Rajasthan High Court - Jodhpur

Sampat Lal vs State Of Rajasthan on 16 December, 2022

Bench: Farjand Ali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B.Criminal Suspension of Sentence Application No.1158/2022

S.B. Criminal Appeal No. 1942/2022

1. Sampat Lal S/o Sh. Shanker Lal, Aged About 45 Years, B/ c Brahmin, R/o Village Roon, P.s. Kuchera, Dist. Nagaur. (Lodged In Sub Jail Nagaur).

2. Om Prakash S/o Sh. Ram Chandra, Aged About 50 Years, B/c Brahmin, R/o Village Roon, P.s. Kuchera, Dist. Nagaur. (Lodged In Sub Jail Nagaur).

3. Kailash S/o Sh. Rameshwar Lal, Aged About 43 Years, B/c Brahmin, R/o Village Roon, P.s. Kuchera, Dist. Nagaur. (Lodged In Sub Jail Nagaur).

----Appellants Versus State Of Rajasthan, Through PP

----Respondent

For Appellant(s) : Mr. Nishant Bora with Mr. Surendra Choudhary For Respondent(s) : Mr. S.S.Rajpurohit, P.P.

Mr. Hastimal Saraswat

HON'BLE MR. JUSTICE FARJAND ALI

Order

16/12/2022

Heard learned counsel for the accused appellants, learned

Public Prosecutor and learned counsel appearing for the

complainant. Perused the judgment and order impugned and the

record.

Learned counsel for the appellants submits that there was no

previous animosity between the parties. The incident occurred on

a very trivial issue of snatching school bag of son of the

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complainant by Smt. Nirma who is wife of the appellant Sampat

Lal and for that hot altercation took place between the parties and

thereafter they skirmished in which it is said that the victim

Nandkishore received one incised wound on his fronto parietal

region of the skull. The other two injuries are contusions and

simple in nature which is reflecting from bare perusal of Ex.P-17.

Learned counsel submits that opinion regarding nature and gravity

of the injury was sought from the Medical Jurist vide requisition

Ex.P-22, over which, the medical jurist opined that if the victim

was not treated timely, then the injury may be proved dangerous

to life. In this view of the matter, Shri Bora, learned counsel

submits that when an opinion is sought from an expert under

Section 45 of the Indian Evidence Act, it must be firm and definite

and should not be based on probabilities. Whenever an opinion is

sought under Section 45 of the Indian Evidence Act, it is expected

from the expert to furnish the opinion with utmost firmness so as

to assist the Court to form its opinion. Flimsy opinions are not

required to be accepted in accordance with law. He has placed

reliance on the following paragraph of the judgment passed by

this Court in S.B. Criminal Miscellaneous Bail Application No.

6711/2022 titled Bharat Singh Vs. State of Rajasthan:

"It appears that there was no occasion for the agency to seek further opinion without change of circumstance. As per the settled principal of medical jurisprudence, the opinion regarding the nature of injury must be firm and it should not be vague and bald. The injuries should be opined to be grievous in nature or simple. The phrase used by the Doctor that the injuries 'may be dangerous to life' if treatment was not provided, is so vague and casual and the same is not expected from a Medical Officer working at a Government- run Community Health Center. Reliance can be placed on the judgment passed by a co-ordinate bench of this Court vide order dated 23.01.2008 in S.B. Criminal Appeal No. 87/1985; Sua Lal v. State of Rajasthan wherein it has been held as under:-

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"8. In this light, I have also perused the statements of the Medical Jurist, Dr. K.L. Gupta, who had been examined as PW/1. The said witness has stated before the Court that injury No. 1 was grievous in nature and caused by sharp edged weapon. However, he has further stated that injury No. 1 "May case death, if not properly treated in time". In his cross-examination he has stated that injury No.1 was grievous in nature "It may cause death". He has also stated that "Looking to injury No. 1, I cannot say the exact width of the weapon used for injury No. 1, a stab wound can be caused only by penetration". Therefore, so far as injury No. 1 is concerned, that it is grievous in nature, has not been established on record. Moreover, there is no opinion of the medical jurist to the effect that the said injury was sufficient in ordinary course of nature to cause death. Therefore, the offence with regard to attempt tof murder cannot be made out. In my view, in the earlier judgments of this Court in this Case of Bhiyan Ram Vs. State of Rajasthan, 1980 Cr.L.R. (Raj) 688 and Munna Vs. State of Rajasthan 1984 Cr.L.R. (Raj) 529, it has been held that any other opinion like the one, given by the Medical Jurist, Dr. K.L. Gupta, P.W.1 in the instant case or the opinion given 'Dangerous to life" is not sufficient so as to hold the offence under Section 307 IPC to have been proved."

