Bombay HC: Under which circumstances the court can rely on post-mortem report even though prosecution has not proved it by examining doctor?

We accordingly hold that sub-section (3) of Section 294 of the Code covers post-mortem notes and every other document of which genuineness is not disputed. Thus such documents can be read in evidence as genuine without the formal proof. In our view, Ganpat Raoji's case MANU/MH/0292/1979 is not correctly decided. {Para 18}

IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 970 of 1979

Decided On: 09.02.1981

Farid Hussinsab Vs. The State of Maharashtra

Hon'ble Judges/Coram:

Venkat Shrinivas Deshpande, C.J., D.M. Rege and M.N. Chandurkar, JJ.

Author: Venkat Shrinivas Deshpande, C.J.

Citation:  MANU/MH/0030/1981

Print Page

Telangana HC: What is the appropriate method of proving medical certificate or post mortem report in Session trial if doctor who has issued that certificate or report is not available?

 The core contention of the learned counsel for the appellant/accused is that the doctor who examined the victim and allegedly issued Ex. P8-Medical report of the victim was not examined before the Court below to prove the contents of the same. Without formally proving Ex. P8-Medical report of the victim, which is tendered in evidence by PW. 11-investigation officer, the Court below erroneously took the same into consideration to come to a conclusion that PW. 2-victim was sexually assaulted by the appellant/accused. {Para 3}

4. We find force in the submission of the learned counsel for the appellant/accused. It is evident from the record that Ex. P8-Medical report of the victim was tendered in evidence by PW. 11-Investigation Officer in this case. It is settled law that mere marking of a document in evidence does not amount to its proof. Nor, mere marking of exhibit does not dispense with its proof, which is otherwise required to be done, in accordance with law. In medical jurisprudence, proof of writings and reports by any other person, than the real author of a document, should be by a 'competent person'. Such document should not be brought in evidence mechanically, only for the sake of empty formality, but, if taken in evidence, it should be meaningful and purposeful. In case of Injury Certificate/Wound Certificate/PME Certificate etc., the execution of such a document has to be proved by evidence of those technical/expert persons who can certify the contents of such document. It should be proved firstly by examining the doctor himself who issued the same; and if the said doctor is not found, the course available to the prosecution is to examine some other doctor from the same hospital, who knew the handwritings and signature of the doctor who issued the certificate in question. When the other doctor is examined who knew the handwritings and signature of the doctor who issued Ex. P8-medical report of the victim, he would have spoken about the contents of the medical report and the conclusions reached therein. In such an event, there would have been an opportunity to the appellant/accused to cross-examine the said doctor to answer the questions raised in relation to the commission of rape etc., and it would have been helpful to the Court to arrive at a just conclusion. Non-examination of the doctor who issued Ex. P.8-Medical report of the victim or any doctor working in the same hospital capable of identifying the handwritings and signature of the author of Ex. P8-medical report of the victim certainly causes prejudice to the appellant/accused. In the absence of such evidence, it is unsafe to act on Ex. P8-medical report of the victim.

5. Similar question came up for determination before the Hon'ble Jharkhand High Court in Sowam Kisku and others Vs. The State of Bihar MANU/JH/0542/2006 : 2006 Crl.L.J. 2526 wherein, the post mortem report of the deceased therein was sought to be proved by a Compounder attached to the hospital. Declining such practice, the Hon'ble Jharkhand High Court observed as follows:-

"8. We are unable to understand as to why the prosecution did not choose to examine the doctor. It is no doubt true that in spite of the steps taken, the prosecution could not procure the attendance of the doctor who conducted autopsy over the dead body, but that could not have precluded the prosecution from examining some other doctor from the same hospital who knew the handwriting and signature of the doctor who conducted autopsy. If any other doctor had been examined who knew the signature of the doctor who conducted the autopsy and if he had given evidence as to the nature of post mortem done and the injuries found by the doctor on the dead body, then the appellants could have had an opportunity of cross-examining the said doctor to say that the injuries suffered by the deceased are not fatal in nature and even if the deceased died on account of such injuries, the accused - appellants could have taken a defence to say that the said injuries are not sufficient in the ordinary course of nature to cause the death of the deceased or that the said injuries are only likely to cause the death. The prosecution by not examining the doctor denied the opportunity to the accused-appellants as they were prevented from cross-examining the doctor. Therefore, in absence of any evidence that Dugu Ram Kisku died due to homicidal violence, we cannot find the appellants guilty of murder."

