State of Punjab vs Bant Singh

V.K. Bali, J.

Bant Singh and Nachhattar Singh, appellants, who have filed Crl. Appeal No. 473SB of 1990, were tried of the charges framed against them under Sections 307/324/323 read with Section 34 of the Indian Penal Code. After resultant trial, which was conducted by Additional Sessions Judge, Bhatinda, they were acquitted of the charge framed under Section 307 IPC but were convicted under Sections 324/323 read with section 34 IPC. Whereas, Nachhattar Singh was held guilty of an offence punishable under Section 324 IPC, Bant Singh was held guilty under Section 324 with the aid of Section 34 IPC. They were order to suffer RI for one year and to pay a fine of Rs. 500/ each and in default thereof, they were to further suffer RI for three months. Bant Singh was further sentenced under Section 323 IPC to undergo RI for six month and to pay a fine of Rs. 200/, in default whereof, he was to further undergo RI for two months whereas Nachhattar Singh was sentenced under Section 323 read with Section 34 of the IPC to undergo RI for six months and to pay a fine of Rs. 200/ and in default thereof to further undergo RI for two months. Against their acquittal under Section 307 IPC, the State has filed Crl. Appeal No. 318DBA of 1992. While acquitting Nachhattar Singh and Bant Singh under Section 307 IPC and convicting them under Sections 324/323/34 IPC, as described above, learned Addl. Sessions Judge passed some disparaging remarks against Dr. S.S. Malik, Medical Officer, Civil Hospital, Bhatinda, who appeared as PW1 in support of the prosecution version. Dr. S.S. Malik has filed Crl. Misc. No. 9788M of 1991 for expunging the remarks. By this order, thus, we propose to dispose of Crl. Appeal Nos. 318DBA of 1992, preferred by the State of Punjab against Nachhattar Singh and Bant Singh for their acquittal under Section 307 IPC as also Crl. Appeal No. 473SB of 1990 preferred by Nachhattar Singh and Bant Singh against their conviction under Sections 324/323/34 IPC in the manner fully detailed above as also Crl. Misc. No. 9788M of 1991 preferred by Dr. S.S. Malik.

Coming first to the State appeal, it shall be seen that the controversy is in a very narrow compass. The fate of this appeal is almost entirely dependent upon medical evidence. Dr. S.S. Malik appeared as PW1 and deposed that on June 25, 1991 at 12.30 AM (night) he had medically examined Gursewak Singh son of Nachhattar Singh and found following injuries on his person :

"1. Incised wound 8 cms x 11/2 cms on the right side of skull. The wound was horizontally placed and starting from back of right ear, going to the occipital region. Under lying bone was fractured. Fresh bleeding was present.

Contusion 5 cms x 2 cms on the left side and upper part of chest. Advised xray.

Abrasion 1 cm x 1 cm on the left side of neck.

Swelling 3 cms x 3 cms on the medial aspect of left knee joint."

Injury No. 1 was declared dangerous to life while injury No. 2, after opinion of xray, and injuries 3 and 4 were declared simple. Injury No. 1 was caused by sharpedged weapon whereas injuries 2, 3 and 4 were caused by blunt weapon. Probable duration of the injuries was within six hours. B.P. was unrecordable, pube was unrecordable. Patient was irritable and unconscious and pupils were normal. On June 27, 1989, PW1 sent a supplementary report to the SHO, PS Kotwali Bhatinda as advised by Dr. Hardev Singh, Senior Medical Officer, Civil Hospital, Bhatinda, mentioning therein that in continuation of his earlier MLR No. 34/SSM/89 of Gursewak Singh dated June 25, 1989 and injury No. 1 xray skull was advised to see any fracture and the opinion about the nature of this injury was to be given after receipt of Xray report. After a month i.e. on July 25, 1989 he was asked to declare the nature of injury No. 1 by ASI Babu Ram, Police Station Cantt, Bhatinda and on that he had requested the Senior Medical Officer as follows :

"Kindly, as an enquiry is pending against me in this case, so please, constitute a Board for expert opinion."

