Kamaluddin Ahmad: Indra Deo Mali vs Additional Sessions Judge,Faizabad

D. K. Trivedi, J.

These two petitions under Section 482 Cr.P.C. have been filed by the two doctors for expunging the remarks made against them by the I Addl. Sessions Judge, Faizabad in his judgment while deciding the Sessions TYial No. 423/88 State v. Yadunath & Ors.

Accused Yadunath and others were prosecuted in a case under Sections 302,323, 148, 147 I.P.C. by the police of PS. Ibrahimpur, District Faizabad. It is said that Dr. Kamaluddin Ahmad examined the injuries of Ram Adhar injured on 271086 and prepared an injury report. The Said Ram Adhar died and, therefore, autopsy was conducted by Dr. Indra Deo Mall on 21186 Dr. Kamaluddin Ahmad was summoned as Court witness, whereas Dr. Indra Deo Mall was examined as PW. 6. The learned 1st Addl. Sessions Judge, Faizabad after recording the evidence on the record came to the conclusion that the prosecution has failed to prove the guilt of the appellants beyond reasonable doubt and, therefore, he acquitted the accusedpersons. While acquitting the accusedpersons, the learned Trial Judge disbelieved the eyewitnesses and recorded a finding that it is clear that deceased Ram Adhar received injuries either due to some accident or he received injuries somewhere else. He specifically recorded finding that he did not die due to injuries caused in the incident. He further disbelieved the case of the prosecution regarding demolition of the cattleshed as well as the F.I.R. However, while acquitting the accusedpersons the learned trial Judge made some remarks against these two doctors who examined Ram Adhar (deceased) during his life time as well as after death. Dr. Kamaluddin Ahamad examined the injuries of Ram Adhar on 271086, whereas, the incident took place on 241086 at about 4 p.m. The Addl. Sessions Judge, pointed out that in the postmortem report, it is mentioned that 8th, 9th and 10th ribs of deceased Ram Adhar were bf oken and lungs were torn but surprisingly, these injuries were not mentioned by Dr. Kamaluddin Ahmad in the injury report. Secondly, it is pointed out that there was enough swelling on chest and neck of the deceased but the same did not even mention By the Dr. Kamaluddin Ahmad. The petitioners filed a copy of the injury report as Annexure No. 3 which shows the following injuries:

(1) Septicized wound 1.5 cm. x 2 cm. x 2 cm. left side of head 3 cm. above the left ear. Swelling on both eyes and face.

(2) Fracture Deformity of the right lower l/3rd portion of the forearm Tenderness present. Ket U.O. Advised Xray (Annexure No. 3).

(3) Contusion BlueBlack in colour 30 cm. x 24 cm. on the back, surgical emphysema presentKept U. O. Advised Xray.

(4) Scabbed septic abrasion 2 cm. x 2 cm. on the left knee.

(5) Contused swelling 8 cm. x 6 cm. on the back of the left hand. Kept under observation. Xray advised.

Out of these five injuries mentioned in the injury report, injury No. 3 is contusion 30 cm. x 24 cm. on the back, surgical enphysoma present. The doctor has also mentioned the presence of surgical emphysoma and he kept the injury under observation and advised Xray. It is alleged that no Xray has been done as advised by Dr. Kamaluddin Ahmad. The petitioner''s Counsel contended that the injury No. 3 clearly shows that the deceased had very big contusion and the doctor has also mentioned that there is a surgical emphysoma present. The emphysoma has been, defined in the STEDMAN''S MEDICAL DICTIONARY as inflation of Stomach etc. (1) the presence of air in the inrestices of the connective tissue of a part, (2) increase in the size of air spaces distal to the terminal bronchioles either from dilation or from destruction of their wall. Surgical is defined in the said dictionary as subcutaneous, following operation or injury. This means that surgical emphysoma could be by the result of operation or due to some injuries. Dr. Kamaluddin Ahmad has already advised Xray of this injury and after Xray it could be ascertained as to whether the ribs have been broken or not. It not disputed that no Xray has been done and, therefore, in the absence of any Xray, it was notpossible for the doctor to say definitely that such ribs were broken or lungs were torn. The doctor has also mentioned the facts which show that the ribs can be broken. In these circumstances, the observations made by the 1st Addl. Sessions Judge, are in my opinion; of no substance and it cannot be said that the doctor examined the injuries of the victim carelessly. There is no mention of the fact that ribs Nos. 8th, 9th and 10th of deceased Ram Adhar were broken. In view of the facts mentioned above, it can also not be said that the injuries were not mentioned by the doctor in the injury report. The next thing alleged by the 1st Addl. Sessions Judge is that there was enough swelling on the chest and neck of the deceased and the same was found at the time of the inquest report but the same has not been mentioned by Dr. Kamaluddin Ahmad. As pointed out above, the injuries of deceased Ram Adhar were examined on 271086 when he was alive. The inquest report was prepared on 11186. There is a difference of 56 days and, therefore, only on the basis of the said inquest request report or postmortem report, it cannot be said positively that there was enough swelling on the chest and neck at the time of the medical examination. It appears that the learned trial Judge presumed the fact that as the ribs were broken and therefore, the complainant must have complained about it to the doctor and the doctor was bound to mention that the ribs were broken. As pointed out above in the absence of any Xray report, it cannot be said that the ribs were broken and, therefore, the learned Sessions Judge committed an error in presurning that the complainant must have informed the doctor that the ribs are broken. There is no evidence on the record to show as to whether the complainant of the injured has informed Dr. Kamaluddin Ahmad about the fact that the ribs of the victim are broken. Again there is nothing in the statement of the complainant to show that he has informed Dr. Kamaluddin Ahmad that the ribs of deceased Ram Adhar were broken. It may be further pointed out here that deceased Ram Adhar was brought to Hospital on 271086 by the wire of the deceased as mentioned in the injury report itself. In these circumstances in my opinion, the learned trial Judge committed an error in making remarks against Dr. Kamaluddin Ahmad.

