While ruling on the evidentiary value of doctor's opinion, the Gwalior Bench of the Madhya Pradesh High Court has in a significant development in a learned, laudable, landmark and latest judgment titled Balli Chaudhary alias Rakesh vs State of MP in CRR 1080 of 2021 : 2022 LiveLaw (MP) 19 delivered on January 19, 2022 has minced just no words to observe plainly that the opinion of a doctor is relevant evidence under Section 45 of the Evidence Act, but it can rarely take the place of substantive evidence and it cannot be conclusive because it is only opinion evidence. The Single Judge Bench of Justice Rajeev Kumar Shrivastava observed so as it dismissed a criminal revision plea filed by one Balli Chaudhary against the order of framing of charges against him under Sections 307, 34 and 452 of IPC. Very rightly so!
To start with, the single Judge Bench of Justice Rajeev Kumar Shrivastava first and foremost deems it fit to put forth in para 1 of this notable judgment that, The present criminal revision under Section 397 r/w Section 401 of CrPC has been preferred assailing the order dated 02/03/2021 passed by Second Additional Sessions Judge, Dabra, District Gwalior (MP) in Sessions Trial No.16 of 2021,whereby charges under Sections 307, 34 and 452 of IPC have been framed against the applicant.
While elaborating on facts, the Bench then envisages in para 2 that:
In brief, facts of the case are that complainant Parmal Singh Bundela recorded a Dehati Nalishi at Police Station Bhitarwar, stating therein that he is staying in village Kahriya and running a grocery shop. Accused Rinku Chaudhary Rinku molested his daughter, therefore, on the date of incident i.e. 07/09/2020, he along with her daughter, had gone to the medical dispensary, (CHC), Bhitarwar and the police personnel had also come there. When he was in injection room, applicant- accused along with other co-accused persons who were armed with sword & hockey stick, entered in the room of medical dispensary and accused Balli Chaudhary alias Rakesh inflicted injury on his head by means of hockey stick as a result of blood started oozing.
On that basis, FIR bearing Crime No.409/2020 has been lodged for offence under Sections 307, 323, 34 of IPC at Police Station Bhitarwar. Thereafter, the complainant was medically examined. Afterwards, the applicant was arrested and a hockey stick was recovered from his possession. Statements of witnesses were recorded and after completion of investigation and other formalities, challan was filed by police before the Court below by which, charges under Sections 307/34, 452 of IPC have been framed. Hence, this revision.
On the one hand, the Bench points out in para 3 that:
It is submitted by counsel for the applicant that there was no intention on the part of applicant to cause death of the complainant and as per opinion of doctor, the injury caused to the complainant was not sufficient to death in the ordinary course of nature, therefore, no case is made out against the applicant under Section 307 read with Section 34 of IPC. It is further submitted that no offence under Section 452 of IPC is made out against the applicant because Section 452 IPC prescribes that there shall be house trespass with intention to cause hurt and assault. The alleged incident is said to have been taken place at the medical dispensary which is an open place for public, therefore, it cannot be said to be an act of house trespass. Hence, the impugned order passed by the Court below cannot be sustainable in the eyes of law. Therefore, it is prayed that the impugned order of framing charges passed by the learned Court below be set aside and the present revision deserves to be allowed.
On the other hand, the Bench then discloses in para 4 that:
Learned Counsel for the State supported the impugned order of framing charges and submitted that prima facie offence is made out against the applicant. It is further submitted that considering medical evidence as well as statements of complainant and witnesses, prima facie, offence is made out. From the possession of applicant-accused, applicant who was armed with a hockey stick has been recovered. No ground is made out for quashment of charges framed against the applicant and, hence, prayed for dismissal of present revision.
Needless to say, the Bench then observes in para 5 that:
I have considered arguments advanced by learned counsel for the parties and perused the documents available on record.
Quite significantly, the Bench postulates in para 8 that:
In the case of Union of India Vs. Prafulla Kumar Samal and another [(1979) 3 SCC 4], it is held by the Apex Court as under:-
10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
- That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
- Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
- The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
- That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
Far most significantly, the Bench then elegantly, eloquently and effectively states in para 14 what forms the cornerstone of this commendable, cogent, composed and convincing judgment that:
So far as the contention of the applicant that there is no overt act on the part of applicant- accused for commission of alleged offence is concerned, the same is not acceptable because if common intention is proved but no overt act is attributed to the individual accused, Section 34 of IPC will also be attracted. Common intention means a premeditated plan and acting in pursuance to such plan, thus common intention must exist prior to the commission of act in a point of time. So far as the contention of the applicant that the doctor has not opined that the injury was of such nature and was sufficient to cause death in the ordinary course of nature is concerned, the said contention is also not acceptable. Although the opinion of doctor is relevant in view of provisions of Section 45 of Evidence Act, but that too is not conclusive.
The opinion of doctor is an evidence and it can rarely, if ever, take the place of substantive evidence and it cannot be conclusive because it is after all opinion evidence. In the present case, applicant along with other co-accused persons with common intention reached the spot, i.e. the medical dispensary and the applicant has inflicted injury on the head of complainant by means of hockey stick, which is fully supported by medical evidence and evidence of witnesses. The learned Court below has considered the material with a view to find out if there is ground for presuming that the accused person has committed the offence.
The Court below has analyzed the material for the purpose of finding out whether or not prima facie case against the accused has been made out. The truthfulness of statements or circumstances or documents of prosecution cannot be questioned at this stage by defence. On the basis of material on record, the Court could form an opinion that accused might have committed an offence. It is established that at the time of framing of charges, there is no scope to appreciate the entire evidence in details. The Court below has examined the case and found prima facie case against the applicant by which charges have been framed against him.
Finally and as a corollary, the Bench then forthrightly concludes by holding in para 15 that:
In view of aforesaid discussion as well as law laid down by Hon'ble Apex Court & this Court, it is clear that whether the accused has committed an offence or not, can only be decided in the trial. I find no perversity or illegality in the order impugned passed by learned Court below warranting any interference by this Court at the stage of framing of charges. Accordingly, revision fails and is hereby dismissed. A copy of the order be sent to the Court below for information and compliance.
In essence, it goes without saying that the key takeaway that can be derived from what we have discussed herein aforesaid is that while it is no doubt true that doctor's opinion is relevant under Section 45 of the Evidence Act but it can't take the place of substantial evidence. Of course, all the Judges must definitely abide by what the Gwalior Bench comprising of Justice Rajeev Kumar Shrivastava has laid down so briefly, brilliantly and bluntly in this leading case also! No denying it!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
