Ram Narayan and Another vs State of U.P. and Another

Rajesh Chandra, J.—The revisionists Ram Narayan and Raj Narayan have filed this revision against the order dated 16.9.2008, passed by Additional Sessions Judge/Fast Track Court No. 4, Fatehpur in S.T. No. 294 of 2008. framing the charges against the revisionists for the offences under Sections 323/34, 308/34 and 504, I.P.C.

Brief facts of the case are that the first informant Rakesh submitted a report at P. S. Bakewar, district Fatehpur on 20.6.2007, alleging therein that the accused Raj Narayan, Ram Narayan and Bhadai were vituperising the complainant on the matter of throwing the garbage and when the first informant asked them not to abuse, he and his son Vinay were severely beaten. They both sustained severe injuries.

The offence was initially registered for the offences under Sections 323 and 504, I.P.C. The informant''s son Vinay aged about 11 years was examined at P.H.C. Deomai, district Fatehpur on 23.6.2007 and one lacerated wound 3.5 cm. x 1 cm. x 1 cm. deep on junction of both parietal bone on skull, 14 cm. above from right ear pinna, alongwith traumatic swelling on 1st metacarpal of right hand was found and both the injuries were kept under observation. The doctor advised X-ray of both the injuries. In the opinion of doctor the injuries were about three days old. From the papers filed alongwith revision it appears that the above said injuries were X-rayed and X-ray report dated 26.6.2007 revealed that there was a crack fracture in the right parietal bone and again there was a fracture in metacarpal bone.

The trial court vide order dated 8.9.2008 found that the offences under Sections 323, 504 and 308, I.P.C. are made out and thereafter framed charges against the accused Raj Narayan and Ram Narayan for the offences under Sections 323/34, 308/34 and 504, I.P.C. on 16.9.2008.

It is against this order that the revision has been filed.

In revision I have heard learned Counsel for the revisionists as well as learned A.G.A.

The contention of the learned Counsel for the revisionists is that after filing of the first information report for a non-cognizable offence a medical docket was issued by the police station concerned for P.H.C. Deomai, district Fatehpur. The doctor attended the patient Vinay and found his condition serious and referred the patient (Vinay) to the District Hospital. Fatehpur/Ursala Hospital, Kanpur. At that time no medical examination of the injured Vinay took place at P.H.C. Deomai, district Fatehpur.

On 20.6.2007, the said injured Vinay was admitted in G.S.V.M. Medical College, Kanpur. On 21.6.2007 a C.T. scan of the cranial was conducted wherein the following was observed:

Posterior Fossa:

4th ventricle is normal in size and position. Both the cerebellar hemispheres are within normal limits. Both internal acoustic meatii and canals are normal.

Supratentorial:

Both the lateral ventricles and 3rd ventricle are normal in size and position.

No mid line shift is seen.

Basal cisterns and cortical sulci are normal.

Attention values of brain parenchyma are within normal limits.

Impression:

Normal Cranial C.T. Study.

The contention of the learned Counsel for the revisionists is that since nothing abnormal was found in the C.T. scan, the injured Vinay Kumar was discharged under normal circumstances. On 23.6.2007, an application was moved by the first informant Rakesh Kumar to the Medical Officer Incharge of P.H.C. Deomai stating therein that no medical examination of the injured Vinay Kumar took place at Hailot Hospital, Kanpur and the medical examination of Vinay Kumar may be conducted. The said Vinay Kumar then was medically examined at the P.H.C. on-23.6.2007 at 7.30 a.m. and the doctor noted the above said two injuries which were found three days old. Subsequently in the X-Ray, a crack fracture was found in the right parietal bone and fracture in the head of metacarpal bone.

