Identity Cards to Voters E.C.'s Directive — Without Jurisdiction

(T.P. Diaz, Advocate, Thrissur)

As it is reported, that a meeting of State Chief Ministers, convened by the Union Home Minister, on 19lh of January, 1994 has expressed their willingness to implement the "Photo identity card scheme" in a phased manner - as it is the "general consensus" emerged at the meeting. But the Chief Election Commissioner rejected the suggestion made by the conference and reiterated that he would stand by his decision of not holding elections in the country after January 1st, 1995 if the scheme is not implemented before the stipulated time and explained in his "usual ebullient and eloquent style" that the scheme "cannot be phased, it will have to be faced", (as reported by The Hindu dated 21-1-94) Here an attempt is made to face it legally on the basis of Articles of the Constitution, sections of the Representation of the People Act, Registration of Electors Rules, 1960, Conduct of Election Rules, 1961, Precedents and decisions of the Supreme Court.

Article 324 of our Constitution confers full powers on the Election Commission, in matters of superintendence, direction and control of the preparation of the Electoral rolls for, and the conduct of all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice President. Now, the question that gathers momentum at present, or dealt with in this article, is, since the commission being a creature of the constitution whether it can exercise its powers so as to supercede the provisions and Rules framed thereunder for the conduct of Elections.

Articles 327 and 328 of the Constitution specifically confer on the Parliament and Legislatures of States, powers to make provisions with respect to all matters relating to or in connection with elections to either House of Parliament or Legislature of State respectively, including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.

From the above summary of the provisions of Law, it can be seen, the powers conferred on the Election Commission, can only be supervisory in nature and no authority to make law has been conferred on it. Whereas, it is abundantly made clear, the authority to make provisions for the conduct of elections, vests with the Parliament and State Legislatures. The powers of the commission under Art.324, shall in no way, supercede the provisions of the Representation of the People Act, Rules and conduct of Election Rules framed thereunder. The powers of the commission have been calculated only "to supplement rather than supplant" the law in the matters of superintendence, direction and control, as provided by Art.324. But the Legislative Authority or Power conferred on the Parliament and Legislatures, have been once again bed-rocked, when included under Entry 72 of List I (Central List) and Entry 37 of list II (State List) of the seventh schedule appended to the constitution. But the exclusive jurisdiction of the commission to execute in regard to matters, imparted to it as couched in the Act and Rules, cannot be challenged.

But the Plenary powers of the Commission can be exercised, where this Act or Rules, are silent with regard to matters for the safe and smooth conduct of election. Here looms large the question whether the Acts or Rules adumbrate any method, to identify the voters in case of any dispute arises.

Sections 40 to 51 of the Representation of the People Act (43/51) deal with provisions regarding the appointments of Election Agents and Polling agents. S.49 empowers the polling agents to perform such functions earmarked by the Rules framed thereunder. Conduct of Election Rules (1961), Rules 12 & 13 deal with the appointments of Election and Polling Agents, respectively. Rule 35, contemplates "the identification of electors", thus:—The Presiding Officer may employ at the polling station such persons — to help in the identification of electors. Here "such persons" mean Election and Polling Agents (for their appointments also, Rules, Notification, qualifications etc. prescribed) who are armed to help officer in the identification of the electors, even by "challenging" the identity of an elector (Rule 36) which will lead to a summary trial even. Rule 35(3) says, where the Polling stations - the Electors of which have been supplied with identity cards under R.28 of the Registration of Electors Rule. 19,60, "the elector shall produce his identity card". It is evident from this that Parliament has not resolved to identify electors by means of an identity card. The Legislature has very cautiously empowered the Election Commission only to introduce the card system for Registration under R.28 of the Registration of Electors Rules, 1960; and significantly not under the Conduct of Election Rules, 1961. And that too, to be confined to certain polling stations only after due gazette notification. This will bear ample testimony that the Legislature has not even intended to introduce it as a method for identifying the electors for the whole Nation, nor intended to supersede the General, time-honoured practice of identifying the electors by the Polling Agents, as covered by the statutes and rules.

