Diwakar vs Jai Ram

Dr. (Mrs.) Sarojnei Saksena, J.

The complainantpetitioner has filed this petition under Section 482 Cr.P.C. for quashing the order of the Additional Sessions Judge, Gurgaon, dated September 18, 1996, and the proceedings now pending in the Court of the Chief Judicial Magistrate, Gurgaon.

Brief facts of the case are that the petitionercomplainant lodged a report on June 7, 1995 (FIR No. 120), which was registered under Section 324/342/307/34 IPC at Police Station Nuh, District Gurgaon, against respondents 1 to 5. The FIR is reproduced in the petition itself. In this incident the complainantpetitioner received four injuries. Only injuries No. 1 and 2 are material for the decision of this petition, which are reproduced below :

"(1) A stitched wound size 5 cm. x 1/4 cm. x scalp deep present on occipital region of skull, clotted blood present onward. Tenderness present. Swelling present. Advised Xray.

(2) An incised (wound) of size 5 cm. x 2 cm. x bone deep present on left side of chest at its lower part. Fresh bleeding present. Tenderness present. Advised Xray. AP lateral view."

After completing the investigation, police submitted the charge sheet for the aforesaid offences against respondents 1 to 5. Thereafter Jai Ram accusedrespondent filed a petition before the Superintendent of Police, Gurgaon, alleging that the doctor''s opinion obtained during investigation is not correct; second opinion be obtained about the injuries sustained by the complainant. On receiving such an application submitted by the aforesaid accused, further opinions of Dr. J.K. Saini and Dr. S.K. Khanna were obtained. After obtaining these additional opinions of these doctors, supplementary charge sheet was filed under Section 173(8) Cr.P.C., though again it was filed for the aforesaid offences.

After hearing arguments with regard to the framing of the charge, the learned Additional Sessions Judge, Gurgaon, passed the impugned order dated September 18, 1996, and agreeing with the contentions of the learned defence counsel, held that from the perusal of medical reports and medical evidence produced by the prosecution, the case under section 307 IPC is not made out prima facie. He also observed that the prosecution itself is very much doubtful about the application of Section 307 IPC and has submitted report under Section 173(8) Cr.P.C. Thus, he held that prima facie case for framing of charge against the accused under Sections 342/326/323 read with Section 149 IPC is made out. The case was sent to the Chief Judicial Magistrate, Gurgaon, for framing of the charge against the accused persons and holding the trial therein.

The petitionercomplainant has contended that this order of the learned Additional Sessions Judge is not sustainable as from the evidence submitted by the police itself, case under Section 307 IPC was prima facie made out. At that stage the learned Sessions Judge was not required to weigh the evidence in a threadbare manner. Hence the prayer.

The respondents as well as the State have filed separate replies, supporting the order and have averred that from the opinion of Dr. J.K. Saini it is obvious that the injury sustained by the complainant was not dangerous to life. He has clearly opined that if may be dangerous to life. This injury was caused in stomach, which is not a vital organ of the body. In his second report dated February 19, 1996, Dr. J.K. Saini also observed that there was no imminent danger to life at the time of infliction of injury.

During arguments the complainantpetitioner''s learned counsel, relying on Court in its own motion v. Surinder Pal etc. 1984(1) RCR 350 ; State of Bihar v. Ramesh Singh, 1977 Crl. LJ 1606 and State of Maharashtra v. Balram Bama Patil and others, 1983 Crl. LJ 331, contended that at the time of framing of the charge the Additional Sessions Judge was not required to scan the evidence minutely, to weigh the various medical opinions which were obtained by the investigating agency later on at the request of the accused, but he was required to consider the evidence collected during investigation on the whole. He also canvassed that at that stage the learned Additional Sessions Judge should have framed charge under Section 307 IPC against the accused persons.

The respondents'' learned counsel submitted that the learned Chief Judicial Magistrate has already framed charges under Sections 342/326/323/149 IPC against the accused persons and the case is now fixed for recording of the prosecution evidence. At the initial investigation since the doctor''s opinion was vague, one of the accused Jai Ram filed a petition before the Superintendent of Police, Gurgaon, to obtain a clear opinion of the doctor about the nature of injury sustained by the complainant. Thereupon the police held further investigation and obtained further opinions of Dr. Saini and Dr. Khanna, which are produced at Annexures P.1/A and P.2. They argued that from these opinion it is obvious that complainant Diwakar was admitted on June 7, 1995. M.L.R. was brought on June 9, 1995, Xray was also done, he was kept under observation and treatment; he developed complication and lapardomy was done. But there was nothing to suggest that there was any injury to lungs, liver and pancreas. Injury No. 2 was on stomach, which is intraabdominal organ and is not on a vital organ (as per opinion) of Dr. S.K. Khanna Annexure P.1/A dated 18.1.1996). On January 22, 1996, Dr. J.K. Saini opined that after receiving report from General Hospital, Gurgaon, report of Dr. Khanna was also produced before him. On the basis of the report, he gave his opinion. Now on the application of Jai Ram, ASI Ram Singh of Police Station Nuh again saw the summary of injuries of the complainant and found that he was on conservative treatment from June 7, 1995; surgery was done on July 29, 1995, and finally he gave his opinion that "... injury remains untreated may be dangerous to life." He also reiterated that stomach is not a vital organ but is intra abdominal organ.