Similar, the 1st Addl. Sessions Judge, Faizabad while deciding the trial has also made some adverse remarks against Dr. Indra Deo Mall who conducted the autopsy on the dead body of deceased Ram Adhar. According to the trial Judge, there was a fracture of right arm and Septicised wound on the head was found by Dr. ICU.Ahmad. The said injuries have also been mentioned by Dr. ICU. Ahmad in his injury report. The learned trial Judge further pointed out that in the inquest report the presence of stitches were mentioned on the right forearm of the deceased but this injury was not mentioned by Dr. Indra Deo Mall in his postmortem report. It may be pointed out here that the injury report as well as the BedHead Ticket are on the record. No where it is said that there was some stitches on the right arm. In fact there is nothing on the record to show that the right arm was stitched by the doctor who examined the injuries or thereafter, in the hospital. In these circumstances, it is surprising as to how the Investigating Officer has mentioned in the inquest report that there are stitches on the right forearm. It is also alleged that there was some injury on the right eye and the same has been mentioned in the inquest report by the police but the same did not find mention in the postmortem report. Again, it is pointed out that Dr. I. D. Mall was not confronted with the injury report prepared by Dr K. U. Ahmad as well as inquest report prepared by the Police Officer. In fact neither Dr. I. D. Mall not Dr. K. U. Ahmad has been given any opportunity to explain the inconsistencies mentioned by the trial Judge. If there was any inconsistency or discrepancies in the injury report or the postmortem report, the doctors must have been given an opportunity to explain these defects before making any observations against them.

The Hon''ble Supreme Court in a case of State of U. P. v. Mohd Nairn, AIR 1964, at page 703 took a view which runs as below:

"It has been judicially recognized that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before Courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself, (6) Whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not be normally depart from sobriety, moderation and reserve."

In the instant case also the doctors were examined in the Court but they were not crossexamined on the infirmities mentioned by the trial Judge and therefore, it cannot be said that proper opportunity has been given to the petitioners. It may also be pointed out here that the learned trial Judge also came to the conclusion that the prosecution story as alleged by the prosecution is not correct. The learned trial Judge while considering the injuries of deceased Ram Adhar recorded a finding that the deceased received these injuries either due to some accident or somewhereelse. He clearly recorded a finding that he (Ram Adhar) did not die due to the injuries caused in this incident. He also came to the conclusion that the investigation is not free from doubt and the stroy of demolishing of ''Chhappar'' is also not proved. In these circumstances and the fact that the learned trial Judge disbelieved the whole prosecution case, in my opinion, the observations made by the 1st Addl. Sessions Judge, Faizabad were neither justified nor called for. In the instant case also no opportunity was given to the aforesaid doctors to explain these infirmities, and in these circumstances, in my opinion, the adverse remarks given by the trial Judge are unwarranted and unjustified and, therefore, are liable to be quashed.

In the result, both the aforesaid petitions are, hereby, allowed and the adverse remarks made by the trial Judge against the aforesaid two doctors namely; Dr. Kamaluddin Ahmad and Dr. Indra Deo Mall are also hereby, expunged. Petitions allowed.