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Madhya Pradesh High Court · body

2020 DIGILAW 192 (MP)

Vinay Yadav And Another v. State Of M. P.

2020-02-06

ANAND PATHAK

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JUDGMENT Anand Pathak, J. - Looking to the commonality of facts, this order shall govern the disposal of all the applications. 2. M.Cr.C.No.36301/19 is the second application, whereas other two applications are the first application, preferred by the applicants under Section 438 of Cr.P.C. wherein they are apprehending their arrest in a case registered at Crime No.119/2019 at Police Station Bhander, District Datia, for the offence under Sections 323, 324, 326, 341, 336, 294, 506, 34 of IPC. First application on behalf of applicants in M.Cr.C.No.36301/19 was dismissed as withdrawn 3. It is the submission of learned counsel for the applicants that applicants are apprehending their arrest on the basis of registration of offences referred above. It is the submission of learned counsel for the applicants that they are implicated on false pretext. Earlier the facts could not be brought on record in correct perspective before this Court, and therefore, M.Cr.C.No.36301/2019 has been filed in the shape of second application. As per the allegations after the cultivation of their agricultural field when the complainant party was coming back home, applicant No.1 in M.Cr.C.No.36301/19 allegedly tried to restrain them by obstructing the road through tractor and abused them. When the complainant asked not to abuse, applicant- Harimohan opened fire in air and applicant Karan Singh came with axe and inflicted blow over the head of the complainant, as a result of which blood oozed out. Other applicants and co-accused also participated in the incident. Applicant No.2 in M.Cr.C.No.36301/19 also sustained injuries and it is a case of false implication because cross-case has also been registered against the complainant (and six other persons) on the same day. 4. As per the case of prosecution, complainant Shailendra Singh Yadav sustained injuries in the skull and initially case was registered under Sections 323, 294, 324, 341, 506, 336, 34 of IPC, but later on Section 326 of IPC was included because of the medical opinion given by the duty doctor namely Dr. D.S.Suman. Concerned duty doctor found fracture over the skull of the complainant and opined accordingly. 5. It is further submitted that applicants moved two representations before the Superintendent of Police, Datia, on 1.7.2017 and 2.7.2017 and mainly prayed for medical examination of the complainant before the Medical Board because it was the allegation of the applicants that medical report was false and fabricated. 5. It is further submitted that applicants moved two representations before the Superintendent of Police, Datia, on 1.7.2017 and 2.7.2017 and mainly prayed for medical examination of the complainant before the Medical Board because it was the allegation of the applicants that medical report was false and fabricated. On the basis of false medical report wherein fracture of skull has been referred, complainant has tried to build up a false case. While referring a book (Outline of Fractures by Adam's), learned counsel for the applicants submits that repair of fractured bone leaves callus formation, and therefore, a fractured bone or skull can always be deciphered about previous history of injury and here when matter was referred to the District Medical Board and thereafter at G.R. Medical College, then reports of the doctors indicate that no fracture has been caused to the complainant, therefore, it is apparently clear that concerned duty doctor either was casual in his medical examination or was supporting the complainant party so that stringent penal provision can be imposed over applicants. 6. It is further submitted that in fact complainant party was aggressor and they have beaten up the applicants and now the complainant is trying to implicate them on false pretext. Applicant party sustained severe injuries. 7. Learned counsel for the respondent/State opposed the prayer and prayed for dismissal of the applications. 8. Learned counsel for the complainant although opposed the prayer, but also produced literature over broken bone and fracture healing and tried to demonstrate that how the fractures are healed up in phased manner. He referred Modi's Medical Jurisprudence and refers the age of skull injury by submitting that in about seven days the edges of a fissured fracture usually just stick together by serous exudate, in about 14 days the edges of the affected bones are slightly eroded and some calcium deposits are also found on the inner table of the skull. In about a month to three months bands of new bony tissue union is found along the crack. The edges will be smooth and rounded if not touching and the gap is joined by fibrous tissue. He fairly submits that if a fracture is caused, then even after healing of fracture, it can be deciphered that earlier bone was broken. Therefore, according to him, doctor ought to have been more vigilant while expressing his opinion regarding fracture. 9. The edges will be smooth and rounded if not touching and the gap is joined by fibrous tissue. He fairly submits that if a fracture is caused, then even after healing of fracture, it can be deciphered that earlier bone was broken. Therefore, according to him, doctor ought to have been more vigilant while expressing his opinion regarding fracture. 