IN THE HIGH COURT OF STATE OF TELANGANA

Criminal Appeal No. 244 of 2022 and IA No. 2 of 2022

Decided On: 22.08.2022

Manoj Kumar Mahanand Vs. State of Telangana

Hon'ble Judges/Coram:

Dr. Shameem Akther and E.V. Venugopal, JJ.

Author: Dr. Shameem Akther, J.

Citation: MANU/TL/2666/2022.

Print Page

Supreme Court: Under which circumstances Motor accident claim tribunal should reject claim for compensation?

Significantly, no post-mortem was conducted. The High Court also noticed the fact that though the accident took place on 12 January 1995, a complaint was lodged only on 15 February 1995. As regards the evidence of the driver, the High Court noted that while at one stage he had stated that the deceased was brought dead, at another place he stated that he was referred to the government hospital for further treatment. The circumstance that no postmortem was conducted is an extremely significant aspect of the case which in our view has justifiably weighed with the High Court. Moreover, the High Court found that if there were three passengers in the tractor, all of whom had known that driver Dharampal had by his negligent act run over Ram Kanwar, the most natural conduct would have been to lodge a complaint. The person who died was the brother of the owner of the tractor. Hence, the fact that a complaint was not lodged for nearly one month is a significant omission in the case. The High Court has also noticed that there were no hospital records to indicate, from the nature of the injuries, that death had occurred due to an accident of the nature alleged. The deceased was conducting a transport business with his brother and was an income tax Assessee. The fact that proper medical records were not available has, in this background, weighed with the High Court. Besides the above aspects, the High Court has found that the assessment of compensation by the Tribunal is perverse.

4. On a careful analysis of the judgment of the High Court and the material on the record, we find no reason to take a view at variance with that of the High Court. The reasoning contained in the award of the Tribunal was perfunctory. The Tribunal failed to notice crucial aspects of the case which have a bearing on the question as to whether the death of Ram Kanwar was caused as a result of the accident caused by the tractor. Each of the circumstances relied upon by the High Court is germane to the ultimate conclusion that a false case was set up to support a claim for compensation. The Appellants have not been able to displace the careful analysis of the evidence by the High Court and the findings which have been arrived at.

False case was set up  supporting compensation claim - No F.I.R. - No postmortem deceased brother of owner - F.I.R. delayed by 30 days (Section 173 of Motor Vehicles Act, 1988) 

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 3291-3292 of 2011

Decided On: 19.01.2018

Anil and Ors. Vs. New India Assurance Co. Ltd. and Ors.

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation:  MANU/SC/0022/2018,AIR 2018 SC 612.

Print Page

Whether the court can discharge accused based on cause of death mentioned in Post mortem report of deceased victim?