This method of identifying electors by agents may not be so fool-proof, as the photo identity card system. But the question is whether the Election Commission can change it? The Commission is not free to issue any directive which will have the effect of amending, Act or Rule in this regard enacted by Legislative Bodies. A mere reading of S.61 of the Representation of People Act, on which the commission hangs upon now, will convince that Rules are yet to be framed for preventing personation of electors. Section 61 reads thus, "with a view to preventing personation of electors provision may be made by rules made under this Act";— 61(b) "for the production before the Presiding Officer or a polling officer of a polling station by every such elector as aforesaid of his identity card before the delivery of a ballot paper or ballot papers to him if under rules made in that behalf under the R.R. Act (43 of 1950) electors of the constituency in which the polling station is situated, have been supplied with identity cards with or without their respective photographs attached thereto;" Section 169 of the same Act (43 of 1950) empowers the Central Government to "make rules for carrying out the purposes of this Act", of course after consulting the Election Commission. Then how does the Election Commission assume jurisdiction?

Our Supreme Court had occasion to consider an identical position in an Election case. (A.C. Jose v. Sivan Pillai Reported in AIR 1984 S.C. 921; 1984 (2) SCC 656, 1984 KLT 510). Supreme Court reversing the decision of the Kerala High Court, quashed the Election Commissioner's Notification directing the use of voting machines in some polling stations and further held that the Notification was issued by the Election Commission without jurisdiction. The method of voting in India, has been contemplated by "Ballots" only (Rules 49 of Conduct of Election Rules and Section 59 of the Representation of People Act) and the Notification for the use of voting machines was contrary to the provisions of Act and Rules and so held without jurisdiction. Similarly the present direction by the Election Commission also is contrary to the provisions of the Act and Rules, in so far as the "ratio decidendi" of that decision, still holds good.

There is no difference of opinion from any quarters regarding the introduction of identity card scheme. The mal-practice of impersonation should be curbed at any cost. Compared to the vast ocean of electorates in India, the number of cases of impersonation is negligible. Does the Election Commission consider all the Indian voters are malpractitioners so as to carry identity cards? Will the benefit or purity of identity, derived by the card system, commensurate with the exorbitant financial drain on the Exchequer, at least, at this juncture of the financial crisis of the Nation? Ignore the possibility of forged identity cards. Still the suggestion has been accepted by all concerned. Why can't its implementation be stopped then for some time? Atleast till the Parliament frames rules in this regard. Why should the Election Commission show undue haste to transgress into the Legislative sphere exclusively kept apart for the Lawmaking Bodies, especially when our Supreme Court has decreed that the Election Commission shall not act as a "third chamber in the Legislative process"?

A Comment on 1994 (1) K.L.T.141

(By E.K. Ramakrishnan, Advocate, Payyannur)

After the advent of the Kerala Court Fees and Suits Valuation (Amendment) Act, 1991 (Act 6 of 1991) which came into force with retrospective effect from 5-12-1990, the litigant public are benefited considerably. The amendment Act was the result of a long pending demand for abolition of court fee.

It is clear from the Amendment Act that, the intention of the legislature was to minimise the financial liability of the litigant by reducing the rates of court fee. By the insertion of S.4A and proviso to S.52 to the Principal Act, the financial burden of a litigant to institute/file a suit or appeal has been further minimised.

But the decision rendered by His Lordship Mr. Justice K.P. Balanarayana Marar in State Bank of India v. Iqbal Zacharia, (1994 (1) KLT 141) is a set back to one of the beneficial aspects of the Amendment Act.

Section 4A reads thus:

"Notwithstanding anything contained in any other provisions of this Act, the amount of fee to be paid on plaint at the time of institution of suit shall be one tenth of the amount of fee chargeable under this Act and the balance amount shall be paid within such period, not later than 15 days from the date of framing of issues or where framing of issues is not necessary, within such period not exceeding 15 days as may be specified by the court. Provided that the court may for sufficient reasons to be recorded in writing extend the period upto 30 days. Provided further that if the parties settle the dispute within the period specified or extended by the court for the payment of the balance amount, the plaintiff shall not be called upon to pay such balance."

According to the 2nd proviso "if the parties settle the dispute" the plaintiff need not pay the balance nine-tenth court fee. The outcome of a settlement of dispute by the parties would be (1) Dismissal of the suit as it is not pressed or withdrawn by the plaintiff (2) Decreeing the suit solely on the admission of the defendant or (3) a compromise decree as contemplated in Order 23 R.3 of CPC.

