In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Revision No.2653 of 2010 ..... Date of decision:27.9.2010 Dr. Narayan Chaudhary .....Petitioner v. Dr. N.K. Sharma .....Respondent .... Present: Mr. Manoj Kaushik and Mr. Abhishek Sethi, Advocates for the petitioner. ..... S.S. Saron, J. The criminal revision petition has been filed by the petitioner- complainant against the order dated 3.8.2010 (Annexure-P.4) passed by the learned Judicial Magistrate Ist Class, Faridabad whereby the complaint of the petitioner alleging commission of offences under Sections 323, 342, 307 and 506 Indian Penal Code (`IPC' – for short) has been dismissed. The petitioner-complainant has alleged that he is running a private clinic under the name `Dr. Narayan Chaudhary' in the Main Market Sector 24, Mujessar, Faridabad. He has a good reputation in the society. The respondent is also a doctor and running a private nursing home under the name of `Sharma Stone Clinic & Urological Centre' (Sharma Nursing Home). The complainant was suffering from acute pain on account of stone in the left side of his kidney. On the representation of the respondent which he displayed on the Board outside his clinic of removing stones without surgery, the complainant-petitioner considered him as a specialist and went for his advice for removal of the stone. The complainant-petitioner was Cr. Revision No.2653 of 2010 [2] assured of removing the stone in the first attempt. A sum of Rs.50,000/- inclusive of all expenses except medicines was settled for the removal of stones. The medicines were to be purchased from the shop of the respondent. The complainant was operated upon on 1.6.2001. A substantial amount was spent on the operation but the stone was not removed from the kidney. The complainant-petitioner was again operated upon on 7.6.2001 but the stone could not still be removed. The petitioner-complainant was to undergo another operation to remove the stones for which an amount of Rs.25,000/- was agreed to be paid; besides, a guarantee was given to remove the stones from his kidney. However, the respondent failed to remove the stones despite the complainant-petitioner being operated upon thrice. For this the complainant-petitioner suffered pain, mental agony as well as loss of blood. On 21.7.2001 at 6.00 p.m., the complainant went to the nursing home of the respondent along with his wife Meera Devi and showed ultrasound report which showed that four stones were there. He requested the accused to clear all the stones from his kidney as agreed but the accused demanded Rs.25,000/- more for operation of removal of balance stones. The petitioner told the accused-respondent that in case he does not remove the stones from his kidney he would file a complaint against him before Senior Police Officers that he had been cheated. On hearing this, the accused-respondent lost his patience and self-control and beat the petitioner-complainant in the presence of his wife and one Parkash son of Surya Dev Parshad who was per chance there for his check-up. The accused-respondent asked his Compounder to take the petitioner in a room and that a final operation would be done. One Compounder unknown to the Cr. Revision No.2653 of 2010 [3] complainant caught hold of him from his neck and slapped him on account of which he received several injuries on his ear and eye. The respondent- accused threatened to kill the petitioner if he goes to the Police. The petitioner-complainant was rescued by Parkash from the clutches of the accused. He was taken to Government Hospital where he was medically examined. The complainant also received injuries on his neck when the accused tried to strangulate him. The petitioner made a complaint to the Senior Superintendent of Police, Faridabad on 21.7.2001 at his residence, who referred his case to S.H.O. of Police Station N.I.T., Faridabad. However, the said S.H.O. compelled the complainant-petitioner to compromise the matter with the accused-respondent by saying that Dr. Sharma (respondent) is a very influential person and has relations with the District Administration and other Senior Police Officers; besides, the Executive and Judicial Officers, get their treatment from his nursing home. On the next day, the complainant went to the Police Station and he was told by one Head Constable that a case under Sections 452 and 506 IPC has been registered against him and he was advised to arrive at a compromise. The petitioner-complainant was not allowed to come to his house and was produced before the Illaqa Magistrate in a false case and was granted bail. The Police instead of taking action against the accused-respondent had booked the petitioner-complainant in a false case and no action has been taken against the accused. The learned Chief Judicial Magistrate, Faridabad recorded the statements of Dr. Narayan Chaudhary, complainant (PW-1), his wife Meera Devi (PW-2), Parkash son of Surya Dev (PW-3) and Dr. Sudhir Khurana, Cr. Revision No.2653 of 2010 [4] Medical Officer, B.K. Hospital, Faridabad (PW-4). After recording the statements, the learned Chief Judicial Magistrate vide order dated 25.2.2002 (Annexure-P.1) summoned the respondent. After summoning the complainant, the aforesaid witnesses for the purpose of their examination stated that their statements recorded at the time of pre-summoning be read as their statements for the purpose of framing charge. The said witnesses were cross-examined by the respondent and after cross-examination, the learned Judicial Magistrate Ist Class after considering the material on record vide order dated 3.8.2010 (Annexure-P.4) has discharged the