The Board was formed by Dr. Surjit Kaur including Dr. S.K. Gupta, Dr. A.S. Sekhon and PW1 himself. The report, that then came, mentioned that injury No. 1 could be dangerous to life if imminent medical treatment was not provided. The reasons for declaring the injury as dangerous to life were that the same was on the vital part of the head, patient was unconscious, BP was unrecordable, pulse was unrecordable as per MRD No. 1316 dated June 25, 1989 and the patient was having severe cerebral contussion. Injury No. 2 was, however, declared simple in nature. In crossexamination, the witness aforesaid stated that it was not always necessary to get the head injury x rayed before giving the opinion. He further stated that it was not necessary that head injury could be dangerous to life only if there was compound fracture of the head. He, however, admitted that as per xray report, no fracture of head injury was detected. He agreed with the observations of Modi that danger to life should be imminent before the injuries were designated dangerous to life and such injuries were extensive and implicated important structures or organs so that they might prove fatal in the absence of surgical aid, for instance, a compound fracture of skull. The witness further stated that he had not used the lense while examining the injuries. He also admitted that the S.M.O. Dr. Hardev Singh asked him to get the injury xrayed and it is thereafter that he had sent his supplementary report. He also stated that the injured was discharged from the hospital on June 30, 1989 and that there was no bed head ticket available with regard to patient after June 29, 1989. From the evidence of PW1, as has been detailed above, Mr. S.S. Dhaliwal, learned Deputy Advocate General, Punjab, could not convince this Court that injury No. 1 which was the only serious injury, could bring the case against Nachhattar Singh and Bant Singh under Section 307 IPC. He also could not urge anything by which injury No. 1 could be brought within the ambit of Section 326 IPC as no fracture of any bone was found. All that has been said is that the injury having been caused by a sharp edged weapon and being on a vital part of the injured, the same would be sufficient enough to charge and accordingly convict Bant Singh and Nachhattar Singh under Section 307 IPC. The sole contention of learned counsel, as noted above, does not impress us at all. Simply because the concerned injury is on the vital part of the body, in our view, will not be enough to bring it either under Section 307 or Section 326 IPC. To charge a person under Section 307 or 326 IPC, it shall have to be shown as to what was the actual intention of the assailant as also as to what is the nature of injury i.e. the extent of damage caused to body or any organ thereof. It is true that Nachhattar Singh has been attributed an injury on the head of injured and the said injury appears to have caused by a sharp edged weapon but, from the medical evidence, gist whereof has been given above, it appears that there was no damage to any vital part nor any fracture was found on xray examination. The case against Nachhattar Singh and Bant Singh, thus, could not fall either under Section 307 or Section 326 IPC. Their acquittal on the charge of Section 307 IPC is, thus, justified and order passed on that count by the trial judge cells for no interference.

Coming now to the appeal preferred by Bant Singh and Nachhattar Singh, all that learned counsel for the appellants has urged before us is that appellant Bant Singh was 26 years whereas Nachhattar Singh was 42 years of age at the time of commission of crime. They were first offenders and had not acted in a cruel manner and they were, thus, entitled to the benefit of the Probation of Offenders Act as also the provisions contained in Sections 360/361 of the Code of Criminal Procedure. As per the prosecution version, Nachhattar Singh had raised an alarm that the complainant be not spared and thereupon had inflicted a kirpan blow to him which struck him near his ear on head. The complainant then fell down when Bant Singh gave lathi blows to him. The complainant raised an alarm whereupon Sat Pal and others came to his rescue and then the accused fled away from the spot with their respective weapons. Nachhattar Singh, it is thus apparent, had given one injury to the complainant. The trial remained pending for about 11/2 years. Nachhattar Singh and Bant Singh must have gone through the agony of this litigation, by now spreading over six years. We accept the contention of learned counsel for appellants, Nachhattar Singh and Bant Singh and extend them the benefit of probation that is available under the provisions contained in the Probation of Offenders Act and instead of sending them to jail at this stage, rather order that they would furnish bonds to the satisfaction of the concerned authority that they will be of good behaviour and keep peace for a period of one year. They shall furnish such bonds within one month from today, failing which they shall have to undergo sentence and pay fine as has been ordered by the trial Judge.

Coming now to the Crl. Misc. No. 9788M of 1991 filed by Dr. S.S. Malik, it shall be seen that learned Addl. Sessions Judge in paragraph 20 has observed as follows :

