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Dr. S.N. Vyas Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCriminal Misc. Case No. 509 of 1965
Judge
Reported in1966CriLJ798
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 367 and 561A
AppellantDr. S.N. Vyas
RespondentState of Rajasthan
Appellant Advocate Bhim Raj, Adv.
Respondent Advocate S.R. Singhi, Adv.
DispositionApplication allowed
Cases ReferredDr. Raghubir Saran v. State of Bihar
Excerpt:
- - from this, it infers that he did not want to make the case clear but to keep it doubtful forever for the reasons best known to him. thus he has failed in the discharge of his duty as a medical jurist. it cannot extend to matters which though ostensibly a part of the judgment are not in reality its integral parts .clearly the high courts, by expunging remarks from an order or judgment of a subordinate court would not in any event be altering it on merits or in any matter of substance but be only deleting from it matter which being alien to the matter before the court ought never to have been there. 11. the learned counsel for the petitioner in the first instance challenged the correctness of certain observations made and the conclusions arrived at in the judgment prior to the.....orderl.n. chhangani, j.1. this is an application by dr. s.n. vyas under section 561-a criminal p. c. praying for the expunction of certain remarks made against him by the additional sessions judge, ganganagar in his judgment dated 30th april, 1965 in sessions case no. 25 of 1964 in which three persons jangsingh, gurdevsingh and ramsingh were tried for offences under sections 447, 304, 304 read with section 34, 324 and 325 indian penal code and were acquitted on the plea of right of private defence.2. the case relates to an incident which happened on 27th april, 3964 at about 7 a.m. in chak no. 20 stg. there was some dispute between the accused and premsingh and dhirsingh over the allotment of 7 bighas of land for temporary cultivation. on the date of the incident the three accused went to.....
Judgment:
ORDER

L.N. Chhangani, J.

1. This is an application by Dr. S.N. Vyas under section 561-A Criminal P. C. praying for the expunction of certain remarks made against him by the Additional Sessions Judge, Ganganagar in his judgment dated 30th April, 1965 in Sessions Case No. 25 of 1964 in which three persons Jangsingh, Gurdevsingh and Ramsingh were tried for offences under Sections 447, 304, 304 read with section 34, 324 and 325 Indian Penal Code and were acquitted on the plea of right of private defence.

2. The case relates to an incident which happened on 27th April, 3964 at about 7 A.M. in Chak No. 20 STG. There was some dispute between the accused and Premsingh and Dhirsingh over the allotment of 7 bighas of land for temporary cultivation. On the date of the incident the three accused went to the land in dispute and began to uproot the crop sown by Premsingh and Dhirsingh and also to overplough it. Hamsingh, Mukhtiar, Premsingh, Dhirsingh along with Thakurram and Narsaram went to the place where the accused were uprooting the crop and prohibited them from doing so. This led to a fight between them in which Narsaram, Thakurram and Ramsingh were injured. As the remarks of the Additional Sessions Judge have been made in connection with the injuries to Narsaram 1 need only refer to the facts relating to his case. Nursaram was initially examined by Dr. O.P. Mehta, Doctor incharge of Hanumangarh Dispensary on 27-4-64. Dr. Mehta sent the injured for X-ray examination to Ganganagar. Dr. S.N. Vyas carried out the X-ray examination and sent three plates to Dr. O.P. Mehta but without giving his own reading of the X-ray plates. It may also be mentioned that injured Narsaram was admitted in the Ganganagar Hospital on 28th of April, 1964, and began to receive his treatment. He was discharged from the Hospital on 1st of May, 1964. On 9th of May he was again admitted as indoor patient in connection with a disease of bacillary dysentery. He, however, died on 15th of May, 1964. Dr. S.N. Vyas conducted post-mortem examination on 16-5-1964. In his postmortem report he noticed fracture of the skull bones-temporal and parietal. In the postmortem report Dr. Vyas mentioned the cause of death as under:

'The basic reason of the death is head injury in this case but it has been precipitated by the acute bacillary dysentery.'