As per S.4A, the time to pay the balance court fee is fixed solely on the basis of framing of issues.

Issues need be framed only in cases where the plaint claim is denied or disputed by the defendant. If the defendant disputes the plaint claim, the plaintiff is bound to pay the balance 9/10 court fee within the prescribed extended time after the framing of issues.

On the other hand, if the defendant is ex-parte or admits the plaint claim, there is no question of framing of issues. Though in both cases there is no framing of issues, the situations are somewhat different, i.e. it is a settled rule of law that if a defendant does not appear and answer the plaint claim as provided under C.V Rule 1 of C.P.C., the presumption is that he admits the plaint claim. So an ex-parte decree is the result. But that decree is not final as it can be set aside. But if the defendant entered appearance and admits the plaint claim, the normal meaning is that there is no dispute between the parties to be investigated by the court. A decree solely on the admission of the defendant is the result. That decree is final too.

As such, it is clear that in the case of an ex-parte decree there is no settlement of dispute by parties. But a decree solely on the basis of the admission of the defendant is the result of a settlement of dispute between parties.

As an exparte decree is not the result of a settlement of dispute by the parties as contemplated in the 2nd proviso to S.4A of the Act, the plaintiff is bound to pay the balance court fee. As I mentioned above, in this case also there is no necessity of framing the issues. Anticipating this situation it is stated in S.4A" or where framing of issues not necessary". Hence even in a case in which framing of issues is not necessary as the defendant is exparte, the plaintiff is bound to pay the balance court fee, obviously for the reason that the dispute is not settled by the parties.

A compromise decree also is the result of settlement of dispute by the parties. So in that case also, the plaintiff need not be called upon to pay the balance court fee. But the stage of reaching the compromise has got relevance while determining the balance court fee. A compromise can be entered into at any stage of the suit. If the compromise is reached atleast before the framing of issues, definitely the benefit of S.4A can be granted to the plaintiff. Whereas if the compromise is reached after the framing of issues, definitely the balance court fee should be paid by the plaintiff. Then his recourse is to invoke S.69 of the Act for getting the refund of half the court fee.

The term "admission of the parties" depicts a situation where there is no dispute between the parties. In such circumstance the suit is decided without conducting any enquiry because there is no dispute to be enquired into. In other words, admission of the plaint claim tantamounts to settling the dispute between the parties. If S.4A is interpreted in its plain language, the plaintiff need not pay the balance court fee if the defendant is admitting the plaint claim.

After the amendment Act, the operation of S.69 is confined only after the framing of issues or rather after the payment of the balance 9/10 court fee. As per S.69, when a suit is compromised or when a suit is decided solely on the admission of the parties without any investigation, half the court fee is to be refunded. From the plain interpretation of S.4A and the provisos, it is clear that the compromise and admission of the parties mentioned in S.69 is pertaining to a compromise or admission after the payment of the balance nine-tenth court fee.

The proviso to S.69 says that" provided that no refund shall be ordered where only one-tenth of the amount of fee on plaint as required by S.4A or one-third of the amount of fee on memorandum of appeal as required by S.52 has been paid by the parties".

If S.69 is intended for all compromises and admissions irrespective of its stage, there is no necessity to incorporate the proviso to the section by way of the amendment Act.

So in my humble view, the decision of the learned Single Judge requires a reconsideration by a larger bench.

Rappai v. Anthappai

(By Varghese T. Abraham, Presiding Officer, Labour Court, Ernakulam)

Giant Anthappai was in the business field

Clients he had all over the world

Collapsed all on a sudden he in trade and business

Empty was his purse and disappeared his friends

                      "Squandered he money like a prodigal son;

                       Didn't he bother about future": commented his dear ones

                       Debts he had to repay and suits to defend

                       Dejected was he and neglected by all.

Rappai-his neighbour, a teacher retired

Sent he his daughters, except one, with suitable grooms

Sons are well placed and lead they a happy life

Deposited he money for the daughter and ornaments in the locker

                        Attended he church early in the dawn

                       Offered he prayers with family in the dusk

                       Referred he gospels and also psalms

                       Loved his neighours and gave poor alms.

