TINU Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Heard the learned counsel for the parties and gone through the niceties of the matter.

(2.) Bereft of elaborate details, briefly stated the facts of the case are that the petitioners were charge-sheeted for committing offences under Ss. 406, 498-A, 323, 325 read with 34 of IPC while keeping the investigation pending to the extent of the other persons, namely, Smt. Kanta and Kaushalya. Upon filing of the charge-sheet, the learned trial Court took cognizance of the offence under above-mentioned Ss. and proceeded further and whereafter heard the parties on the question of framing of charges and passed an order of framing charges against them for offence under above-mentioned Ss. and commenced the trial vide the order dtd. 14/5/2010. After commencement of trial, three witnesses were examined on behalf of the prosecution to substantiate the charge. 2.1 Here at this juncture, a twist comes in the matter when a supplementary report is submitted on behalf of the SHO concerned contending therein that after thorough investigation, the involvement of the other persons, namely, Smt. Kanta and Kaushalya were not found correct and, therefore, a closure report to their extent was submitted. At the same time, the SHO mentioned in the report that offence under Sec. 307 of IPC also made out against the present petitioners who were on the trial and for which, three witnesses had been examined till date. It would be worthwhile to mention here that no investigation towards the act of the accused had been kept pending while filing the charge-sheet. It would also be pertinent to mention here that the material viz. the statements of the prosecution witnesses and the injury reports were already on record before the trial Court and after making consideration of the same only, the charges were framed. Vide the order under challenge to the effect that since Sec. 307 of IPC has also been added which is exclusively triable by a Court of Session, therefore, commitment of the case would require and accordingly, he directed to commit the case for trial to the Court of Session.

(3.) This Court is of the view that simply based upon the opinion of Investigating Officer at a subsequent stage, an offence under Sec. 307 of IPC could not been added in the charge-sheet, particularly, in circumstances where the statements of witnesses and M.L.C. report had been considered by the trial Court while hearing on the question of charge and the order to that effect had been passed. True it is that by exercising power under Sec. 216 of Cr.P.C., the Court can alter or amend the charges but this situation comes when after commencement of the trial, some material is brought on record in the shape of evidence not merely on filing of an application by the Investigating Officer suggesting the Court of incorporation of Sec. 307 of IPC also. The opinion of the Investigating Officer can never be conclusive, binding or decisive, rather it is opinion of the Court and application of its mind which would prevail. When the learned trial Court had made up its mind after taking into account the injury reports and the statements of the witnesses and passed an order of framing of charges under Ss. 498 A, 406, 323, 325 read with 34 of IPC then it cannot be allowed to review its own order at a subsequent stage simply because a report is submitted by the SHO. In my view doing so would mean revisiting or reviewing its own order which was passed on an earlier stage when directions for framing of charges were made. Sec. 362 of Cr.P.C. makes complete bar upon a criminal Court to review its own order or finding or sentence. In the case of Adalat Prasad Vs. Rooplal Jindal & Ors. reported in AIR 2004SC 4674, Hon'ble the Supreme Court has enunciated the law and expounded that a criminal Court becomes functus officio after passing any order and only clerical and arithmetic errors can be rectified. 3.1 Viewing the case from the another angle while taking into account the further opinion of a Medical Officer dtd. 10/1/2010 to the effect that the injuries received by victim Smt. Bharti may be "dangerous to life" and, therefore, in view of the opinion of the Medical Jurist, the charge under Sec. 307 of IPC was added. I am of the view that the FIR came to be lodged on 3/1/2010 and the report was prepared on 10/1/2010 and the charge-sheet came to be submitted only whereafter and the above fact was already in the notice of the trial Court, therefore, revisiting the document again and giving a second opinion on framing of charges is nothing but an abuse of process of law. Otherwise also, this Court is of the opinion that whenever an opinion is sought from an expert upon an injury, it should be definite, certain and should not be vague, evasive or uncertain. Dealing with the above question, this Court has made elaborate discussion in the case of Samane Khan & Ors. Vs. State of Rajasthan & Ors. (S.B. Criminal Revision Petition No. 128/2023, decided on 10/5/2023) the relevant part of which is reproduced hereinbelow:- "21. Admittedly, it is shocking that when after examination of the victim by the Medical Officer as well as by the radiologist, an opinion regarding the nature and number of injuries had been obtained on 1/7/2022 then, how the same Medical Officer after seven days of the incident that too, without examining the victim or without considering further details regarding victim's health record can give a second opinion contrary to the first. Be that as it may. The opinion is not firm in nature, which ought to be because it is called an opinion of Expert. 22. Sec. 45 of the Indian Evidence Act envisages regarding opinion of the experts as per which When the Court has to form an opinion upon a point of foreign law or of science, or art, or as to identity of handwriting [or finger impressions], the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions ]are relevant facts. Such persons are called experts. It is expected from an expert that his opinion must be firm and should not be vague, bald or evasive or dependent upon the contingencies. The injuries should be opined to be simple or grievous in nature. The phrase used by the doctor that the "injuries might be life threatening if not treated on time" is not an opinion given by an expert doctor serving in Community Health Center. Such type of opinion can be given by any rustic villager or an illiterate person. Why the opinion is sought from the doctor, if can't give a definite opinion. There is no opinion on record that the said injury was sufficient in ordinary course of nature to cause death. The crux of the provision contained under Sec. 45 of the Indian Evidence Act is that whenever a Court of law that feels it should seek an opinion on the aforementioned point, then it is expected that it would seek opinion from a person, who is specially skilled in such law, science or art etc. It means that ultimately, the opinion of the expert is sought only for the assistance of the Court and thus, it can be said that the Court is the expert of the experts. Whenever, an opinion is sought regarding the nature of injuries; it must be given by a specifically skilled person so as to bring him in the definition of "expert" on that particular point. It must not be fallacious or fallible as the same may instead of assisting the Court, mislead or confuse the Court. Thus in my view, the opinion should be firm and definite and only in that situation the same is admissible in evidence under Sec. 45 of the Evidence Act. The vague, bald, probable, infirm or uncertain opinion is not an opinion of an expert, therefore, the second opinion given by the doctor dtd. 7/7/2022 is in no manner can be taken as a report submitted by an expert rather a cloud of doubt arises as to what was the occasion for the Investigating Officer to seek or for the doctor to give the opinion without examining the victim injured or without examining his medical documents."