Whether the court must record evidence of medical witness in the accused's presence?

  It would be essential to extract paragraph 27 of chapter (iii) of the Criminal Manual which reads thus;

Medical Witnesses

"27 (i) Section 291 of the Code of Criminal

Procedure 1973, requires that the deposition of

a medical witness should be not only taken, but

also attested in the presence of the accused by

the Magistrate, in order to render it admissible

in other proceedings. An attestation in the

following form should, therefore, always be

appended to such depositions, namely;

"Taken before me and signed by me in the

presence of the accused, to whom the

deposition was explained and opportunity

given to cross-examine"

Date: (Signature of Magistrate)

(2) Care should always be taken to record

medical evidence fully and intelligently on all

the salient points so that a second examination

by another Court may not be necessary. The

evidence should be fully interpreted to the

accused, if necessary, and he should be allowed

an opportunity to cross-examine the medical

witness".

75. The learned Additional Sessions Judge committed a grave

error in not fully interpreting evidence to the accused, though it

appears that the Counsel representing the accused had cross examined the witness. Paragraph 27 of Chapter III of the Criminal Manual specifically contemplates that the evidence of the medical witness should be recorded in the presence of the accused to whom the deposition should be explained. The answer to the first question asked to the accused as above would indicate that they were unaware of what P.W.11-Dr. Vijay Dhakare had testified qua survivor-Y as regards her injury. There is even no evidence that Counsel representing the accused had explained the evidence of P.W.11-Dr. Vijay Dhakare, later on.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CONFIRMATION CASE NO.1 OF 2017

The State of Maharashtra  Vs. Rahimuddin Mohfuz Shaikh @ 

John Anthony D'Souza @ Babu @ Baba 

CORAM : SMT. SADHANA S. JADHAV &

PRITHVIRAJ K. CHAVAN, JJ.

PRONOUNCED ON : 25th November, 2021.

JUDGMENT: [Per Prithviraj K. Chavan, J.]

Read full Judgment here: Click here

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