To the downtrodden and needy "love" was his verb"

“Good Samariten": said all and sundry in the village

Lamented he always towards the needy and orphans

Helped he a lot the widows and destitutes

                        Shedding tears came Anthappai and said

                        "Wife is of frail health, debts to repay

                        Life is at peril; lend me some money

                        Rappai, my friend, I promise to repay"

"Love Thy neighbour" provoked, simplicity stirred up

Sympathy weighed and Christianity awakened

So, he loaned not a paltry amount of twenty

But Rupees thousand in fifty

                        Blessings he showered and prayers he promised

                        Issued Anthappai a cheque, (Rappai not insisted)

                        Promised to repay with interest at twelve

                        Didn't he break usurious laws, never he was a Shylockian-lender

Flourished Anthappai in trade and business

Exported he frogs, prawns and fish

Encircled him friends and showered laurels on him

Clasped they hands on hearing him at Lions and Rotary

                        Played he ducks and drakes with money

                        Put up he buildings in the town like Babel's tower

                        Purchased he vehicles - heavy and light

                        Plots he bought and boats he owned.

Demanded Rappai his money without interest

To send his daughter with a handsome groom

Hard hearted Anthappai unfolded his hands

Hard pressed Rappai appealed for his money

                        Mediators intervened and business tycoon refused

                        Met Rappai a lawyer and sent him a notice

                        Reply he sent and disowned the cheque

                        Presented the cheque; returned it with "refer to drawyer"

Filed he a complaint under the N.I. Act

Swore he before the Magistrate truth and nothing but truth

Sent summons the Court: all returned "accused not in station"

Never Anthappai appeared; but Rappai was present

A year and more expired, Rappai was tired

To avert a dismissal he must be present

                       "One year expired; service is not completed

                         Your case is closed" said his lawyer

                        "Am I at fault?" a sobbing query to the lawyer

                        "Am I at fault?" Piercing was the retort.

Got back the cheque and thought for a while

Rushed he to the station to square up the problem

Made he a yowl and stood there with tremble

Explained he the grievance with folding hands

                         "Bring him here soon" and the jeep took its start

                          Brought him there and stood he with culprits and cut throats

                         "Give him soon whatever is due", Inspector shouted

                          In bundles he brought currency without demur

Principal and interest Rappai got

Returned he home with confucius' words

"I give credit; you no pay

I get mad

You ask credit; I no pay

You get mad

BETTER YOU GET MAD"!

Uniform Civil Code - A Constitutional Mandate

(T.P. Diaz, Advocate -Trichur)

There has been a multiplicity of complicated personal laws in India; broadly categorised as Hindu system, Muslim system, X 'an, Parsis etc. Some have its origin in the Vedic period, some others in the medieval period; but the origin of these into a legal system in its present form is ascribable to the 19th century, under the British rule. 'Divide and Rule' was the motive behind all these legislations, to cement the bed-rock of the superstructure of their colonial empire. To keep up the tempo of communal discord, they exploited every tiling within their command and legislation was also not spared.

The protagonists of secularism and the founding fathers of our constitution had to wade through a pool of problems to enact and incorporate Art.44, in the constitution, because of the onslaught unleashed by the vested interests and communal forces. They could withstand the mounting pressures and refused to bow. Their successors in office also should be able to uphold the same tradition courageously to solve the problem, the best way, facing it.

Article 44 of the Constitution has been a mandatory provision, reads as follows:—"The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India". Why should a government which claim secularism as its goal, a government which always resort to Constitutional provisions for various purposes, fight shy to give legislative expression to this mandate, enacting a uniform civil code?