9. Since parties, specially counsel for the applicants raised serious doubt about the report given by the duty doctor about fracture over skull, therefore, this Court issued notice to the doctor for explanation and he was duly represented by the counsel. 10. According to learned counsel appearing for duty doctor Dr. D.S. Suman fractures over skull are different than fractures over other parts of the body and at times depressed fracture is not discernible or at times apparently depressed skull because of impact of object looks like depressed fracture, therefore, he was not able to decipher it properly. 11. Learned counsel also raised point regarding old x-ray machine and submits that old x-ray machine is not precise enough to give results and at times this error of judgment may happen. On behalf of Dr. Suman, learned counsel tried to defend him by taking recourse to medical jurisprudence and different aspects of it regarding fracture healing and submits that if any error of judgment has been made by the duty doctor, then it may be treated as human error and be excused accordingly. He learnt the lesson hard-way and now he would be cautious in his endeavours in future. 12. Heard learned counsel for the parties at length and perused the case diary. 13. It is a case where applicants have raised the point that complainant Shailendra Singh Yadav never received fracture over his skull and duty doctor (Dr. D.S.Suman) in his medical examination referred the medical opinion that complainant sustained fracture, and therefore, offence under Section 326 of IPC was added. In these applications, applicants have levelled the allegation over the complainant and duty doctor that they caused incorporation of offence under Section 326 of IPC on false pretext. Therefore, this Court vide order dated 11.9.2019 directed District Medical Board, Datia, to examine complainant Shailendra Singh Yadav son of Premchand Singh Yadav afresh and matter was placed on 18.9.2019. On that day, counsel for the State sought time to comply the order. Matter was placed on 23.9.2019. Therefore, this Court vide order dated 11.9.2019 directed District Medical Board, Datia, to examine complainant Shailendra Singh Yadav son of Premchand Singh Yadav afresh and matter was placed on 18.9.2019. On that day, counsel for the State sought time to comply the order. Matter was placed on 23.9.2019. Thereafter matter was placed on 24.9.2019 and on said date CMHO, District Datia Shri R.K.Sharma appeared and informed this Court that Distt. Hospital and Medical College, Datia, has no facility of radiology, therefore, matter was referred to G.R. Medical College (Radiology Department) Gwalior and direction was given to conduct x-ray/other radiological examination, if required. Ultimately on 27.9.2019 medical report of complainant was filed and the relevant portion of the said report is reproduced as under :- "Opinion- No bony injury seen in skull -AP -Lat - No bony injury seen in Lt FA -AP -Lat - No bony injury seen in CT Head." 14. From the medical report, it is apparently clear that no injury by way of fracture of skull was sustained by the complainant. Since x-ray conducted over G.R. Medical College and x-ray conducted at Bhander by Duty Dr. Suman carry two different opinions, virtually diametrically opposite, therefore, there is a reason prima facie for this Court to opine that complainant tried to aggravate implication over the applicants by incorporating ingredients of severity in list of offence. This Court personally examined the radiological x-ray film of complainant in which no fracture per se over the skull is apparently visible. This Court is not resting its opinion on the basis of perusal of x-ray film, but resting its opinion on the basis of medical report given by Radiology Department of G.R. Medical College, Gwalior. Even if for a minute it is assumed that fracture was healed by the time, second opinion was obtained, even then it could not have been very well deciphered by second team of G.R. Medical College. As per the literature provided by counsel for parties, there exist three phases of fracture healing; one is Inflammatory Phase, which is marked by formation of a hematoma in the injured bone. This hematoma is caused as a result of bleeding from the ruptured bone and the periosteal vessels that are formed within the medullary canal and beneath the periosteum. Another phase is Proliferative Phase or Fibroplasia Process. This hematoma is caused as a result of bleeding from the ruptured bone and the periosteal vessels that are formed within the medullary canal and beneath the periosteum. Another phase is Proliferative Phase or Fibroplasia Process. As fibroplasia phase begins, necrotic bone resorption is carried out by osteoclasts that are derived from the circulating monocytes in the blood and by monoblastic precursor cells originating from the local bone marrow. This phase is characterized by the formation of callus and begins with continued vascular ingrowth and third is Remodeling Phase which involves the formation and mineralization of the callus and replacement of the mineralized callus with mineralized bone and sculpting of the bone back to its original shape, size, and biomechanical competency via modeling and remodeling. Perusal of the literature provided by the counsel for the parties indicates that to enhance the stability and strength at the fracture site, the size of the callus must be sufficiently large to compensate for the relatively poor strength of primitive bone. 15. Learned counsel for the parties also referred the variables that influence fracture healing. Internal variables like blood supply, osteogenic response, mechanical factors and patterns of injury constituting internal variables, whereas external variables include Low Intensity Pulsed Ultrasound, bone stimulators, COX-2 and radiation. 