MANOHARLAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The petitioners are aggrieved by the order dated 23.4.2008 passed by Additional Sessions Judge (Fast Track), Sikar, whereby the learned Judge has framed charges for the offences under Sections 143, 148, 323, 341, 326 alternatively 326/149, 307 alternatively 307/149 and 302/149, 307 alternatively 307/149 and 302 alternatively 302/149 IPC against the accused petitioners. Briefly, the facts of the case are that on 28.8.2004 Parcha Bayan of Neki Ram, an FIR was chalked out at Police Station Khandela, District Sikar. According to Neki Ram, in the evening after having completed his work on his farm, he was coming back on his tractor along with his father, and his two nephews Mahendra and Mahipal. As they came near the village, Manohar, Phoola, Shyopal, Jhabar, Mohan, Birbal, Babulal and their wives stopped the tractor. Neki Ram was pulled down from tractor and assaulted by Manohar, who had a 'Dantali' in his hand. He caused injury on the forehead near his left eye. He was also assaulted with stones. He further claimed that both his father and nephews were equally assaulted. Having escaped from the clutches of the assailants, he further claimed that they came to hospital where the Parcha Bayan was recorded. After the investigation, the police submitted a charge-sheet for offences under Sections 143, 148, 149, 323, 341, 324, 307, 326, 302 IPC. Vide order dated 23.4.2008, the learned Judge framed the charges as aforementioned. Hence, this petition before this Court.

(2.) Mr. Ashvin Garg, the learned counsel for the petitioners, has vehemently raised the following contentions before this Court: firstly, the offence under Section 302 IPC is clearly not made out in the present case. Secondly, that in the FIR lodged by Neki Ram, he neither mentions the presence of the deceased, Surja Ram, nor mentions about any injury caused by the petitioners to Surja Ram. Thirdly, that according to the injury report of Surja Ram, although the incident is said to have occurred on 28.8.2004, his injury report was not drawn till 29.8.2004. Moreover, according to the injury report, Surja Ram has suffered two injuries, namely, a bruise and swelling on the lateral aspect of the left side of forearm and secondly a complaint of pain. According to the injury report, the injuries were caused within twelve hours. Fourthly, according to the Post-mortem Report of Surja Ram, the probable cause of death was fat embolism. Relying on Lyon's Medical jurisprudence and Toxicology, Revised by Prof. T.D. Dogra and Lt. Col. Abhijit Rudra (Delhi Law House, 2005), the learned counsel has contended that fat embolism is "a complication of fractures of bones that have a fatty bone morrow or where subcutaneous fat is either compressed or lacerated. Fat globules are released into the circulation and they eventually reach the lungs and brain. It might also occur in burns, surgical operations on fatty tissue, septicemia, and a host of other conditions". However, according to the learned counsel, none of these conditions exist in the present case. Therefore, the very cause of death is unknown. Lastly, that Surja Ram expired nine days after the alleged incident. Thus, there is no linking evidence between the alleged injuries caused by the petitioners and his death. Therefore, prima facie, no offence under Section 302 IPC is made out.

(3.) On the other hand, Mr. Anoop Dhand, the learned counsel for the complainant, has raised the following contentions before this Court: firstly, that according to the prosecution, two incidents had occurred, one immediately after the other. While the first incident was of assault on Neki Ram, his father and nephews. In the second incident, immediately following the first one, the petitioners as assailants had also come to the house of the deceased. They had not only assaulted the deceased, but had also assaulted the women of the family. In order to buttress this contention, the learned counsel has relied on the statement of Surja Ram, the deceased himself. Moreover, he has relied on the statement of Smt. Vimla, the wife of Neki Ram, who was an eye-witness to both the incidents. Secondly that according to the Post-mortem Report, the deceased had suffered a fracture of he lower end of the radius and fracture of the left femur bone. Both these bones are known as "long bones". Relying on the Pocket Companion to Cecil Textbook of Medicine by Lee Goldman & J. Claude Bennette, (21st Edition) the learned counsel has contended that "fat embolism commonly occurs in the setting of traumatic fracture of long bones." Also relying on Merck Manual of Diagnosis & Therapy, (18th Edition) written by Mark H. Beers and others, he has further contended that "fat embolism is caused by introduction of fat or bone marrow particles into the systemic venous system and then to pulmonary arteries. Causes include long bone fractures, orthopedic procedures etc." According to the learned counsel, since both the left femur and the radius were fractured. Thus, a gave possibility does exists that the particles of fat from either of these bones may have entered into circulatory system of the deceased and may have caused his death nine days after the alleged incident. Thirdly, that according to the witnesses, the occurrence took place in the late evening of 28.8.2004; the injury report of Surja Ram was drawn on 29.8.2004 in the morning at 9.40 a.m. therefore, the observation of the doctor that the injuries were caused within twelve hours, in fact, supports the case of the prosecution. Lastly, considering the statement of the eye-witnesses, considering the medical evidence, a strong prima facie case is made out against the petitioners for offence under Section 302 IPC. Hence, the learned counsel has supported the impugned order.