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Loku Basappa Pujari and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appeal No. 1421 of 1958
Judge
Reported in(1959)61BOMLR1271
AppellantLoku Basappa Pujari and anr.
RespondentState
Appellant AdvocateR.A. Jahagirdar, Adv.
Respondent AdvocateV.T. Gambhirwala, Asst.Govt. Pleader
Excerpt:
.....the medical officer is examined before the court to establish the cause of death disclosed by a postmortem examination, he must be called upon to give evidence about the matters which have a bearing on the questions to be decided by the court and he must also be called upon to depose whether the record made by him in the notes of the postmortem examination are true and if the medical officer deposes to the truth of the record made by him, the record itself may be treated as evidence.;roghuni singh v. the empress (1882) i.l.r. 9 cal. 455, queen-empress v. jadub das (1899) i.l.r. 27 cal. 295 and rangappa goundan, in re (1935) i.l.r. 59 mad. 349, referred to. - - if oral evidence given by the medical officer who has examined the dead body and who has noticed its condition is admissible..........observations made by the medical officer may be regarded as inadmissible in evidence. the notes of postmortem examination are but a contemporaneous ecord made by the medical officer who performed the post-mortem examination on a dead body for forming his opinion as to the cause of death. if instead of orally deposing before the court about the individual observations and the notes are then tendered in evidence, no fault can be found with the admission of those notes on the record. we may hasten to observe that the notes of the pos-mortemexamination are of course not intended to be mechanically admitted on the record of the case. in every case when the m edical officer is examined before the court to establish the cause of death disclosed by a post-mortem examination, he must be called.....
Judgment:

Shah, J.

(1) (In an appeal against conviction and sentence in a murder trial after stating facts and discussing evidence and holding that the evidence did not justify conviction His Lordship proceeded.)

Before parting with the case we think it necessary to deal with certain matters of practice which call for observations. we fid that the notes of the post-mortem examination of the dead body of Narayan have not been taken on the record, though the medical officer who performed the post-mortem examination was examination was examined as a witness. We have noticed in appeals coming from orders passed by the Sessions Court for Greater Bombay that in very rare cases the notes of the post-mortem examination on the dead bodies of the victims are tendered and admitted in evidence, whereas in appeals from the Sessions Divisions in the mofussil, the notes of post-mortem examination, whenever a post-mortem has been held on a ded body, are invariably tendered and admitted in evidence. That thesenotes consitute valuable material for checking up the correctness of the medical and other evidence is undisputed. It is somewhat surprising that on an important matter of practice there should be absence of uniformity prevailing in the Courts of Session, subordinate to this Court. The learned Assistant Government Pleader, who appears before us, has fairly conceded that the notes of post-mortem examination constitute a valuable piece of evidence, which assist the Court in understanding the medical and other evidence led before the Court, but he submitted that presambly because some of the Courts in India have expressed the view that the notes of post-mortem examination are inadmissible in evidence, that the practice prevail in the City Sessions Court to exclude them from evidence. We have invitred the learned Advocates to argue the question before us and after carefully considering the rival arguments, we are of the view that notes of post-mortem examination cannot b regarded as inadmissible in evidence.

(2) Examining the question, apart from authority, we are of the view, that the contention that notes of post-mortem examination are inadmissible in evidence cannot be sustained. If the medical officer who has peformed the post-mortem examination on a dead body deposes before the Court orally anout the matters which are observed by him in the course of the post-mortem examination, and entered by him in the notes, there can be no doubt that such evidence will be admissible. It is not contended by the Assistant government Pleader that the medical officer who has made the post-mortem examination is prohibited from givig evidence about the observations made by him of the condition of the dead body, the external and internal njuries and the condition of the various organs as explanatory of the opinion formed by him. If oral evidence given by the medical officer who has examined the dead body and who has noticed its condition is admissible in law, we fail to appreciate how a written record of the observations made by the medical officer may be regarded as inadmissible in evidence. The notes of postmortem examination are but a contemporaneous ecord made by the medical officer who performed the post-mortem examination on a dead body for forming his opinion as to the cause of death. If instead of orally deposing before the Court about the individual observations and the notes are then tendered in evidence, no fault can be found with the admission of those notes on the record. We may hasten to observe that the notes of the pos-mortemexamination are of course not intended to be mechanically admitted on the record of the case. In every case when the m edical officer is examined before the Court to establish the cause of death disclosed by a post-mortem examination, he must be called upon to give evidence about the matters which have a bearing ont he questions to be decided by the Court to establish the cause of death disclosed by a post-mortem examination, he must be called upon to give evidence about the m atters which have a bearing on the questions to be decided by the Court and he must also be called upon to depose whether the record made by him n the notes of the post-mortem examination is true and if the medical officer deposes to the truth of the record made by him, the record itself may be treated as evidence. Admission of the notes in evidence is but a convenient method of maintaining the record of the observation made and the opinion formed by the medical officer, when he orally deposes in a comprehensive form to the correctness of all the statements ecorded therein.

