D.K.Trivedi, J. - (1.) These two petitions u/Sec. 482 Cr. P.C. have been filed by the two doctors for expunging the remarks made against them by the I AddI. Sessions Judge, Faizabad in his judgment while deciding the Sessions Trial No. 423/88 State v. Yadunath and OtheRs.
(2.) Accused Yadunath and others were prosecuted in a case under Sections 302, 323,148,147 IPC by the police of P.S. Ibrahimpur, District Faizabad. It is said that Dr. Kamaluddin Ahmad examined the injuries of Ram Adhar injured on 27-10-1986 and prepared an injury report. The said Ram Adhar died and, therefore, autopsy was conducted by Dr. Indra Dec Mall on 2-11-1986. Dr. Kamaluddin Ahmad was summoned as court witness, whereas Dr. Indra Deo Mall was examined as PW 6. The learned I AddI. 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 accused-persons. While acquitting the accused persons, the learned trial Judge disbelieved the eye witnesses 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 cattle-shed as well as the FIR: However, while acquitting the accused persons 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 Ahmad examined the injuries of Ram Adhar on 27-10-1986, whereas, the incident took place on 24-10-1986 at about 4 p.m. The AddI. Sessions Judge pointed out that in the post mortem report, it is mentioned that 8th, 9th and 10th ribs of deceased Ram Adhar were broken and lungs were tom 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 & neck of the deceased but the same did not even mentioned by the Dr. Kamaluddin Ahmad. The petitioner 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-3cm above the left ear. Swelling on both eyes and face. 2. Fracture deformity of the right lower 1/3rd portion of the fore arm. Tenderness present. Ket U.O. Adv. X-ray (Annexure No.3). 3. Contusion Blue-Black in colour 30 cm x 24 cm. on the back, surgical emphysoma present. Kept U.P. Advised X-ray. 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. X-ray 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 emphysoma present. The doctor has also mentioned the presence of surgical emphysoma and he kept the injury under observation and advised X-ray. It is alleged that no X-ray has been done as advised by Dr. Kamaluddin Ahmad. The petitionerTs 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 Stedmans Medical Dictionary as inflation of Stomach etc. (1) the presence of air in the inerstices 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 X-ray of this injury and after X-ray it could be ascertained as to whether the ribs have been broken or not. It is not disputed that no X-ray has been done and, therefore, in the absence of any X-ray, it was not possible 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 I AddI. 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 & 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 I AddI. 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 27-10-1986 when he was alive. The inquest report was prepared on 1-11-1986. There is a difference of 5-6 days and, therefore, only on the basis of the said inquest report or post mortem 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 X-ray report, it cannot be said that the ribs were broken and, therefore, the learned Sessions Judge committed an error in presuming 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 broke. It may be further pointed out here that deceased Ram Adhar was brought to Hospital on 27 -10-1986 by the wife 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.
(3.) Similarly, the I AddI. 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. K.U. Ahmad. The said injuries have also been mentioned by Dr. K.U. 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 fore-arm of the deceased but this injury was not mentioned by Dr. Indra Deo Mall in his post mortem report. It may be pointed out here that the injury report as well as the Bed-Head Ticket are on the record. Nowhere 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 fore-arm. 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 post-mortem 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 nor 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 post mortem report, the doctors must have been given an opportunity to explain these defects before making any observations against them.;