Legislative competence and constitutional mandate have been there in abundance, but what is lacking, has been the political will and courage, and the same weakness was manifested by the enactment of "The Muslim Women (Protection of Rights and Divorce) Act, 1986-17/86, which action of the Central Government reminded the proverbial mother-in-law caressing, oiling and stroking the hairlock of the proverbial daughter-in-law to appease her and to pre-empt her jolting and kicking, while the daughter-in-law sits in a relaxed, pleased and victorious mood of taming the mother-in-law, as her maid-servant. The golden principle laid down by the Supreme Court in Shah Bano's case (1985 2.S.C.C.556), was nullified or neutralised by the said enactment, Shah Bano's preference for Criminal Procedure Code, over her personal laws, brought encomium, laurels and bouquets to her; but brickbats to the Government. The defence of her husband (a lawyer by profession), banging on his personal laws and Talaq, was rejected by the court and then the 'mile-stone Judgment'. "S.125, is truly secular in character. It was enacted in order to provide a quick and summary remedy to a class of persons who are unable to maintain themselves. Such provisions which are prophylactic nature, cut across the barriers of religion. They may not supplant the personal law of the parties, but equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussion on the applicability of such laws, unless within (lie frame work of the constitution, their application is restricted to a defined category of religious group or classes. The liability imposed by S.125 to maintain close relatives who are indigent upon the individuals' obligation to the society to prevent vagrancy and destitution. The moral edict of the law and morality cannot be clubbed to religion".

The court further expressed its regret that Art. 44 of our Constitution, has remained a dead letter. By enacting a uniform civil code, the cause of national integration will be accelerated. It will culminate in the narrowing down or bridging the gap of divergence of divorse competing religion-based laws. And the chance to enhance the national outlook and to engender a 'mother-India' feeling and thereby reducing the sectarian, fundamentalistic and divisive attitude of the various communities. The Court held further, "No community is likely to bell the cat by making gratuitous concessions on this  issue. It is the State which charged with the duty of securing a uniform civil code for the citizens of the country and unquestionably it has the legislative competence to do so".

In a democratic country like India, where secularism has been a declared goal, sectional, communal and religion-based laws should be scrapped or replaced by National laws. Any delay or failure to lake follow-up action as mandated by Art.44, will amount to dereliction of duty and miscarriage of justice, which will expose a weak, pusillanimous government. Skyrocketed to the skyline in the advancement of technical, technological know-how almost in all the branches of science and technology, we enjoy today an enviable, exalted position among powerful nations. Our stridency to the top rung or row of great powers, is looked upon by other Nations with dismay and envy. But our personal legal system, that threads the Warp and Weft of the social fabric, remains rotten and stinking, reeling under the Vedic, Paleolithic or Medieval, irrational customs and conventions which leave our homogenous unity truncated.

"Honey on the tongue and sting in the tail"— attitude of the Government has been amply exemplified by the peroration, in the glorification of secularism on one hand, and the contra-legislation, on the other. The same had been the attitude of the Government, when they codified Hindu personal laws, which had been fading or vanishing out. in 1962,1 wrote an Article and published in Kerala Law Times (1962 KLT Journal Page 57), Titled, "Communalism thrives on legal loop-holes". I take liberty to quote a few lines, from that Article of mine, - "But those who are at tire helm of affairs --------- do not care to see that the main source of this foul stream of communalism, is --------- the legal system of the land".------------------" They make distinctions Mid discriminations on the basis of class and community, in the field of legislation. And if the Government itself does not view the people of India as a whole, why should the citizens view?" "So, we find that within the four boundaries of India certain emotional boundaries are visible". "Why can't the Government contemplate upon 'Indian Acts' applicable to all the citizens of India? Why did they codify the conventional laws of Hindus, which were really fading out?" "It is high time for the government to put a stop to these kinds of legislations and orders which seek to discriminate people of a community from the other".

The letter and spirit of the Constitution make it imperative on the part of the Government, only to enact National Laws, uniform codes and not religion-based communal laws, which drive a wedge in the national unity, which make a dent on Indian polity, and it will be a bountiful harvest for communal politics. Though belated, the time is ripe for the Government to indulge in these matters, on a priority basis and to enact a uniform Civil Code, applicable to all citizens, irrespective of their religion or community.