 What did the trial court do in the case on hand? We have no doubt in our mind that the trial court could be said to have conducted a mini trial while marshalling the evidence on record. The trial court thought fit to discharge the Accused persons from the offence of murder and proceeded to frame charge for the offence of culpable homicide Under Section 304 of the Indian Penal Code by only taking into consideration the medical evidence on record. The trial court as well as the High Court got persuaded by the fact that the cause of death of the deceased as assigned in the post mortem report being the "cardio respiratory failure", the same cannot be said to be having any nexus with the alleged assault that was laid on the deceased. Such approach of the trial court is not correct and cannot be countenanced in law. The post mortem report, by itself, does not constitute substantive evidence. Whether the "cardio respiratory failure" had any nexus with the incident in question would have to be determined on the basis of the oral evidence of the eye witnesses as well as the medical officer concerned i.e. the expert witness who may be examined by the Prosecution as one of its witnesses. To put it in other words, whether the cause of death has any nexus with the alleged assault on the deceased by the Accused persons could have been determined only after the recoding of oral evidence of the eye witnesses and the expert witness along with the other substantive evidence on record. The post mortem report of the doctor is his previous statement based on his examination of the dead body. It is not substantive evidence. The doctor's statement in court is alone the substantive evidence. The post mortem report can be used only to corroborate his statement Under Section 157, or to refresh his memory Under Section 159, or to contradict his statement in the witness-box Under Section 145 of the Evidence Act, 1872. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court. {Para 29}

30. The prosecution should have been given opportunity to prove all the relevant facts including the post mortem report through the medical officer concerned by leading oral evidence and thereby seek the opinion of the expert. It was too early on the part of the trial court as well as the High Court to arrive at the conclusion that since no serious injuries were noted in the post mortem report, the death of the deceased on account of "cardio respiratory failure" cannot be said to be having any nexus with the incident in question.

31. Whether the case falls Under Section 302 or 304 Part II, Indian Penal Code could have been decided by the trial court only after the evaluation of the entire oral evidence that may be led by the prosecution as well as by the defence, if any, comes on record. Ultimately, upon appreciation of the entire evidence on record at the end of the trial, the trial court may take one view or the other i.e. whether it is a case of murder or case of culpable homicide. But at the stage of framing of the charge, the trial court could not have reached to such a conclusion merely relying upon the post mortem report on record. The High Court also overlooked such fundamental infirmity in the order passed by the trial court and proceeded to affirm the same.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1041 of 2022

Decided On: 26.07.2022

Ghulam Hassan Beigh Vs. Mohammad Maqbool Magrey and Ors.

Hon'ble Judges/Coram:

A.M. Khanwilkar, Abhay Shreeniwas Oka and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Citation: MANU/SC/0920/2022

Print Page

Can the court acquit the accused if there is a discrepancy between the inquest report and the post mortem report?

  Now turning to the next plea on which a lot of emphasis was placed by learned counsel for the appellant, it was urged that there was a major discrepancy between the inquest report (Ex.3) and the post-mortem report (Ex.1). This aspect was actually sought to be linked to the plea of the FIR being ante timed. There are stated to be differences in the version which would indicate that the fardbeyan was lodged only after the post-mortem report. The factual basis for the same is stated to be that in the inquest report six injuries are mentioned with no mention of gunshot injury while the post-mortem report shows that there are 26 injuries including the gunshot injury. The pistol was not recovered from him nor any cartridge found and A.S.I. Rajnikant Jha who recorded both the fardbeyan as well as the inquest report was not examined by the prosecution. On this aspect learned counsel relied upon the observations in Maula Bux & Ors. v. State of Rajasthan, ((1983) 1 SCC 379). 

{Para 29}

30. On the other hand learned counsel for the State sought to submit that inquest report cannot be treated as substantive evidence but may be utilised for contradicting the witness of inquest (Suresh Roy v. State of Bihar, ((2000) 4 SCC 84)). He submitted that the inquest report is not really an evidence by itself and cannot be pitted against the evidence of the medical witness in court (Surjan & Ors. v. State of Rajasthan, (AIR 1956 SC 425)). Learned counsel drew our attention to the observations in Pedda Narayana & Ors v. State of Andhra Pradesh, ((1975) 4 SCC 153) opining that the object of proceedings under Section 174 Cr.P.C. is merely to ascertain that whether the person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of death. The details, however, as to how the deceased was assaulted or who assaulted him would be foreign to the scope of proceedings under Section 174 of the Cr.P.C., nor are such details required to be mentioned in the inquest report (Yogesh Singh v. Mahabeer Singh & Ors., ((2017) 11 SCC 195)).

