not be given under Section 173, Code of Criminal Procedure. It was also stated in that petition: Unlike negatives of photographs, no copies can be made out of X' ray films and no question of supplying of copies of such films can arise and also that the petition of accused was related one when the enquiry was coming to an end and almost all the prosecution witnesses had been examined in chief and their cross-examinations declined. No prayer for copies was made at the commencement of the enquiry as in required under Section 207A(c). "Prosecution, therefore, contended that the prayer of copy should be refused. On the back of that application the learned Magistrate made the following order: Order dated 8-6-60-Seen petition of the Police Prosecutor. X' ray films are material exhibits. The defense had seen the X' ray films when the doctor witnesses were examined. The witnesses were at this stage not cross-examined by the defence. No question of prejudice arises. In my opinion supply of copies of the material exhibits, viz., X' ray plates is not mandatory. The prayer for supply of copies is rejected.
(3.) Against that order the Revision application under Sections. 439 and 561A, Code of Criminal Procedure, was moved in this Court and a Rule issued and further proceedings in the enquiry was stayed.;

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