Dr. Vyas was examined as PW/3 in the court of Additional Sessions Judge in the course of the trial on 2-12-64. There is some discrepancy to the date when Dr. S. N. Vyas was examined. The order sheet of 1-12-64 shows that although Dr. Vyas was present in Court he could not be examined on account of the absence of stenographer. The learned Judge further noticed in the proceedings that when the Doctor was initially called in for examination, he was not present and the case was adjourned to 2nd of December, 1964. The proceedings of 2nd December, 1964 shows that the Doctor's statement was recorded on that date. The date mentioned at the top of the statement is 1-12-64, although the Doctor while signing the statement mentioned the: date as 2-12-64. Thereafter, the evidence of other prosecution witnesses was recorded and the defence witnesses were examined. After the case was argued by the counsel for the parties it was reserved for judgment on 15-4-65. At the time of preparing the judgment the learned Judge felt the need of seeking some clarifications from the Doctor on the injuries noticed by him. He was, therefore, summoned as a court witness and was examined as CW/1 on 16-4-65.

3. In the course of his judgment the learned Additional Sessions Judge discussed in great detail the question relating to the cause of death as also the nature of the injuries received by the deceased Narsaram and their sufficiency in the ordinary course of nature to cause death and concluded that Narsaram had died due to the head injury caused by Jangsingh. During the course of discussions, the learned Judge made the following observations adversely affecting Dr. Vyas;

'Dr. Vyas throughout his statement tried to avoid definite answer on his opinion on any point. From the plain reading of his whole statement it appears that he tries to make everything doubtful. He has also avoided to read X-ray plate. From this, it infers that he did not want to make the case clear but to keep it doubtful forever for the reasons best known to him. From this trend of his statement it appears that either he is interested in the accused party or he is not aware of the duty of a Medical Jurist.'

The learned Judge then referred to the statement of the witness that dysentery could not be the cause of death of Narsaram and expressed his inability to understand dysentery was connected with the cause of death. Observing that the Doctor ought to have frankly stated that the cause of death of Narsaram was the head injury and that it was grievous and was fatal, he expressed his disagreement with the witness's opinion that Narsaram could have survived had he not developed dysentery. Observing further that the postmortem examination is always done for knowing the cause of death of deceased, he remarked that Dr. Vyas could not fulfil his duty in this case. Thereafter, the learned Judge referred to a few facts in connection with the fracture of the temporal bone and the reading of the X-ray plates and inferred that the witness tried his utmost to keep the matter of fracture doubtful. He further referred to the statement of the witness that in his opinion the fracture of the skull bones may or may not be sufficient to cause the death of Narsaram in the ordinary course of nature and his answers in connection with the seriousnees of sub-dural haematoma and the comparative fatality of the sub-dural haematoma and extra-dural haematoma and observed that

'in this way Dr. Vyas instead of helping the Court in coming to the right conclusion has made the case more complicated by his superfluous answers. Thus he has failed in the discharge of his duty as a Medical Jurist.'

The Additional Sessions Judge, however, after devoting so much attention to the question as to the cause of death and the sufficiency of the injury to cause death in the ordinary course of nature ultimately acquitted the accused Jangsingh on the ground that he acted in the exercise of right of private defence. The order of acquittal does not appear to have been challenged by the State and has become final.

4. Dr. Vyas feels aggrieved by the observations of the learned Additional Sessions Judge quoted above and considers that they are bound to prove injurious to his future career. He has, therefore, put in an application under section 561-A, Criminal P. C. for the expunction of the above remarks against him.

5. Notice of the application was given to the Government Advocate and the application was heard at some considerable length.

6. At the outset, it will be proper to examine the question of the competence of this Court to order expunction of remarks under Section 561-A, Criminal P. C. It may be mentioned that there was diversity of judicial opinion on this point. In Panchanan Banerji v. Upendra Nath Bhattacharji, AIR 1927 All 193 and in the matter of H. Daly, AIR 1928 Lah 740 an opinion was expressed that Section 561-A Criminal P. C. confers power upon the High Court to modify an order of the lower court by deleting or striking out passages which may be found to be irrelevant and inadmissible and which adversely affect the character of the person before the Court. A contrary view was expressed in P. j. Rogers v. Shrinivas Gopal, AIR 1940 Bom 266 and Bhutnath Khawas v. Dasarathi Das, AIR 1941 Pat 544. The question was examined by a Full Bench of the Bombay High Court in State of Bombay v. Nilkanth Shripad Bhave, AIR 1954 Bom 65 (FB). The Full Bench did not approve of some of the observations in AIR 1940 Bom 266. It posed the question