31. Learned counsel next turned to the more recent judgment of this Court in Tehseen Poonawalla v. Union of India, ((2018) 6 SCC 72) opining that the purpose of holding an inquest is limited and the inquest report does not constitute substantive evidence. As compared to an inquest report, the doctor who conducts the post-mortem examination, examines the body from a medico-legal perspective. It is, thus, the post-mortem report that is expected to contain the details of injuries through a scientific examination. In that context he submitted that Maula Bux & Ors., ((supra)) case did not help the appellant as a police officer who prepared the inquest panchnama is not an expert in medical jurisprudence.

32. On examination of the aforesaid pleas, insofar as the factual context is concerned, there is little doubt that there is not a minor but a major difference in recording the number of injuries suffered by the deceased in the inquest report and the post-mortem report. However, this will not be fatal in our view. We say so keeping in mind the purpose of an inquest report, which is not a substantive evidence. The objective is to find out whether a person who has died under suspicious circumstances, what may be the apparent cause of his death. In the present case the death was unnatural. 

Supreme Court

JUSTICE Sanjay Kishan Kaul JUSTICE M.M. Sundresh

PAPPU TIWARY Vs. STATE OF JHARKHAND

CRIMINAL APPEAL NO.1492 OF 2021

31st January 2022

Author: SANJAY KISHAN KAUL, J.

Citation: 2022 ALL SCR (ONLINE) 105

Print Page

Supreme Court: Post mortem report will prevail over inquest report in case of inconsistency

 As far as the injuries in the Inquest report not being noticed in the post-mortem report is concerned, there can no doubt that the medical doctor knows exactly what medical injuries are and ordinarily in case of inconsistency, the medical report of the doctor should prevail. Having regard to the post mortem and the evidence of P.W. 1, the nature of injuries noticed as explained by the deposition of P.W. 1 unerringly point to the death being caused by throttling as opined by the doctor. Much may not turn on the injuries which are alleged to have been noted in the Inquest not being noted in the post mortem note.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1181 of 2011

Decided On: 06.11.2019

 Javed Abdul Rajjaq Shaikh  Vs.  State of Maharashtra

Print Page

When postmortem report can be treated as substantive evidence without examining doctor?

Learned counsel for the appellants at the first instance

submitted that the doctor, who conducted the postmortem

examination of the deceased Smt. Ram Devi, was not

examined in the court, though the same has been marked as

exhibit by the court. Such a procedure adopted by the trial court

could not be approved, as the contents of the postmortem

report could not be admitted under Section 294 of the Code of

Criminal Procedure, unless, the same was duly proved by the

doctor, who had prepared the same.

11. The submission of the learned counsel for the appellants

is legally not sustainable, in view of the settled position of law

that if the genuineness of any document filed by a party is not

disputed by the opposite party, it can be treated as substantive

evidence under sub-section (3) of Section 294 Cr.P.C. The

Hon'ble Supreme Court in case of Akhtar Vs State of

Uttaranchal (2009) 13 SCC 722, has observed that if the

defence has admitted the genuineness of the postmortem

report before the trial court, the genuineness and veracity of the

document stands proved and shall be treated as valid evidence

under Section 294 Cr.P.C. The relevant portion is quoted

below:-

“21. It has been argued that non-examination of the

concerned medical officers is fatal for the prosecution.

However, there is no denial of the fact that the defence

admitted the genuineness of the injury reports and the post

mortem examination reports before the trial court. So the

genuineness and authenticity of the documents stands

proved and shall be treated as valid evidence under

Section 294 of the CrPC. It is settled position of law that if

the genuineness of any document filed by a party is not

disputed by the opposite party it can be read as

substantive evidence under sub-Section (3) of Section 294

CrPC. Accordingly, the post-mortem report, if its

genuineness is not disputed by the opposite party, the said

post-mortem report can be read as substantive evidence to

prove the correctness of its contents without the doctor

concerned being examined.”