16. Here the medical opinion given by doctor itself indicates that xray has been conducted on 24.6.2019 wherein Dr. Suman has given opinion about fracture over the skull and the offence itself is of same date i.e. 24.6.19, therefore, injuries have been immediately taken care of. This Court is not oblivious of the fact that reference of fracture over skull has wider and severe implications in a case so far as legal impact is concerned, therefore, if any opinion which changes the direction of investigation or gravity of offence, then it has the trappings of interference in the fair investigation and fair trial and this is a right available to the complainant as well as accused because allegations are at primary stage. 17. From the perusal of medical opinion given by Dr. Suman and medical opinion of the Medical Board of G.R. Medical College (Radiology Department) as well as the physical examination conducted by Distt. 17. From the perusal of medical opinion given by Dr. Suman and medical opinion of the Medical Board of G.R. Medical College (Radiology Department) as well as the physical examination conducted by Distt. Medical Board, Datia, (without x-ray) indicate that fracture was not in the skull but apparently in the mind because linear dissemination of information got fractured when wrong information was given by the duty doctor because if the information of fracture would not have been given, then all other offences were bailable in nature or at least not of grievous nature as that of Section 326 of IPC. 18. Therefore, in the opinion of this Court, applicants deserve to be enlarged on anticipatory bail. It is directed that applicants shall be released on bail in case of their arrest on their furnishing personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand Only) each with one solvent surety each in the like amount to the satisfaction of Arresting Authority/Investigating Officer. 19. This order will remain operative subject to compliance of the following conditions by the applicant:- i). The applicants will comply with all the terms and conditions of the bond executed by them; ii). The applicants will cooperate in the investigation/trial, as the case may be; iii). The applicants will not indulge themselves in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to the Police Officer, as the case may be. iv). The applicants will not commit an offence similar to the offence of which they are accused; v). The applicants will not seek unnecessary adjournments during the trial; and vi) The applicants will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be. 20. Before parting, facts of the case compelled this Court to contemplate about the nature of implications and at times harassment of a common man when incorrect medical opinions are given by duty doctors either because of their inadequate knowledge, inadequate resources or because of some extraneous factors and common man suffers, therefore, it is the duty of the doctor when he refers the injury, that he should refer the injuries in clear and categorical terms and must know that his opinion may affect life of a person. 21. 21. He is expected to show his skill and thoughtfulness not from his knife/scissors (medical equipments), but from his Pen also. Since in this case duty doctor, namely Dr. Dharmendra Singh Suman has extended his apology for his misreading and expressed his desire not to commit same fault again, therefore, benefit of doubt is given to him and he has been exonerated but this Court deprecates such casualness. While sending a copy of this order to the Principal Secretary, Health and Family Welfare and to Director Prosecution, Bhopal, this Court expects that suitable directions shall be issued to all the duty doctors at Government Hospitals in the State to be more vigilant and sensitized regarding medical opinions given by them in mediolegal cases and that too their opinion should not suffer from griffonage (unreadable writing) and should be clear and readable and if possible a typed format be prepared for different exigencies (like in cases of rape, a typed medical opinion is usually provided) so that this approach would not only help in proliferation of rule of law but also instill a sense of confidence in the medical reports prepared by the duty doctors. The Principal Secretary, Health and Family Welfare as well as Director Prosecution may conduct some workshops or sensitization programme in this regard to further the cause of justice. Before parting, this Court extends its appreciation for the assistance given by the counsel for the parties. With the aforesaid, all the M.Cr.Cs. stand disposed of. A copy of this order be sent to the Principal Secretary, Health and Family Welfare and Director Prosecution Bhopal for information and compliance. This Court expects that within three months some affirmative steps shall be taken by the authorities. Place this matter in the month of May, 2020 under the caption 'Direction' to receive compliance report from the State Authorities. Certified copy as per rules.