As per Section 45 of the Indian Evidence Act, when the Court has to form an opinion upon a point of foreign law or of science or art, or as to identify of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art or in questions as to identify of handwriting or finger impressions are relevant facts and such persons are called experts. The crux of the provision is that whenever the Court feels that it has to seek an opinion on the aforementioned point, it can seek opinion of the person who is specially skilled in such Law, Science, Art etc. It means that, ultimately, the Court has to form an opinion. The opinion of the expert is sought only for the assistance of the Court thus, the Court is the expert of experts and whenever an opinion is sought, the opinion-giver must be a specially skilled person on that particular point. It must not be fallacious or fallible as the same may instead of assisting, mislead or confuse the Court. The opinion of an expert has to be received with caution as propounded by Hon'ble the Supreme Court in the case of Ram Narain v. State of Uttar Pradesh [AIR (1973) SC 2200]. In my humble and firm view, the Medical Officer must assign a definite medical reasoning for the effect of

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such injury. Emphasis is supplied that the opinion must be firm and definite and in that situation only, the same can be taken as an opinion of expert, admissible under Section 45 of the Indian Evidence Act. The opinion must not be vague or bald or probable or uncertain. There may be several simple injuries which can be proved fatal if not taken care of promptly. For example, a sharp cut on a vein/vessel/artery can turn into a very serious situation if local coagulation or clotting of blood in a part of the circulatory system, i.e. thrombosis, is not occurred on the point and if the bleeding continues and one loses blood from body as a result of injury, the person can die owing to profuse bleeding. Thus, whenever an opinion is sought from an expert regarding the nature and gravity of the injury, it must, in all events, be firm and definite; either injury is simple, grievous or dangerous to life. It must not be 'may be dangerous to life' or 'can be proved to be dangerous to life if not treated well'; these type of opinions are vague and are not admissible in evidence. There is no scope of speculation in this context. It is expected that henceforth, all the medical officers shall give their opinion in a definite and firm manner without leaving any room for fallacy or a confusing opinion."

Learned counsel further submits that it is manifesting from

the perusal of the statements of prosecution witnesses that after

the incident, instead of getting medical assistance, the victim

chose to rush to the police station to get the FIR lodged and

thereafter he was sent by the Agency to the hospital. This fact

shows that the injury was not so serious. It is further revealing

that on the same day of the incident, the victim was discharged

from the hospital as his general condition was good. Thus, he

submits that neither there was any intent to kill the victim nor the

injuries are sufficient to cause the death in ordinary course of

nature and thus, the facts and circumstances of the case do not

bring the matter within the ambit and scope of Section 307 IPC.

He further submits that the appellants were on bail during the

course of trial and they never misused the liberty granted in their

favour, rather remained present at the time of judgment of

conviction and even now there is no apprehension that they will

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flee from justice and will not be readily available for receiving the

verdict in appeal. The parties are residents of same vicinity. The

judgment impugned requires de-novo appreciation of evidence.

Hearing of appeal would take sufficiently long time, therefore,

allowing further incarceration of the appellants would not be

justifiable.

On the contrary, learned Public Prosecutor and Shri Hastimal

Saraswat, learned counsel appearing for the victim, vehemently

opposed the submissions made by learned counsel for the accused

appellants. It is submitted that even the bail of appellant

Sampatlal was dismissed by this Court and he was given the

concession by the Hon'ble Supreme Court. It is submitted that the

FIR came to be lodged at the behest of wife of the victim, wherein

an endorsement is made that the victim was hospitalized.

Considering the submissions advanced by the learned

counsel for the parties at the Bar and the perusal of the record, at

the stage of hearing the application for suspension of sentence,

this Court refrains from passing any observations on merits of the

case, as the same may put adverse effect on the merit of the

appeal, yet considering the totality of facts and circumstances of

the case, this Court deems it just and proper to suspend the

sentence awarded to the accused-petitioners.

Accordingly, the application for suspension of sentences filed

under Section 389 Cr.P.C. is allowed and it is ordered that the

sentences passed by the learned Additional Sessiions Judge No.2,

Nagaur vide judgment dated 21.11.2022 in Sessions Case No.

53/2009 (01/2010) (76/2011) (200/2015) [CIS No.199/2014)

against the appellants-applicants (1) Sampat Lal S/o Shanker Lal,

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(2) Om Prakash S/o Ram Chandra, (3) Kailash S/o Rameshwar Lal

shall remain suspended till final disposal of the aforesaid appeal

and they shall be released on bail, provided each of them executes

a personal bond in the sum of Rs.1,00,000/- with two sureties of

Rs.50,000/- each to the satisfaction of the learned trial Judge for

their appearance in this court on 17.1.2023 and whenever ordered

to do so till the disposal of the appeal on the conditions indicated

below:-

1. That he/she/they will appear before the trial Court in the month of January of every year till the appeal is decided.

2. That if the applicant(s) changes the place of residence, he/she/they will give in writing his/her/their changed address to the trial Court as well as to the counsel in the High Court.