'Whether a superior Court has inherent power to alter the record, as it were, by changing or altering a judgment which has already been delivered and has become final as far as that particular Court is concerned'

and answered in the negative by observing:

'It is difficult to understand how such an inherent power can possibly arise in a superior Court. A judgment of a lower Court may be wrong; it may even be perverse. The proper way to attack that judgment is by bringing it under the scrutiny of the superior Court and getting the judgment of the lower Court judicially corrected. But is it proper for the superior Court to alter or amend the judgment which has already been delivered? In our opinion, the inherent power that the High Court possesses is, in proper cases, even though no appeal or revision may be preferred to this Court, to judicially correct the observations of the lower Court by pointing out that the observations made by the Magistrate were not justified or were without any foundation or were wholly wrong or improper.'

It was further stated that,

'It would not be correct to say that expunging remarks from a judgment........ constitutesthe inherent power of any superior Court and therefore the inherent power of the High Court.'

Thus, the Full Bench denied the High Court the power to direct expunction of remarks but conceded the power to express Court's displeasure of the observations. This conflict of judicial opinion is, however, now set at rest by a majority judgment of the Supreme Court in Dr. Raghubir Saran v. State of Bihar, AIR 1964 SC 1. The Supreme Court stated the position of law as follows:

'To sum up, every High Court as the highest Court exercising criminal jurisdiction in a State has inherent power to make any order for the purposes of a securing the ends of justice. This power extends to expunction or ordering ex-punction or irrelevant passages from a judgment or order of a subordinate Court and would be exercised by it in appropriate cases for securing the ends of justice. Being an extra-ordinary power it will, however, not be pressed in aid except for remedying a flagrant abuse by a subordinate Court of its powers such as by passing comments upon a matter not relevant to the controversy before it and which is unwarranted or is likely to harm or prejudice another.'

7. During the course of judgment, dealing with the inviolability of the judgment of the courts the majority made the following very significant observations;

'The inviolability which attaches to a judgment must necessarily be confined to its integral parts, that is the verdict and reasons therefor. It cannot extend to matters which though ostensibly a part of the judgment are not in reality its integral parts ........ Clearly the High Courts, by expunging remarks from an order or judgment of a subordinate Court would not in any event be altering it on merits or in any matter of substance but be only deleting from it matter which being alien to the matter before the Court ought never to have been there....As already stated, expunction of irrelevant remarks does not amount to the alteration or amendment of a judgment or an order of a subordinate Court. No doubt, the exercise of such power will have the effect of taking out of the judgment or order something which was there before and thus in a limited way to interfere with the content of the document embodying the judgment or order. But bearing in mind the paramount importance of securing the ends of justice the High Court must be deemed to have such powers'.

Subba Rao J. did not agree with the majority opinion and preferred the view expressed by the Full Bench of the Bombay High Court. All the same, the learned Judge made the following observations for the guidance of the Courts in making aspersions on persons who appear as witnesses or parties before them:

'Even so, a duty is cast upon the Judicial Officer not to deflect himself from the even course of justice by making disparaging and undeserving remarks on persons that appear before him as witnesses or otherwise. Moderation in expression lends dignity to his office and imparts greater respect for judiciary. But occasions do arise when a particular Judge without any justification, may cast aspersions on a witness or any other person not before him affecting the character of such witness or person. Such remarks may affect the reputation or even the career of such person. In my experience I find such cases are very rare. But if it happens, I agree with the Full Bench of the Bombay High Court that the appellate Court in a suitable case may judicially correct the observations of the lower Court by pointing out that the observations made by that Court were not justified or were without any foundation or were wholly wrong or improper. This can be done under its inherent power preserved under Section 561-A of the Code of Criminal Procedure.

8. Although the learned Judges disagreed on the propriety or otherwise of issuing a direction for expunction but so far as the disapproval of such observations are concerned, both the majority and the minority expressed more or less identical views.