Dr. J.K. Saini gave another opinion on February 19, 1996 (Annexure P.3) wherein he opined that there was no imminent danger to life at the time of infliction of injury.

According to the respondents'' learned counsel from these various opinions given by Dr. Khanna as well as by Dr. Saini, it is apparent that the injuries sustained by the petitionercomplainant were not sufficient in the ordinary course of nature to cause death. Therefore, the learned Additional Sessions Judge has rightly held that offence under Section 307 IPC is prima facie not made out. They also pointed out that the learned C.J.M. has already framed charge under Sections 342/323/326/149 IPC against accusedrespondents 1 to 5.

This case presents a very sordid picture. While deciding this petition it is not at all required to be commented as to how the opinions were obtained from the doctors but it is galore from the record as to why these further opinions were obtained. Accusedrespondent No. 1 filed petition Annexure P.1 before D.S.P. Nuh, making a request that the injury caused to the complainant falls under Section 324 IPC. "Whereas doctor after seeing some other injury has declared it injury under Section 307 IPC. It is requested that regarding above mentioned injury alleged to be caused by Bhala medical opinion may please be taken again and Section 307 be deleted and accordingly 324 may please be added." On receiving this petition, further investigation was initiated under Section 173(8) Cr.P.C. Thus, the investigating agency initiated further proceedings under Section 173(8) at the instance of the accused and not at its own instance or decision. What else is required to show that the police is hand and glove with the accused. On the request of the accused, police obtained three more opinions of the doctors about the injury sustained by the complainant, though initially when the charge sheet was filed opinion of Dr. Saini was already obtained and on that basis challan was filed under Section 307 IPC. It shows that at the instance of the accused police tailored this evidence.

So far as facts of the case are concerned, it is obvious that initially on the basis of the opinion given by Dr. Saini, chargesheet under Section 307 IPC was submitted. Later on, when Dr. Saini and Dr. Khanna were again approached by the police at the instance of accused Jai Ram, Dr. Khanna gave an opinion on January 18, 1996 (Annexure P.1/A), wherein he mentioned that there was nothing to suggest that there was any injury to lungs, liver or pancreas. Injury No. 2 was on stomach, which is intraabdominal organ and is itself not a vital organ. In his report dated January 22, 1996, Dr. J.K. Saini opined that "....Injury remains untreated may be dangerous to life." He also reiterated that stomach is not a vital organ but is intraabdominal organ. His second opinion was obtained on February 19, 1996 (Annexure P.3) wherein he opined "finally there was no imminent danger to life at the time of infliction of injury." Why after submission of the charge sheet, one after the other of these opinions were obtained from the doctors from January 18, 1996, to February 19, 1996. These facts themselves reveal that the investigating agency was trying to help the accused.

So far as the impugned order is concerned, it is settled position that at the time of framing of the charge, the Sessions Judge is not required to weigh the evidence minutely to arrive at a conclusion whether on the basis of such evidence, accused could be convicted for a particular offence. At that stage it is required to be seen whether prima facie offence is made out from the evidence collected during investigation.

In Ramesh Singh''s case (supra) the Apex Court has held :

"Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not, if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in crossexamination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt, the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227."

Relying on the judgment in Ramesh Singh''s case (supra) a Single Bench of this Court in Surinder Pal''s case (supra) held that the Session Judge has to see the charge in the light of the facts placed before him by the prosecution and if there lurks a doubt and that doubt goes in favour of the major offence, then he should frame charge for that offence.

In Balram Bama Patil''s case (supra) the Apex Court has further observed that it is not necessary that bodily injury capable of causing death should have been inflicted. The Apex Court set aside the judgment of the High Court. Apex Court held that acquittal on ground that injuries inflicted were in the nature of simple hurt cannot be sustained.

In each case evidence collected during investigation is required to be perused and scanned minutely, but at that stage the Session Judge is not required to weigh the evidence threadbare to arrive at a conclusion whether offence can be proved on the basis of that evidence. If after full trial, the Court comes to the conclusion that from the evidence on record offence under Section 307 IPC is not made out, but only offence under Section 324 or Section 326 IPC is made out, accused can be convicted for that offence. The learned Sessions Judge also did not consider this aspect that there is a very thin marginal line between offences under Section 326 and 307 IPC. He also did not consider the way in which further opinions were obtained from Dr. Khanna and Dr. Saini in the month of January/February, 1996 much after filing of the challan under Section 307 IPC by the Investigating Officer.

Hence in my considered view, the impugned order cannot be sustained. Accordingly, the petition is allowed, the impugned order is set aside. Further proceedings pending in the Court of the Chief Judicial Magistrate are also quashed. The Sessions Judge, Gurgaon, is hereby directed to withdraw the said case titled State v. Jai Ram and other, from the Court of Chief Judicial Magistrate, Gurgaon, and to hold the trial in his own Court in accordance with a law. The accused personsrespondents 1 to 5 are directed to appear before the Sessions Judge, Gurgaon, on June 12, 1997.