ALLAHABAD HIGH COURT

Case :- CRIMINAL APPEAL No. - 3079 of 1985

Bijendra Singh  Vs State of U.P.

Hon'ble Govind Mathur,Chief Justice

Hon'ble Vivek Varma,J.

(Per.:-Hon. Vivek Varma, J)

Print Page

Whether prosecution for murder can be quashed if suicide note is in handwriting of deceased?

 No doubt, it is recorded
in the post-mortem report that the cause of death in this case was
asphyxia due to ante-mortem hanging and the suicide note is in the
handwriting of deceased, but this by itself cannot rule out the possibility
of murder being committed by petitioners. It is so said because the
suicide note is undated and the aspect of ante-mortem hanging cannot be
considered in abstract by this Court in the light of medical literature,
sought to be relied upon by respondents. Whether death of deceased was

homicidal or suicidal is an aspect which cannot be pre-judged at this initial stage. In any case, presence of lividity over the back and other areas prima facie justifies framing of charge under Section 302/34 IPC, as at this initial stage, only a prima facie opinion is to be formed. 

 IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: March 12, 2019
 CRL.REV.P. 645/2017 & Crl.M.A. 14133/2017

SUKHBIR KATARIA Vs  STATE GOVT OF NCT OF DELHI 

CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR

Citation: 2019 SCC ONLINE Del 7603

Print Page

How to appreciate evidence if there is discrepancy in injury certificate and post mortem report?

The third point raised before us is that in the wound
certificate (Ext. P-4) there are only two injuries, i.e. bone
fracture of right leg and puncture wound below left angle of
mandible covered with blood are mentioned, while in the post
mortem report there are nine ante mortem injuries. As such
there is apparent discrepancy between the two documents.
On deeper scrutiny, we find that there is no material
contradiction for the reason that PW-3 Dr. Nanda Koti has
proved Ext. P-4(b) wherein it has been mentioned that the
patient needed immediate treatment, as such, only gross
injuries were entered in the register (not the minor injuries)
and the patient was shifted to emergency ward. In the
cross-examination he has clearly stated that Basavaraj
(deceased) was unconscious. In the circumstances, addition of
stitched wounds in post mortem report (Ext. P-2) does not
create doubt regarding the incident in question.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 435 OF 2006
M. G. Eshwarappa and others 
V
State of Karnataka.
Citation:AIR 2017 SC1197

Print Page

Supreme Court: Any discrepancy between inquest report or post-mortem report cannot be termed as fatal or suspicious circumstance which would warrant benefit of doubt to the accused.

 It has been canvassed on behalf of the appellants that the provisions of Sections 174 and 176(3) Cr.P.C. had not been complied with and the body had been exhumed by the IO without the permission of the Executive Magistrate and therefore, the investigation had not been conducted in accordance with law. Sub-section (1) of Section 174 Cr.P.C. only puts an obligation on the part of the IO to intimate the Executive Magistrate empowered to hold inquest but there is nothing in law which provides that investigation cannot be carried out without his permission in writing or in his absence. Even otherwise, the provision stands qualified “unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Sub-divisional Magistrate.” The object of the inquest proceeding is merely to ascertain whether a person has died under unnatural circumstances or an unnatural death and if so, what is the cause of death. More so, the inquest report is not a piece of substantive evidence and can be utilised only for contradicting the witnesses to the inquest examined during the trial. Neither the inquest report nor the post-mortem report can be termed as basic or substantive evidence and thus, any discrepancy occurring therein cannot be termed as fatal or suspicious circumstance which would warrant benefit of doubt to the accused.

Supreme Court of India

Madhu @ Madhuranatha & Anr. vs State Of Karnataka on 28 November, 2013

Citation; 2013 (4) Crimes 571 SC

Print Page