All along hitherto, Muslim community has been the stumbling block, opposing the introduction and enactment of a Uniform Civil Code. Eminent jurists and top-ranking leaders have pointed out that their apprehension, seems to be baseless and irrational, in view of the well-known protective guarantees, couched in Art. 25, regarding freedom of conscience and the right to profess, practise or propagate the religion of one's choice, and Art.29, regarding the right to conserve its language, script or culture. They should join the main stream of national unity, unhesitatingly and wholeheartedly. Conveniently they should not shut their eyes towards the vast and dynamic changes brought out in almost all the Muslim countries of the world, Mr. Justice, Tulzapurkar, in his famous Article on Uniform Civil Code, says, "for instance, polygamy has been completely prohibited in Tunisia (S.18 of Tunisian law of Personal Status) and Turkey (Art. 74 of Turkish Civil Code, 1926) while it has been curbed in Syria, Morocco, Egypt, Jordan, Iran and Pakistan permissible subject to certain conditions such as obtaining of permission from a third agency like the Court or Arbitration Council before taking a second wife. Similarly, the right of a Muslim-husband to give a unilateral Talaq has also been curbed in all these countries".

To combat the fissiparous tendencies, to anchor the pulls to different directions, by casteism, communalism and fundamentalism, Uniform Civil Code has been the only juristic solution; the only known panacea for putting an end to the various, diverse, unfair, inequitable and in certain cases, humiliating personal laws, applicable to various communities; and nauseating practices, eating into the vitals of the National unity.

In conclusion, I quote the following from Mr. Justice Chagla, "That Art. 44 is a mandatory provision binding the Government, and it is incumbent upon it to give effect to this provision. The Constitution was enacted for the whole country and it is binding on the whole country and every section and community must accept its provision and its directives".

A Comment on 1995 (2) KLT 659 - Poulose v. State of Kerala

(Crl. R.P. No. 524 of 1992 Decided on 21st September 1995)

(A.K. Radhakrishnan Librarian, Advocate General's Office,  Ernakulam)

It is seen from the above judgment of the Hon'ble High Court of Kerala that the petitioner in the Crl. R.P. (Accused) was acquitted by the Hon'ble High Court for the offence u/S.279 I.P.C. for the only reason that the prosecution did not examine any doctor to prove the nature of the injuries sustained by the injured in the accident. This is clear from the last sentence in Para.7 of the judgment which reads thus "As the prosecution did not examine any doctor to prove the nature of injuries sustained by the injured the petitioner is entitled for an acquittal u/S.279 I.P.C. also."

It may be recalled that in order to prove an offence u/S.279 I.P.C. the prosecution is not bound to prove the injury sustained by the injured. As a matter of fact the offence u/S.279 IPC is not for causing any injury but for rash or negligent driving on a public way. This is evident from Section 279 I.P.C. which reads thus "Rash driving or riding on a public way:- whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both". On a reading of the section it cannot be stated that hurt or injury is to be caused in order to attract the offence. Nowhere In the section it is stated so. To constitute an offence u/S.279 IPC it must be established that the accused was driving a vehicle on a public way in a rash or negligent manner to endanger human life or to be likely to cause hurt or injury to any other person. So, mere rash or negligent driving or riding likely to cause hurt or injury is sufficient. Bare negligence involving risk of injury need be established. In other words, bare negligence involving risk of injury is punishable criminally u/S.279 IPC eventhough nobody is actually hurt by it. What is made punishable u/S.279 IPC is the manner of riding or driving of any vehicle on public way. In order to attract the offence u/S.279 IPC it is not at all necessary that the rash or negligent act should result in injury to life and property. It is also not even necessary that any person was on the road at the time. The court may take into consideration the probability of person using it being placed in danger. If that so, there cannot be any acquittal for the offence u/S 279 I.P.C merely for the failure of the prosecution to prove the nature of the injuries sustained to the injured. The question of causing hurt or injury does not arise at all. In order to prove an offence the prosecution need only prove that the accused drove the vehicle on a public way in a rash or negligent manner as to endanger human life or to likely to cause hurt to any other person. It may be recalled that the Hon'ble High Court has not stated in the judgment that the prosecution failed to prove that. On the other hand it was only for non examination of the doctor to prove the nature of the injuries sustained by the injured the accused was acquitted.

In this context it is relevant to note that for causing hurt to any person by doing an act so rashly or negligently as to endanger human life one is punishable u/S.337 IPC. There is also provision for punishing the offender for causing grievous hurt in the manner stated above. The same is punishable u/S.338 IPC. In these circumstances it is respectfully submitted that one is not entitled for acquittal for an offence u/S.279 I.P.C. merely for failure of the prosecution to examine any doctor to prove the nature of the injuries sustained by the injured.