Ram Dayal and Others vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J—Kana Ram s/o Nathuram, along with his four sons, namely Ram Dayal, Ram Chandra, Sanwarmal, and Balram along with Samander s/o Onkar and Chuna Ram alias Harphool s/o Samander, were tried by the Court of Additional Sessions Judge (Fast Track) No. 2, Sikar, in a case arising out of FIR No. 129/05 registered at Police Station Khandela, for the offence under Sections 147, 148, 149, 323, 452 and 504, IPC. The trial Court vide impugned judgment dated 27-11-2010, had acquitted Samander and his son Chuna Ram alias Harphool. Kana Ram along with his four sons, namely Ram Dayal, Ram Chandra, Sanwarmal and Balram were held guilty of offence under Sections 148, 323/149, 324/149, 452, 307/149 and 302/149, IPC. Vide a separate order of even date, the accused-appellants were sentenced as under:--

U/S. 148, IPC - to undergo one year''s R.I. and to pay a fine of Rs. 1,000/- each, in default of payment of fine, to further undergo one month''s R.I.

U/S. 323/149, IPC - to undergo six months'' R.I. and to pay a fine of Rs. 1,000/- each, in default of payment of fine, to further undergo one month''s R.I.

U/S. 324/149, IPC - to undergo one year''s R.I. and to pay a fine of Rs. 1,000/- each, in default of payment of fine, to further undergo one month''s R.I.

U/S. 452, IPC - to undergo two year''s R.I. and to pay a fine of Rs. 1,000/- each, in default of payment of fine, to further undergo one month''s R.I.

U/S. 307/149, IPC - to undergo ten year''s R.I. and to pay a fine of Rs. 5,000/- each, in default of payment of fine, to further undergo three month''s R.I.

U/S. 302/149, IPC - to undergo life imprisonment and to pay a fine of Rs. 5,000/- each, in default of payment of fine, to further undergo three month''s R.I.

Aggrieved against the same, all the five convicted accused filed D.B. Criminal Appeal No. 890/2010. Mali Ram, the complainant, aggrieved against the acquittal of Samander and Chuna Ram alias Harphool has instituted D.B. Criminal Appeal No. 965/2011.

The criminal proceedings were set into motion on the basis of written report (Exhibit-P/2) submitted by Mali Ram Saini (P.W. 2). In the occurrence, Bheeva Ram brother of Mali Ram had died. Mali Ram, the complainant, his wife Mishri Devi, Aanchi Devi w/o Bheeva Ram, Bhagli Devi, mother of the deceased and Hemraj son of the deceased had suffered injuries.

It is submitted before us that in the occurrence, accused appellant Ram Chandra, Kana Ram and Ram Dayal had also suffered injuries. It is contended that in the Parchabayan (Exhibit-P/2) recorded by SHO Police Station Khandela, Maliram, the complainant (P.W. 2) has stated nothing regarding injuries caused to three accused.

It has been vehemently urged before us that for non-explanation of injuries in the FIR, on the person of accused is fatal to the prosecution, as the complainant party has suppressed the origin and genesis of the occurrence.

Before we advert to the arguments raised, it will be pertinent to mention that Dr. N.L. Disania (P/13) had conducted Post-Mortem on the dead body of Bheeva Ram. As per Post-Mortem Report (Exhibit-P/34), four injuries had been found on his person.

Dr. S.P. Buradia (P.W. 12) on 20-7-2005, had examined Hemraj s/o of Bheeva Ram and as per injury report (Exhibit-P/35) he had found two injuries on his person which were simple in nature.

As per injury report (Exhibit-P/37) proved by Dr. S.P. Buradia (P.W. 12), Mishri Devi had suffered two injuries.

As per injury report (Exhibit-P/38) Aanchi Devi w/o Bheeva Ram, the deceased had suffered one lacerated injury on the head.