It was also contended that the X-Ray report is a manipulated and procured document and has been manufactured to add gravity to the offence against the revisionists. Ram Hazoori, father of the revisionists had also given an application on 5.9.2007 to the Chief Minister for further medical examination of the injured Vinay Kumar by Medical Board but the injured Vinay Kumar did not turn up there. An application was also moved in the trial court but the same was rejected on 8.9.2008 and the orders were passed for framing the charges against the revisionists. The contention is that the learned trial Judge rejected the application of the Applicant without considering the facts and circumstances of the case and in view of the C.T. scan report, no offence u/s 308, I.P.C. is made out. The trial Judge ought to have given due weight to the C.T. scan report of the injured Vinay Kumar and if the report had been considered by him in its right perspective, the trial court would have come to the conclusion that no offence u/s 308, I.P.C. is made out.

Learned A.G.A. on the other hand argued that the first informant Rakesh had moved an application before the Medical Officer Incharge P.H.C, Deomai that no medical examination of his son took place at Hailot Hospital hence his medical examination may be conducted. His further contention is that it is a matter of evidence as to whether the injured Vinay Kumar was admitted in the Hospital at Kanpur and any C.T. scan was conducted or not and at the stage of charge the trial court could not record any finding in this regard.

Prima facie there is an X-Ray report to the effect, that fracture in the right parietal bone was found in the X-Ray of Vinay Kumar and simultaneously a fracture was further found in metacarpal bone. Grievous injury in the skull of 11 years'' old Vinay Kumar is sufficient to make out a case u/s 308, I.P.C.

I considered over the respective arguments and also perused the papers filed with the present revision.

The main contention of the learned Counsel for the revisionists is that since in the C.T. scan of the injured Vinay Kumar, nothing abnormal was found hence no case u/s 308, I.P.C. is made out against the revisionists. This argument could have been sustained if there had not been an application of the first informant Rakesh to the Medical Officer Incharge of the P.H.C. that ho medical examination of his son took place at Hailot Hospital, Kanpur and further if there had not been X-Ray report to the effect that there was a fracture in the right parietal bone of Vinay Kumar. It is a disputed question of fact as to whether the injured Vinay Kumar was ever admitted in the G.S.V.M. College, Kanpur and any C.T. scan of the cranial was conducted. This fact can be ascertained only after the evidence is recorded in the trial court. At present there is an X-Ray report to the effect that a crack fracture was found in the right parietal bone of the injured Vinay Kumar who is only 11-12 years of age. Such an injury upon the skull may have proved fatal and if the trial court in view of the said injury framed the charge u/s 308, I.P.C., it cannot be said that any illegality has been committed by the trial court.

The Hon''ble Apex Court in State of M.P. Vs. S.B. Johari and Others, has observed as follows:

Instead of considering the prima facie case, the High Court in criminal revision cannot appreciate and weigh the materials on record for coming to the conclusion that charge against the accused could not have been framed. It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial.

The purpose of Sections 227 and 228, Code of Criminal Procedure is to ensure that the Court should be satisfied that the accusation made against the accused person is not frivolous and there is some material for proceeding against him. In a revision filed u/s 397, Code of Criminal Procedure, the High Court has to satisfy itself as to the correctness, legality and propriety of the order passed by the lower court. Since I do not find any such illegality or impropriety in the order of the trial Judge in framing the charge u/s 308, I.P.C.. I feel that no interference is called for in this regard.

In the present case, a prima facie offence u/s 308, I.P.C. is made out.

The trial Judge has also framed the charge for the offences under Sections 323/34 and 504, I.P.C. but I feel that the charge needs amendment as in the X-Ray report a fracture in the metacarpal bone has been found. Hence, the charge u/s 325/34, I.P.C. ought to have been framed. The learned trial court is directed to correct the mistake by amending the charge.

Before parting with the judgment it is to be observed that as per the report of G.S.V.M. Medical College, Kanpur, the injured Vinay son of Rakesh was brought to the Medical College by C. P. 367, Ajay Yadav of P. S. Bakebar, district Fatehpur, and a C.T. scan of the cranial of the injured also took place. If the prosecution or the defence fail to produce constable Ajay Yadav or the doctor/doctors of the Medical College to prove the above noted facts then the trial court in its wisdom shall not hesitate in examining the witnesses u/s 311, Code of Criminal Procedure to do complete justice between the parties.

With the above said observations, the revision is dismissed.