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 

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Whether Medical witness who performs post-mortem is witness of fact?

 On perusal of the record, it has further been noticed by us that there was six days' delay in lodging the FIR which remained unexplained throughout the trial and in the appeal before the High Court. One last fact which is imperative and crucial to be mentioned here is that opinion on the cause of injuries was neither mentioned by doctor PW-6 in his deposition, nor in post-mortem report. In criminal cases pertaining to offences against human body, medical evidence has decisive role to play. A medical witness who performs a post-mortem examination is a witness of fact though he also gives an opinion on certain aspects of the case. This proposition of law has been stated by this Court in Smt. Nagindra Bala Mitraand v. Sunil Chandra Roy, 1960 SCR (3) 1, as follows:

“The value of a medical witness is not merely a check upon the testimony of eye witnesses; it is also independent testimony because it may establish certain facts quite apart from the other oral evidence. If a person is shot at a close range, the mark of tattooing found by the medical witness would draw that the range was small, quite apart from any other opinion of his. Similarly, fractures of bones, depth and size of the wounds would show the nature of the weapon used. It is wrong to say that it is only opinion evidence; it is often direct evidence of the facts found upon the victim's person.”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(Before Pinaki Chandra Ghose and Rohinton Fali Nariman, JJ.)

Machindra v.

Sajjan Galpha Rankhamb & Ors

Criminal Appeal No. 1794 of 2013

Decided on April 19, 2017

Citation:2017 SCC ONLINE 443

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Whether accused can be acquitted relying on hypothetical answers of medical witness pointing to alternative possibilities?

IN THE HIGH COURT OF CALCUTTA

C.R.A. 190 of 2006

Decided On: 30.09.2015

Appellants: Bonomali Mondal and Ors.
Vs.
Respondent: The State of West Bengal

Hon'ble Judges/Coram:Nadira Patherya and Asha Arora, JJ.

Criminal - Conviction - Appreciation of evidence - Sections 34 and 304 Part II of Indian Penal Code, 1860 - Appellants were convicted for offence punishable under Section 304 Part II of Code read with Section 34 of Code - Hence, present appeal - Whether conviction of Appellants was valid - Held, eye witnesses accounted were found credible and trustworthy - Hypothetical answers of medical witnesses pointing to alternative possibilities could not be accepted as conclusive - Failure to produce seized weapon of offence did not affect credibility of prosecution - Defect in investigation could not be ground for acquittal of Appellants - Prosecution was successful in proving guilt of Appellants beyond reasonable doubt - Therefore, conviction of Appellants was valid.
Learned Counsel for the appellants argued that there is conflict between the ocular and medical evidence on the point of time of the incident. In this context our attention has been drawn to the cross-examination of P.W 13 Dr. K.K. Mazumder who stated therein that he found undigested food in the stomach so it can be said that the deceased sustained injury within 3 hours of his taking meal. Reference has also been made to the evidence of P.W 15 Dr. Amal Kumar Moitra who first attended the victim. Being quizzed in cross-examination this Medical Officer stated that the age of the injury was within four hours. The contention raised at the Bar that in view of the medical evidence on record the time of incident as stated by P.W 1, P.W 3, P.W 4 and P.W 10 belies the prosecution case is wholly devoid of merit. The reason is not far to seek. It is a well settled proposition of law that the evidence of eye witnesses will prevail in case of inconsistency between medical and ocular evidence. The value of medical evidence is only corroborative. The fact that undigested food was found in the stomach of deceased cannot determine the time of incident. The time taken normally for digesting food would depend upon the quality and quantity of food, atmospheric condition, the digestive capacity of a person and various other factors. Therefore merely on this score the evidence of the ocular witnesses cannot be disbelieved. It is trite law that where the eye witnesses account is found credible and trustworthy, hypothetical answers of medical witnesses or medical opinion pointing to alternative possibilities cannot be accepted as conclusive.

Asha Arora, J.

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