9. From the above judgment of the Supreme Court it is clear that:

(1) That High Court has the power to order expunction of the observations made against al person.

(2) That the power will be exercised to! avoid flagrant abuse by a subordinate court. In! other words, the High Court should order expunction in cases where the remarks appear to be not relevant to the controversy and appear to be unwarranted or likely to harm or prejudice any of the persons.

(3) That the Courts should observe moderation and restraint making derogatory aspersions' about persons appearing before them.

10. It is in the light of the above test that the present case has to be examined.

11. The learned counsel for the petitioner in the first instance challenged the correctness of certain observations made and the conclusions arrived at in the judgment prior to the passing of the remarks against the applicant and contends that these unwarranted observations and wrong conclusions have led the learned Judge to condemn the applicant.

12. The learned Judge recorded in the first instance that Doctor was has deposed that he could not read X-ray plate MLC No. 104. This statement of the learned Judge has been challenged by the petitioner's counsel. He urges that the witness never gave a categorical statement of the type referred to by the Judge. He merely stated that he could not read the X-ray plate in court in the absence of a waver box. At a later stage he availed of the waver box and read the plates. In these circumstances, I agree with the counsel for the petitioner that this observation was not warranted.

13. Next, the learned counsel stated that he (witness) has also deposed that he cannot say whether this fracture (referring to the fracture of the skull bones) was the result of injury No. 1 mentioned in injury report Ex. P-9. The learned counsel contends that this was not the correct reading of the witness's statement. He invited my attention to the various portions of the statement of the witness. In the first instance, he referred to the examination of the witness dated 2nd December, 1964 and emphasised the portions of the statement commencing at line No. 3 in the cross-examination of the witness. It reads as follows:

'After seeing injury No. 1 of Ex. P-9 on the person of Narsaram I can say it may be due to mat injury that the head injuries mentioned in the post mortem report have occurred.'

It is pointed out that the learned Judge instead of reading 'can' has read 'cannot' in this part of the statement. The following portions of the statement of the witness were also relied upon by the learned counsel in support of his contention.

Earlier in examination in chief the witness had deposed as follows-

'The internal head injury described by me today and as mentioned in post mortem report Ex. P-15 could be the result of injury No. 1 on the person of Narsaram stated by Dr. Omprakash Mehta in his statement marked Ex. P-16 and injury No. I mentioned in the injury report Ex, P-9 signed by Dr. O.P. Mehta of Hanumangarh Dispensary.'

2. The witness also deposed in his statement dated 16-4-1965 (here again the date mentioned as 15-4-65 appears to be wrong) that

'this fracture could be caused by injury No. 1 of Ex. P-9. This fracture is coinciding with the fracture found by me on post mortem examination of the dead body of Narsaram which is Ex. P-15.'

And, at a later stage it was further stated

'I can definitely depose that the fracture of the skull noticed by me on post mortem examination of Narsaram was the result of or was caused by injury No. 1 mentioned in injury report Ex. P-9.'

14. The various portions of the statements referred to above show that the statement of the witness was not properly read by the learned additional Sessions Judge and his conclusion as to the testimony of the witness on this aspect of the case is vitiated. The counsel for the State also could not oppose the submissions of the counsel on this point.

15. Discussing the witness's statement as to the cause of the death of Narsaram, he quoted the witness as -

(1) giving the cause of death of Narsaram as head injury precipitated by acute bacillary dysentery,

(2) us admitting that dysentery itself could not cause death of Narsaram, and

(3) finally, as deposing that had Narsaram not developed this dysentery he would have survived and would not have died due to the head injury.

The learned Judge interpreted the statement of the witness as implying that ''neither the head injury was the cause of death nor the bacillary dysentery and pointing out that Narsaram has died after the head injury, he observed that

'the above statement of Dr. Vyas cannot be believed when he deposes that Narsaram could have survived had he not developed dysentery.'

Then indicating his disagreement with what he considered a contrary opinion of the witness, he concluded 'therefore head injury was the real cause of the death of Narsaram;

16. Criticising the above discussion, the counsel for the petitioner submitted:

(1) That the learned Judge did not properly read and interpret the statement of the witness. The statement of the witness reads as follows: 'Had Narsaram not developed dysentery then he might have survived.'

