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2019 DIGILAW 2646 (RAJ)

Anil v. State

2019-10-04

ABHAY CHATURVEDI, SANDEEP MEHTA

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JUDGMENT 1. Heard learned counsel for the parties and perused the material available on record. 2. Learned Public Prosecutor has chosen not to file reply to the application for suspension of sentence and argued the matter orally. 3. Learned counsel Shri Sanjay Mathur, representing the appellant applicant submitted that the accused was a minor on the date of the incident and the charge-sheet was filed in the Juvenile Justice Board. However, his case was sent for trial to the Children Court by treating him to be an adult for the purpose of trial under Section 302 I.P.C. by adverting to the procedure provided under Section 15 of the Juvenile Justice Act. He urged that as per the evidence of the sole eye-witness Smt.Hakri, the allegation of inflicting the first head injury to the deceased Naresh is attributed to the co-accused Ratan and the second blow has been attributed to the accused appellant applicant. He referred to the statement of the Medical Officer Dr.Babu Lal, who conducted post mortem upon the dead body of Naresh and issued the post-mortem report (Ex.P13) wherein, only a solitary head injury was noticed when the autopsy was carried out. He urged that going by the eyewitness account, the said solitary injury would obviously would be ascribable to the co-accused Ratan Devi. Shri Mathur submits that he has been apprised that Ratan Devi has been acquitted after trial by the Sessions Court concerned. He further urged that Dr.Babu Lal did not opine in his evidence that the head injury caused to the deceased was sufficient in the ordinary course of nature to cause death. He thus urged that ex-facie, conviction of the accused appellant applicant as recorded by the trial court is grossly illegal, unjust and as a matter of fact, the learned trial court misread and mis-appreciated the evidence while convicting the appellant applicant for the offence under Section 302 I.P.C. He thus implored the Court to suspend the sentences awarded to the appellant applicant during the pendency of the appeal. 4. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the counsel for the appellant-applicant. 4. Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the counsel for the appellant-applicant. However, he too is not in a position to dispute the fact that as per the evidence of the sole eye-witness P.W.1 Smt.Hakri Devi, the first blow on the head of the deceased Anil was landed by Ratan and thereafter, the accused appellant is alleged to have inflicted the second head injury to him. 5. We have given our thoughtful consideration to the arguments advanced at Bar and have minutely gone through the evidence available on record. 6. We are compelled to state that the doctor, who conducted the post mortem upon the body of the deceased namely Shri Babu Lal Meena, acted in an absolutely casual and lackadaisical manner both while conducting post mortem and while deposing in the court. A perusal of the post mortem report (Ex.P13) would make it clear that the Medical Officer did not even care to open the area underneath the external head injury. The solitary wound was described as head injury (right parietal region) measuring 6x4x3 cm deep sharp blunt injury. However, the post mortem report is absolutely silent regarding the opening of the wound or the symptoms noticed underneath. Even while giving evidence in the court, the doctor never stated that he opened the wound and saw the underlying symptoms. The condition of the skull bones underneath the injury was not mentioned either in the post mortem report or the sworn testimony of the doctor. The learned trial court, while dealing with the prosecution evidence concluded that both the injuries one on the head and the other behind the neck were caused to the deceased on the vital body parts and were opined to be sufficient to cause death. Needless to say that neither in the evidence of the doctor, nor in the post mortem report is it mentioned that any of the injuries caused to deceased was sufficient in the ordinary course of nature to cause death. Furthermore, as the underline situation below the head wound was never examined during post mortem, manifestly, there was no material with the trial court to have adjudged that the injury was sufficient to cause death in the ordinary course of nature. Thus, this Court is inclined to suspend the sentences awarded to the accused appellant applicant. 7. Furthermore, as the underline situation below the head wound was never examined during post mortem, manifestly, there was no material with the trial court to have adjudged that the injury was sufficient to cause death in the ordinary course of nature. Thus, this Court is inclined to suspend the sentences awarded to the accused appellant applicant. 7. Accordingly, the application for suspension of sentences filed on behalf of the appellant-applicant Anil is accepted and it is ordered that the sentences passed by the learned Special Judge, POCSO Act and Protection of Child Right Act, Dungarpur vide judgment dated 11.7.2019 in Sessions Case No.182/2018 (C.I.S. No.182/2018) against the appellant-applicant Anil S/o Late Nanuram Dendor Meena, shall remain suspended till final disposal of the aforesaid appeal and he shall be released on bail, provided he executes a personal bond in the sum of Rs.50,000/- with two sureties of Rs.25,000/- each to the satisfaction of the learned trial Judge for his appearance in this court on 06.11.2019 and whenever ordered to do so till the final disposal of the appeal on the conditions indicated below:- 1. That he will appear before the trial Court in the month of January of every year till the appeal is decided. 2. That if the applicant changes the place of residence, he will give in writing his changed address to the trial Court as well as to the counsel in the High Court. 3. Similarly, if the sureties change their address(s), they will give in writing their changed address to the trial Court. 8. The learned trial Court shall keep the record of attendance of the accused-applicant in a separate file. Such file be registered as Criminal Misc. Case related to original case in which the accused-applicant was tried and convicted. A copy of this order shall also be placed in that file for ready reference. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused applicant(s) does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail. 9. Criminal Misc. file shall not be taken into account for statistical purpose relating to pendency and disposal of cases in the trial court. In case the said accused applicant(s) does not appear before the trial court, the learned trial Judge shall report the matter to the High Court for cancellation of bail. 9. Before parting, we direct that a notice be issued to the Medical Officer Dr.Babu Lal Meena to show cause that in view of the discussion made hereinabove, why appropriate discipliary action should not be directed against him for acting in gross dereliction of duty. The notice shall be served upon the Medical Officer Shri Babu Lal Meena through the Secretary, Medical and Health Department, Govt. of Rajasthan. 10. Copy of this order shall accompany the notice. 11. List the matter on 6.11.2019 for receiving the explanation of Dr.Babu Lal Meena.