As per injury report (Exhibit-P/39) Bhagli Devi, mother of the deceased had suffered three injuries.

In the injury report (Exhibit-P/40) of Bheeva Ram, doctor had found five injuries on his person. However, we have already referred to the Post-Mortem Report (Exhibit-P/34) of the deceased, Bheeva Ram.

What is material for us is the injuries on the person of accused. Dr. S.P. Buradia (P.W. 12), as per injury report (Exhibit-D/5) had found two injuries on the person of accused Ram Chandra. Injury No. 1 was lacerated wound 0.5 cm x 0.5 cm and 0.2 cm on the right frontal region. This injury was declared as simple. Kana Ram as per injury report (Exhibit-D/6) had suffered five injuries, out of which injury No. 1 was lacerated wound 4cm x 0.5 cm bone deep on right parietal region of scalp. After examination, injury on the person of Kana Ram was also declared simple. As per Exhibit-D/7, Ram Dayal has suffered one injury--''lacerated wound 1.5 cm x 0.5 cm bone deep on mid parietal region''. Injury on the person of Ram Dayal accused was declared as grievous.

Medical Jurist had doubts, regarding declaration of injury, as grievous. He had submitted communication on 4-8-2005 to the Principal Medical Officer, S.K. Hospital, Sikar. For ready reference we reproduce the entire communication as under:--

"Office of Medical Jurist CHC Khandela (Sikar)

No. 518/05

To

The PMO, SK Hospital, Sikar

Subject: Expert opinion on X-Ray

Reference- X-Ray plates No. 203-205 dated 2-8-05

R. No. 224105 dated 20-7-05.

Through - SHO PS Khandela

Respected Sir,

With due respect above X-ray plates with photo copy of the injury report are being sent to you for expert opinion of radiologist on following points and of medical jurist-

(1) Patient sustained lacerated wound at mid parietal region at the level of line joining the two ears. At this level, there seems no bony injury. If there is any bony injury kindly give expert opinion?

(2) In these X-Ray, there seems a doubtful fracture line of frontal bone at forehead level, where patient did not have any injury at the time of examination. This line is of a fracture bone or vascular marking or somewhat else (artifact), give expert opinion.

(3) If there is a fracture in point No. (2) kindly take expert opinion of Medical Jurist about the nature of injury No. (1) mention in injury report and about the fracture if any in point (2).

Medical Jurist Com. Health Center (Sikar)"

Radiologist opined that above injury was fracture of frontal bone, Radiologist by giving opinion that there is a fracture, has given no reasons to clarify the doubts expressed by the Medical Jurist.

Right of private defence projected by the learned counsel for the appellants materially hinge on the opinion regarding injury on the person of Ram Dayal, which has been noticed in injury report (Exhibit-D/7). We have also doubt that whether injury caused on the mid parietal region, can cause fracture of the frontal bone on the forehead, especially when Dr. S.P. Buradia (P.W. 12) in cross-examination by the Public Prosecutor has stated that

In view of statement made by Dr. S.P. Buradia (P.W. 12), that fracture was not found on the seat of injury and doubts expressed by him in (Exhibit-D/8), we are of view that it is imperative for us to clear our doubts by examining experts as Court witnesses by invoking Section 311, Cr.P.C.

Thus, we direct Medical Superintendent, SMS Medical College, Jaipur to depute Professor of Neuro Surgery, Professor of Radiology, and Professor of Orthopaedics to assist this Court and appear as Court witnesses. Before examination of these witnesses, we direct Dy. Registrar (Judicial) of this Court to make X-ray examination of Ram Dayal available to the witnesses along with communication (Exhibit-D/8).

After the documents are furnished and examined by the experts, the case be listed for examination of above said three witnesses to be deputed by Medical Superintendent, SMS Medical College, Jaipur on 24-3-2015. Dy. Registrar (Judicial) is directed to convey a copy of this order to Medical Superintendent, SMS Medical College, Jaipur.