"Then the learned defence counsel has questioned the conduct of Dr. S.S. Malik in this case and I after going through the record find that his conduct while conducting the medicolegal examination of the injured is not above board. He seems to be a person who had played some hankypanky in this case. He declared injury No. 1 to be dangerous to life on some flimsy grounds. First of all he sent an intimation to the police and he declared injury No. 1 dangerous to life without referring to any xray. Rather on 27.6.1989 he sent a supplementary report of his own accord to SHO, PS Kotwali Bhatinda in continuation of his MLR No. 34/SSM/89 dated 25.6.1989 that the nature of the injury would be given after receiving Xray report. As to why without referring to Xray report he declared injury No. 1 to be dangerous to life is a matter for which no explanation is forthcoming. Further he never gave the depth of injury No. 1 though in his MLR he has stated that it was an incised wound 8 cms x 11/2 cms on the right side of the skull but its depth was not given. Then sensing that some complaint had been made against him for declaring this injury to the dangerous to life, then of his own accord requested Dr. Surjit Kaur, who was SMO then in the absence of the regular SMO, to constitute the Board and Dr. Surjit Kaur without caring for the rules for constituting the Board constituted the Board which consisted of Dr. S.K. Gupta, Dr. A.S. Sekhon besides Dr. S.S. Malik. The Board was asked to give opinion as to whether injury No. 1 could be dangerous to life on the person of Gursewak Singh and the Board acted very casually in order to save their own brother Dr. S.S. Malik and without examining the patient and only referring to the MLR prepared by Dr. S.S. Malik and his papers gave the opinion that the said injury was dangerous to life as the injury was on the vital part of the body i.e. head and the patient was unconscious and his blood pressure/pulse was unrecordable. It will not be out of place to mention that Dr. A.C. Bajaj PW4 Radiologist had declared injury No. 1 to be simple as he did not find any fracture on its being xrayed whereas according to the description of injury No. 1 given by Dr. S.S. Malik he found underlying bones fractured. Why the Board did not think it proper to examine the injury also before going through the records prepared by Dr. S.S. Malik is a matter for which no explanation is forthcoming ........ As to why departure from those rules had been made in this case by constituting a Board of only those doctors that too by one senior doctor in the absence of even SMO is a matter which requires serious consideration by the department itself. However, suffice it to say that PW1 Dr. S.S. Malik by getting the Board appointed and the other doctors who had acceded to his request had not acted bonafide ....... All these circumstances clearly show that Dr. S.S. Malik PW1 had not acted bona fide in this matter, his conduct is not above board. The members of the Board who had toed his lines had also not advanced the cause of this noble profession. Without going much in this matter, I leave this matter to the higher authorities of the Medical department to look and consider in the matter thoroughly departmentally and to take appropriate action against the guilty person or to issue a suitable guidelines in the matter of appointment of Boards where a medical officer is to play havoc with injured who are brought to him in medicolegal cases."

After hearing learned counsel representing Dr. S.S. Malik as also the counsel representing the parties, we are convicted that the remarks that have been extracted above, were not justified. From the observations made by PW1 Dr. S.S. Malik, as have been reproduced while dealing with the nature of injury No. 1 and, in particular, the visual observation of the injury, it was not absolutely out of proportion for the doctor to have opined injury No. 1 as dangerous to life. Modi in 16th Edition of Medical Jurisdiction and Texicology, while dealing with regional injuries on the head in Chapter 12, states that "in the case of a contusion, effusion of blood is sometimes so great that it forms a haematoma (cephalhaematoma), which may readily be mistaken for a depressed fracture owing to the sensation of crepitus which it imparts to the fingers on palpating it. The diagonsis is not easy in such cases.

That apart, before condemning the doctor, in the way and manner he has been done, we are of the view that he should have been heard in the matter. It is settled proposition of law that no one should be condemned unheard. The Courts or even for that matter any judicial or quasijudicial authorities do not pass any order affecting the career or reputation of a person without hearing. The apex Court in The State of Uttar Pradesh v. Mohammad Naim, AIR 1964 SC 703 held that "The High Court can in the exercise of its inherent jurisdiction expunge remarks made by it or by a lower court if it be necessary to do so to prevent abuse of the process of the Court or otherwise to secure the ends of justice and that it is a principle of cardinal importance in the administration of justice, that the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by any body, even by the Supreme Court. At the same time it is equally necessary that in expressing their opinions, Judges and Magistrates must be guided by considerations of justice, fair play and restraint. It is not infrequent that sweeping generalisation defeat the very purpose for which they are made. It has been judicially recognised 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 ; (b) 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." Principle of hearing a person against whom remarks are sought to be made has been reiterated by the Apex Court in Govindraj Shetty v. State of Karnataka, 1980 Crl. L.J. 879.

For the reasons stated above, whereas, Crl. Appeal No. 318DBA of 1992 preferred by the State against acquittal of Nachhattar Singh and Bant Singh under Section 307 IPC is dismissed, Crl. Appeal No. 473SB of 1990 filed by Bant Singh and Nachhattar Singh is allowed in the manner indicated above and to that extent the judgment of the learned Addl. Sessions Judge is set aside/modified. Crl. Misc. No. 9788M of 1991 is also allowed and disparaging remarks made against PW1 Dr. S.S. Malik are expunged.