State (Delhi Administration) vs Jagdamba Parshad Etc.
1988 Latest Caselaw 288 Del

JUDGMENT

Charanjit Talwar, J.

(1) The State had filed this appeal against even persons challenging their acquittal under Sections 304/325 read with Section 34 of the Indian Penal Code. The impugned Judgment is by an Additional Sessions Judge, Shahdara and is dated March 6, 1978. On August 10, 1978, leave to appeal against acquittal of Jagdamba only, who is respondent no. 2 in the Memo of parties, was granted.

(2) Jagdamba Parshed and Radhika Parshad were tried for an offence punishable under Section 304 read with Section 34 of the Indian Penal Code. The prosecution case was that Radhika Parshad had caught hold of Brahm Dutt (since deceased) while Jagdamba Parshad, respondent herein had struck a phatta (wooden plank) blow on the head of Brahm Dutt. There were two witnesses to this occurrence; PW-I Ashok Kumar and PW-2 Radhey Shyam. In a nutshell, these two witnesses stated that the respondent herein an Radhika Parshad were giving abuses to Brahm Dutt and others and then Jagdamba Parshad inflicted the blow on the head of Brahm Dutt who got injured. This incident occurred at about 10 A.M. on 6th November, 1975.

(3) Brahm Dutt Radhey Shyam an Ashok Kumar went to the Police Post Seemapuri and at their instance, Dd Report no. 8 was recorded by PW-3 Constable Ram Singh. The Constable sent them to the General Hospital, Shahdara, for medical examination. Dr. R.C Sharma, who was produced as PW-6 examined the injured, including Brahm Dutt. The Medico- legal Certificate in respect of Brahm Dutt has been proved as PW-6/B. The only injury found has been described therein as : "CLW scalp in held. No. other injury is seen."

The nature of the injury has been opined as simple inflicted with a blunt weapon. The examination of Brahm Dutt was conducted at 11.45. P.M. on the date of the incident i.e. 6th November, 1975. After proving the report Ex. PW-6/B and reports regarding the other injured persons. Dr. Sharma in his testimony stated that at about 2.50 P.M, as Brahm Dutt was having convulsions be was referred by him to the Surgeon, of that very hospital. At the advice of the Surgeon, Brahm Dutt was referred to the lrwin Hospital. In cross-examination, he further admitted that since Brahm Dutt did not have much of an injury, he was not given any treatment excepting for application of a medicine on his injury on the head.

(4) Brahm Dutt deceased was removed to lrwin Hospital as per the advice of the Surgeon of the Shabdara General Hospital on that very day. The prosecution for reasons which arc not obvious, has not produced the M.L.C. of the lrwin Hospital in respect of the deceased. The only document brought on record is the death summary (Ex. PW-9/A) prepared by Dr. N.C. Kaushik, dated the 7th November, 1975. This death summary was got proved through Shri Balwan Dass, Record Clerk of the Hospital who appealed as PW-9. He averred that Dr. Kaushik had left the service and his address was not available. He could identify the handwriting and signature of Dr. Kaushik. The accused was given opportunity to cross-examine this witness. As no questions in cross-examination were put by them, the testimony of PW-9 proving the death summary is to be taken as correct. In the death summary, it has been stated that Brabin Dutt was brought in a hospital van on 6th November, 1975. The time of admission in that hospital, however, has not been given. The injured was "deeply unconscious" and was not responding to stimuli. What is important to note is that the contused lacerated would on the scalp of Brahm Dutt was found to have been stitched in Shahdara hospital. The injured, was transferred to Respiration Ward but his condition deteriorated He had a cardiac arrest at about 4.25 A.M. on 7th November, 1975 and was declared dead at 4.30 A.M.

(5) As noticed above, neither the M.L.C. of Brabm Dutt recorded in the lrwin Hospital nor any other medical or surgical notes concerning the treatment given to him in that hospital have been brought on the record. Dr. Kaushik in the death summary has nowhere stated that he was the one who attended on the injured at the time he was brought to lrwin hospital. From the death summary, it cannot be said that any doctor or Dr. Kaushik had at any stage treated or stitched the would on the scalp. It appears that the death summary was prepared by Dr. Kaushik after going through some other record maintained by that hospital

(6) The learned trial court, after analysing the evidence has concluded that the prosecution has not been able to prove as to when, where and how the fracture was sustained by Brabm Dutt, although according to Dr. Bishnu Kumar (who conducted the post-mortem), the death was due to internal haemorrhage and fractured scalp.

(7) The prosecution has not been able to prove very many material facts. The most important of them is to when, where and how the injury which was found by Dr. Sharma to be simple in nature was stitched and by whom. As noticed above. Dr. Shrama stated that only medicine was applied on the head injury. Thereafter on the advice of the surgeon, the patient was transferred to lrwin hospital. When Brahm Dutt arrived at lrwin Hospital, his wound on the bead was found to be stitched. According to Dr. Kaushik, it was stitched at Shahdara. The defense was that in fact Brahm Dutt bad been brought to the General hospital Shahdara twice; once in the morning and then again in the evening. However, the doctor denied the suggestion. There is nothing on the record to show that the injury was stitched in the General hospital, Shabdara. By whom and when and where was the injury stitched remains a mystery. In case M L.C. and other medical notes had been produced, it would have been possible to give a positive finding about the stitching of the wound. As the records stands, the injury received by Brahm Dutt is to be held to be a simple injury given by a blunt object. It cannot be said that the prosecution has conclusively proved that no Jagdamba gave a blow which resulted in the death of Brahm Dutt. The learned trial court's finding that the respondent herein was entitled to be given benefit of doubt is justified.

(8) There is no merit in this appeal which is hereby dismissed.