respondent, which order is assailed by way of this petition. Learned counsel for the petitioner has contended that the learned Magistrate while passing the impugned order dated 3.8.2010 (Annexure-P.4) has not considered the allegations in the complainant that the complainant was beaten-up on 21.7.2001 and he was examined by Dr. Sudhir Khurana (PW-4). Therefore, it is submitted that the learned Magistrate has gravely erred in discharging the respondent vide order dated 3.8.2010 (Annexure-P.4). It is submitted that the respondent was liable to be charged and proceeded against for beating-up the petitioner. A reference has been made to the statement of Dr. Narayan Chaudhary (PW-1), the statement of Meera Devi (PW-2), the statement of Parkash son of Surya Dev (PW-3) and the statement of Dr. Sudhir Khurana (PW-3); besides, the cross-examinations of PW-1, PW-2 and PW-3. It is stated that a perusal of the said statements as also the MLR dated 21.7.2001 (Annexure-P.5) clearly show that the respondent has been wrongly discharged. A reference is also made to Section 245 of the Code of Criminal Procedure (`Cr.P.C.' - for Cr. Revision No.2653 of 2010 [5] short) to contend that the respondent has wrongly been discharged under Section 245 Cr.P.C. as the petitioner's case is supported by all the witnesses. I have given my thoughtful consideration to the contentions of the learned counsel for the petitioner and perused the record. The primary grievance of the petitioner is that the allegation in the complaint that the complainant was beaten on 21.7.2001 and he was examined by Dr. Sudhir Khurana (PW-4) has not been considered by the learned Magistrate while passing the impugned order dated 3.8.2010 (Annexure-P.4). The statement of Dr. Sudhir Khurana (PW-4) shows that on 21.7.2001 he medically examined Narayan Chaudhary (petitioner) and he found the following injuries on his person: “1. Contusion and swelling left side of face around left eye and nose. There was history of bleeding nostrils X-ray nose was advised. Patient was complaining of blurring of region. Opinion of eye surgeon was sought. 2. Swelling proximal inter phlangeal joint of right middle finger.” After X-ray and opinion the injuries were opined to be simple in nature and both had been caused by blunt weapon within duration of 24 hours. The petitioner has placed on record the statement of Dr. Sudhir Khurana (PW-4) recorded in examination-in-chief. However, the cross- examination of Dr. Sudhir Khurana (PW-4) has not been placed on record although the cross-examination of the other witnesses who were examined i.e. Dr. Narayan Chaudhary (PW-1), Meera Devi (PW-2) and Parkash (PW- 3) have been placed on record. Besides, the opinion of the Eye-Surgeon, which was asked to be obtained, it is not shown whether it was obtained and Cr. Revision No.2653 of 2010 [6] if obtained what are its results. The contention of the learned counsel that the learned Judicial Magistrate Ist Class, Faridabad in the impugned order dated 3.8.2010 (Annexure-P.4) has not considered the allegations of the complainant- petitioner being beaten up are incorrect. The learned Magistrate in his impugned order has noticed that initially the complaint was filed for the offences under Sections 323, 342, 307 and 506 IPC. However, vide order dated 25.2.2002 (Annexure-P.1) a prima facie case was made out for the offences under Sections 342, 323 and 506 IPC. No offence under Section 307 IPC was held to be made out. It is also observed that the complainant was locked in a room and he had been beaten inside the room and Meera Devi (PW-2)-wife of the complainant was outside the room. Hence she could hear the complainant but could not see him. Meera Devi (PW-2) has deposed that Parkash (PW-3) managed to forcibly open the door and thereafter rescued the complainant. It has been observed by the learned Magistrate that it is no where so mentioned either in the complaint or in the statements of the complainant recorded at two different stages. Besides, the witnesses though had deposed about bleeding from the complainant's eye but in the cross-examination of the complainant, there is acceptance that he had ear and eye problem for which he was treated at AIIMS. Therefore, any loss to his eye as alleged in the complaint, it was observed, cannot be attributed to be result of the alleged act against the accused. It is also noticed that in the cross-examination the complainant (PW-1) deposed that the incident occurred at around 6.00 p.m. on 21.7.2001 but time was not mentioned in the complaint. Besides, the MLR shows that the complainant Cr. Revision No.2653 of 2010 [7] was examined on 21.7.2001 itself but the time of examination is not mentioned, however, from the complainant’s own deposition it is to be beyond 6.00 p.m. on 21.7.2001 but prior to 12.00 a.m. on 22.7.2001. As such the duration of the injuries which were suffered at 6.00 p.m., it was held, cannot be opined to be 24 hours if the injured had been examined during the period of six hours between 6.00 p.m. on 21.7.2001 to 12.00 a.m. on 22.7.2001. Therefore, it was opined that this is a definite ground for holding that the accused has been falsely implicated by the complainant. In view of the above conclusion and reasons recorded by the learned Magistrate, the contentions of the learned counsel for the petitioner that allegations in the complaint that the complainant was beaten up on 21.7.2001 and was examined by Dr. Sudhir Khurana (PW-4) have not been considered are incorrect and the same, in fact, have been duly considered. It may in fact be noticed that the complaint that has been filed by the petitioner