It was pointed out that the learned Judge read the word 'would' for 'might' and further wrongly understood him as stating so that 'in the absence of dysentery' the deceased would not have died due to head injury. It was urged that the witness by merely referring to the chances of survival of the deceased cannot be taken to have suggested that the deceased would have necessarily survived in the absence of dysentery and that the cause of death was other than the head injury. The counsel also referred to the following portions of the statements of the witness to show that the witness was treating head injury as the cause of death. In his statement dated 1-12-64 the witness has clearly stated that the head injury is potentially a dangerous injury and that the basic reason of the death is the head injury in this case although he added that death had been precipitated by the acute bacillary dysentery. In his second statement as a court witness the witness further stated that it was wrong to suggest that Narsaram died due to bacillary dysentery and not due to the head injury.

17. After considering the statement of the witness as a whole. I am led to the conclusion that the witness treated the head injury as the cause of death of Narsaram and the learned Judge was hardly accurate in interpreting his opinion differently and expressing his disbelief of the statement of the witness. The learned Judge seems to have unduly stressed the witness's reference to dysentery as precipitating the death of Narsaram and the possibility of survival of Narsaram in the absence of dysentery in inferring that the witness was not treating head injury as the cause of death of Narsaram. The witness by suggesting that bacillary dysentery precipitated the death cannot be taken to mean that the head injury could not have at all proved fatal. Correctly interpreted, his opinion was that the head injury might have caused death in the absence of dysentery but was not necessarily fatal and there might have been chances of survival. It may be pointed out that to say that an injury is not necessarily fatal and may or may not prove fatal, cannot be equated with saying that the injury cannot be treated as the cause of death.

18. After going through the statement of the witness I have no hesitation in concluding that Dr. Vyas treated the head injury as the cause of death and the learned Judge was hardly accurate in interpreting the opinion differently and observing that the statement of the witness cannot be believed on this aspect of the case. I may also mention that the learned Judge was discussing a charge under Section 304 Indian Penal Code of which also the accused Jangsingh was exonerated on a plea of right of private defence and it is not clear to me why the learned Judge thought it necessary to enter into this discussion which requires a consideration of very subtle and fine points of distinction.

19. All this above discussion is not directly related to the controversy calling for determination in the present application. Since the learned counsel made lengthy submissions in this behalf, I thought it proper to refer to them as an introduction providing a proper back-ground for the determination of the controversy actually calling for determination. The observations against the witness have been quoted earlier. The learned Judge started with observing that the witness tried to avoid definite answer or his opinion on any point. I expected the learned Judge at this stage to indicate the points on which the Doctor avoided definite answer or opinion so that the observations could have been properly appreciated. He has not chosen to do so. There are however discussions at a later stage in the judgment bearing on this point and in all fairness I think it proper to address myself to them. At one stage, he says, that he (the witness) is still not very clear that the fracture of Narsaram was sufficient to cause his death in the ordinary course but avoided definite answer on this point thai in his opinion it may or may not be sufficient to cause death of Narsaram in the ordinary course of nature. It appears that the witness was not prepared to express a positive opinion that the injury was necessarily sufficient to cause the death of the injured. Me held the opinion that the injury may or may not be sufficient to cause death.

20. A reference to Modi's Jurisprudence at page 252 shows that the fracture of the skull bone though dangerous need not always end in death. He has referred to several instances where the deceased survived fractures of skull bones. In this view of the matter, the witness's opinion cannot even be recorded as incorrect. At any rate, it will be hardly proper to treat this as an avoidance of expression of definite opinion. It was open to the Additional Sessions Judge to arrive at his own conclusion on the opinion expressed by the witness and the circumstances of the case, but he was hardly justified in concluding that the witness failed to give definite opinion simply because he was inclined to differ from the opinion expressed by the witness. Secondly, the learned Judge refers to the answer given by the witness that sub-dural haematoma is not necessarily serious and fatal but fatality depends upon its extent. Considering the general question and the general answer, I do not find any adequate reason to treat this answer of the witness as also amounting to avoiding a definite opinion. Similarly, the learned Judge referred to the answer of the witness that it is not necessary that sub-dural haematoma is dangerous than the extra-dural haematoma. This again cannot amount to avoiding giving definite opinion.

