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2016 DIGILAW 155 (CAL)

Amal Nath v. State of West Bengal

2016-02-10

JOYMALYA BAGCHI

body2016
JUDGMENT : Joymalya Bagchi, J. The revision petition has been filed praying for quashing of proceeding in Hura P.S. Case No. 71 of 2010 dated November 2, 2010 under Section 197/201 of the Indian Penal Code sofar as it relates to this petition. 2. It appears that the aforesaid case was initially started under Section 302/364/201/120B/34 of the Indian Penal Code with regard to the murder of one Sudhakar Mudi whose dead body was found lying in a dry well with various injuries on his person. In course of enquiry the petitioner as the autopsy doctor opined in the post mortem that the death of the victim was accidental in nature. Subsequent thereto the criminal case was registered against the accused person as well as the petitioner for murder, disappearance of evidence and other offences. Initially investigation resulted in filing of a final report against the petitioner. However, on further investigation supplementary charge-sheet was submitted under Section 197/201 of Indian Penal Code and cognisance was taken thereon. Petition is before this Court challenging such proceeding initiated against him. 3. Mr. De, appearing on behalf of the petitioner submitted that the materials collected in the course of investigation do not unequivocally point out that the petitioner had played a role in screening the offender by giving opinion as to accidental death. He further submitted that the expert report which was obtained from the Medical Board does not give a definite opinion as to the cause of death. He also submitted that there is nothing to show that the petitioner had been persuaded by the other accused persons to give such opinion. 4. On the other hand Mr. Basu appearing for the State has placed the documents collected in course of further investigation particularly the report of one Dr. Suparna Datta, Associate Professor and Head, Dept. of FSM, BSMC Bankura wherein it is opined that the cause of death of Sudhakar Mudi was due to violent mechanical asphyxia by strangulation. The cause of death was homicidal in nature. It has also been opined in the said report that opinion of the petitioner in the post mortem report is not in terms of settled principles of medical jurisprudence. So far as the opinion that death was accidental there is no mud present in the trachea and therefore, such opinion is wholly unfounded. It has also been opined in the said report that opinion of the petitioner in the post mortem report is not in terms of settled principles of medical jurisprudence. So far as the opinion that death was accidental there is no mud present in the trachea and therefore, such opinion is wholly unfounded. Furthermore, blood oozing from mouth and nostrils of the victim & passing of stool in fact point towards homicidal strangulation Thereafter a medical board was constituted where both opinions were placed for considered and the possibilities of cause of death was enumerated as follows;- 1. Due to effects of dry drowning associated with head injury. 2. Due to head injury following fall or trauma. 3. Due to asphyxia with irrespirable gas associated with head injury. 5. On a comparative analysis of the aforesaid opinions, it appears that the opinion of the petitioner in expressing that the death was accidental in nature was not wholly unwarranted not borne by the materials on record or supported by any contemporaneous body of medical view. It is also a fact that investigating agency also did not accept such opinion of the petitioner and had proceeded to file charge sheet against other accused persons for murder. Therefore, to come to a finding that the opinion of petitioner in the postmortem report that the death was accidental in nature was correct would, in fact, amount to prejudging the prosecution case as a whole. That apart, whether such erroneous opinion of the petitioner doctor was out of negligence or prompted by an unholy intention to screen the accused persons is a matter to be considered only after the unfolding of the prosecution evidence and not at this premature stage. Accordingly, it is held that as the opinion of the petitioner doctor that the death of the victim was accidental in nature is not supported by anybody of medical experts or settled principles of medical jurisprudence, it would be imprudent to quash the proceeding against the petitioner at this stage. I however, clarify that it would be open to the petitioner to agitate to all issues canvassed before me at the appropriate stage of the proceeding including the stage of framing of charge upon being supplied with all necessary documents in the supplementary charge-sheet under Section 207 Cr. P.C. after his appearance before the Trial Court. I however, clarify that it would be open to the petitioner to agitate to all issues canvassed before me at the appropriate stage of the proceeding including the stage of framing of charge upon being supplied with all necessary documents in the supplementary charge-sheet under Section 207 Cr. P.C. after his appearance before the Trial Court. I am informed that the petitioners has been granted anticipatory bail. He is forthwith directed to appear before the Trial Court and participate in the proceeding in accordance with law. I further record that as supplementary charge sheet has been filed against the petitioner under Sections 197/201 of Indian Penal Code cognisance taken against the petitioner shall be treated in respect of such offences alone. 6. With these observations, the revisional application, is disposed of. Revisional application disposed of.