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2019 DIGILAW 366 (RAJ)

Bhagwan Sahay v. State of Rajasthan

2019-01-31

KANWALJIT SINGH AHLUWALIA

body2019
JUDGMENT Kanwaljit Singh Ahluwalia, J. - By this common order, S.B. Criminal Misc. Petition No.473/2018 and S.B. Criminal Misc. Petition No.4515/2018 both preferred by same petitioners, shall be decided together. 2. In S.B. Criminal Misc. Petition No.473/2018 prayer has been made by the accused-petitioners that medical board be constituted for evaluation and re-examination of injured Soni Devi as investigating agency had wrongly come to the conclusion that offence under Section 307 IPC is made out, whereas in second petition bearing S.B. Criminal Misc. Petition No.4515/2018, petitioners have prayed that order of cognizance dated 19.2.2018 passed by the Court of Additional Chief Judicial Magistrate No.1, Shri Madhopur, District Sikar, be set aside as the said court has wrongly taken cognizance of offence falling within the ambit of Section 307 IPC. 3. Shri H.P. Singh, learned counsel for respondent No.2 complainant, has placed before this court report of Radiologist. As per report of Radiologist, linear non-displaced fracture of left temporo-parietal bone was found on the person of injured Soni Devi. 4. Learned counsel for the petitioners has contended that occurrence had taken place on 16.12.2017. Soni Devi remained hospitalized in SMS Hospital, Jaipur till 23.12.2017 and no opinion of the Doctor was obtained that the above said injury is sufficient to cause death in the ordinary course except for timely medical aid. Learned counsel has submitted that opinion of the Doctor regarding nature of the injury on the person of Soni Devi was obtained from a private hospital. 5. Learned counsel for the respondent-complainant has submitted that already trial court has framed charge for offence under Section 307 IPC against accused Babu Lal. It is contended that charge against accused Bhagwan Sahay could not be framed as on the said date he was absent and the next date fixed before the trial court for framing charge against Bhagwan Sahay is 4.2.2019. 6. I have heard learned counsel for the parties. 7. The arguments raised by the learned counsel for the petitioners are liable to be rejected for following reasons:- (a). That charge under Section 307 IPC is not dependent upon causing of injury. Even an attempt made to cause injury on the head of injured, may itself be sufficient to frame charge under Section 307 IPC. (b). 7. The arguments raised by the learned counsel for the petitioners are liable to be rejected for following reasons:- (a). That charge under Section 307 IPC is not dependent upon causing of injury. Even an attempt made to cause injury on the head of injured, may itself be sufficient to frame charge under Section 307 IPC. (b). That considering the injury on the person of injured Soni Devi i.e. sufferance of a fracture on the left temporo-parietal region, prima facie it can be safely inferred that the petitioners have made an attempt to commit murder. (c). That it is settled legal position that charges should be framed for the higher offence so that trial court is not found wanting later. (d). That mere delay in giving opinion by the Doctor is not sufficient to hold that no offence under Section 307 IPC is made out. (e). That even if opinion is obtained from private Doctor, the court cannot become oblivious of the fact that Soni Devi injured has suffered fracture of left temporo-parietal bone and there can be no distinguish between the opinion of private doctor or government doctor as petitioners will have sufficient opportunity to impeach the credibility of the Doctor during the course of cross-examination. In view of above, both the petitions being devoid of merits, are dismissed. However, it is made clear that nothing stated herein above shall be construed as an expression on the merits of the case.