It may be usefully pointed out at this stage that the medical witnesses as experts called upon to express .opinions cannot always be in a position to form definite opinions as to the precise sufficiency of specific injuries to cause death--keeping in view the present knowledge of human physiology and medical sciences and (sic) Judges on various occasions did not approve of dogmatic expression of opinions. The learned Judge indeed failed lo take note of the handicaps and limitations under which all experts including medical witnesses have to function as also of the fact that in the very nature of things there is always a reasonable possibility of difference of opinion on some matters. Judges even though they feel inclined to differ from the opinion expressed by medical witness should not lightly impute motives and cast aspersions on witnesses and should do so only when there are sufficient materials on record to justify such aspersions.

21. In the light of these considerations, the learned Judge was hardly justified in concluding that the witness tried to avoid definite answer or opinion on any point and that from the plate reading of his whole statement it appears that) he tries to make everything doubtful.

22. There was also no basis or foundation for the further remarks that he did not want to make the case clear but to keep it doubtful forever for the reasons best known to him. The learned Judge went further and observed that the Doctor was either interested in the accused party or was not aware of the duty of the Medical Jurist. No materials have been indicated in the judgment for the above observations which appear to me to be unwarranted. At some earlier stage after some discussions I have recorded conclusions that the witness's statement as to the causal connection between injury No. 1 and the fracture of skull bones and as to sufficiency or otherwise of fracture of bones to cause death and on the fatality of the sub-dural haematoma and the comparative fatality of the sub-dural and extra-dural haematoma is not open to criticism. I, therefore, find no justification for the further remarks of the Judge

'In this way Dr. Vyas instead of helping the court in coming to the right conclusion has made the case more complicated by his superficial answers. Thus he has failed in the discharge of his duty as a Medical Jurist.'

These observations are likely to affect the reputation of Dr. Vyas and to affect his future career and they have been made without proper basis.

23. Besides, these observations do not form an integral part of the judgment. Proceeding to give my reasons, I may state that the Additional Sessions Judge recorded a verdict of acquittal in favour of the accused Jangsingh. That verdict of acquittal was arrived at with a finding that the accused Jangsingh was acting in the exercise of right of private defence. If the accused acted in the exercise of right of private defence and therefore committed no offence it was hardly necessary for the Additional Sessions Judge to have entered into a discussion of the nature of the injury and the intention of the accused to cause injury either likely to cause death or sufficient in the ordinary course of nature to cause death. Looked at from that angle, these observations are alien to the judgment of the Additional Sessions Judge.

24. Secondly, the accused Jangsingh was charged with an offence under Section 304 Indian Penal Code only and not under Section 302 Indian Penal Code. In connection with a charge under Section 304 the Additional Sessions Judge was only concerned with the question whether the injury was likely to cause death and was not at all concerned with the case whether the injury was sufficient in the ordinary course of nature to cause death. It is significant that the Additional Sessions Judge did not amend the charge under Section 304 to Section 302 and yet he entered into discussion of the Doctor's statement as if to determine whether the defence would be one under Section 302 or Section 304 and unnecessarily commented upon the Doctor's statement that the deceased might have survived in case he had not developed bacillary dysentery. Thus considering the verdict of acquittal and also the fact that the Additional Sessions Judge was considering a charge under Section 304, the discussion of the Additional Sessions Judge dealing with the statement of Dr. Vyas was not relevant and cannot be said to form an integral part of the judgment. The observations against Dr. Vyas are thus not only wholly unjustified but are quite alien to the judgment of the trial Judge and since they affect his career, I have no alternative but to order their expunction on the principle laid down by the Supreme Court.

25. Mr. Gurtu and Mr. Chattarji and Mr. Singhi who appeared at different stages of the case did not make any effort to justify the aspersions made by the Additional Sessions Judge and they have supported the submissions made on behalf of the petitioner's counsel.

26. I, therefore, allow the application anddirect that the offending remarks against the applicant which have been quoted above, may beexpunged.


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