has not been placed on record although other material has been placed on record. For the failure to place the complaint on record an adverse inference is liable to be drawn against the petitioner. Although, learned counsel for the petitioner has contended that the gist of the complaint is mentioned in the summoning order dated 25.2.2002 (Annexure-P.1), however, in order to appreciate the contentions the complaint was liable to be place on record the complaint as well. Be that as it may, the statements of Dr. Narayan Chaudhary (PW-1), his wife Meera Devi (PW-2) and Parkash (PW-3) have been perused. Besides, Dr. Sudhir Khurana (PW-4) whose only examination-in- chief is on the record has also been perused. Dr. Narayan Chaudhary (PW- Cr. Revision No.2653 of 2010 [8] 1) has submitted that he had stones in his left Kidney for which he consulted the respondent, who had advised that he would remove the stones. Despite operation the stones could not be removed and from the ultrasound that was got done four stones were found to be there in the Kidney. On 21.7.2001, it is the case of the complainant that while he was complaining to the respondent regarding the failure of the operation and his continuous demand for fee, the respondent started hitting him (complainant) on his neck and ear and started beating him. The Compounder of the respondent kicked him on his back after he lay him down. Then they dragged him to a room and locked the room and started pressing his throat and the respondent said that he would kill him (complainant) if the complainant complained to anybody. Blood started oozing from his ear and from the eye and he suffered an injury on the middle finger of his right hand. His wife Meera Devi (PW-2) was present with the complainant and she raised an alarm and cried for help. Then Parkash (PW-3) came to his rescue and he got the complainant freed from the accused otherwise they would have killed him. A perusal of the said statement of the complainant indeed shows that the complainant had been locked in a room and was beaten by the respondent after he was dragged into a room by his Compounder. The Compounder of the respondent though is said to be involved in the incident has not been arrayed as an accused. Besides, the learned Magistrate has rightly held that the other witnesses i.e. Meera Devi (PW-2) and Parkash (PW-3) did not see the actual incident of the complainant being beaten and they could only hear him. Indeed, according to the complainant's own stand he was locked in a room. Meera Devi (PW-2) wife of the complainant with respect to the Cr. Revision No.2653 of 2010 [9] incident that occurred has stated that at 6.00 p.m. in the evening she along with her husband was at Sharma Nursing Home and her husband was talking with Dr. Sharma (respondent). The date of the incident i.e. 21.7.2001 is not mentioned in the statement of Meera Devi (PW-2). In any case, it is alleged by Meera Devi (PW-2) that respondent caught her husband and started hitting his eye and he also gave injuries to her husband along with the help of his Compounder. According to the complainant (PW-1) he was dragged into a room and thereafter was beaten by the respondent and his Compounder, however, in the statement of Meera Devi (PW-2) the allegation that the complainant was dragged into a room is not mentioned. It is further alleged by Meera Devi (PW-2) that one Parkash (PW-3) had come for treatment and he rescued the husband of the complainant. Parkash (PW-3) has been examined and he also does not mention the date of the incident although he gives the time of incident as 6.00 p.m. when he had gone to Sharma Nursing Home. It is alleged that the complainant and the respondent were involved in a heated discussion and suddenly a fight started between them and they dragged the complainant on the floor and gave him beating. When he (Parkash) (PW-3) tried to rescue the respondent he was bleeding from his eye and ear. Parkash (PW-3) does not mention that the beating had occurred inside the room which is the stand of the complainant (PW-1). Besides, Parkash (PW-3) is a chance witness and it is proverbially rash to rely on the testimony of a chance witness. In the circumstances, there are inconsistencies in the statement of the complainant (PW-1) who has stated that at the time of the incident on 21.7.2001 he was dragged to a room and the room was locked and thereafter Cr. Revision No.2653 of 2010 [10] his throat was pressed and he was threatened to be killed; whereas Meera Devi (PW-2) and Parkash (PW-3) in their statements do not mention the fact that the complainant was dragged to a room. The injuries suffered by the complainant are simple in nature. The learned Magistrate in the order dated 3.8.2010 (Annexure- P.4) has observed that the MLR was silent about the examination of the complainant but from the complainant’s own deposition it was between 6.00 p.m. on 21.7.2001 and prior to 12.00 a.m. on 22.7.2001. The duration of injury suffered at 6.00 p.m., it was observed, cannot be opined to be that of 24 hours if the injured (complainant) had been examined during the above mentioned six hours. According to the learned Magistrate this action was a definite ground for holding that the complainant had implicated the accused. There is nothing to dislodge the said conclusion reached at by the learned Magistrate. In the facts and circumstances, no ground for interference with the impugned order dated 3.8.2010 (Annexure-P.4) is made out. Consequently, there is no merit in this criminal revision petition and the same is accordingly dismissed. September 27, 2010. (S.S. Saron) Judge *hsp*