(3) We may now consider the authorities to which our attention was invited by the learned Asistant Government pleader in suppport of the contention that the noes of pos-mortem examination prepared by a medical officer from observations made by him are inadmissible. In Roghuni Singh v. The Empress ILR 9 Cal 455, it was observed that evidence of a mecial man who has seen and has made a post-mortem examination of the corpse of the person touching whose deat the inquiry is, admissible, firstly, to prove the nature of the injuries which he observed and, secondly, as evidence of the opinion of an expert as to the cause of death. That observatyion is not consisent witht he view that the notes of post-mortem examination are inadmissible in evidence. But there are at page461 of the Report the following observations, on which reliance is place:

'The Assistan Surgeon might have used this report to refresh his memory when giving evidence; but the report itself was not admisssible in evidence.'

In that case the assistant Surenon who performd the post-mortem examination was examined before the Committing Magistrate, but not before the Court Session. One Dr. Shaw was examined in the Court of Session at the trial as an expert by the prosecution, and the opinion given by Dr. Shaw was diametrically opposed to the testimony of the Assistant Sugenon. It appears that notes of the post-mortem examination were not tendered in evidence through the Assistant Sugeon, but Dr. Shaw in giving his evidence based his opinion partly upon the facts recorded in the report made by the Assistant Surgeon and upon some other facts different fromt he facts observed by the Assistant Surgeon. Evidently the opinion formed b Dr. Shaw ont he basis of some but not all the observations made by the Assistant Surgeon could not make the report a part of the record. The report had to be proved and not having been proved it could not be indrectly regarded as evidence because Dr. Shaw chose to base his conclusions upon some of the observations made by the Assistant Surgeon could not make the report a part of the record. The report had to be proved, and not having been proved it could not be indirectly regarded as evidence because Dr. Shaw chose to base his conclusions upon some of the observations recorded therein. This case in our judgment, is not an authority for hte proposition that the notes made by a medical officer who has performed the post-mortem examination of a dead body and has made notes int hat behalf are not admissible in evidence, even if the m edical officer orally deposes to the correctness of the individual observations made and recorded by him, or comprehensively thereto. In Queen Empress v. Jadub Das ILR 27 Cal 295, it apears that the medical officer who perfro med the post-mortem examination was not examined by the Court the Session even though the evidence as given in the Committing Magistrate's Court was not explict as regards the actual cause of death. At the trial, a Civil Surgeon was mined on the pints which werwe wdiswcloswewdw in the wewvidwenwcwe wof the wmewdwicwalw officwerw how haws wcownduwcwtewdw the wposwt-mortem examination. The sessions Judge took the statement of th em edical officer on matters entered in the post-mortem report. In that context it was observed:

'Now that report is not admissble as evidence except to contradict the officer who made it. It may, however, be used by that officer when under examination for th epurpose of refreshing his memory.'

That again, in our judgment, is not an authority in support of the proposition that even when oral evidence is given by a medical officer about that truth of the notes made at the post-mortem examination the record of the notes is inadmissible. Our attention was also invited to Rangappa Goundan v. Emperor : AIR1936Mad426 . It was held in that case that the rport of a postmortem examination on a dead body is not evidence, and can only be used by the witness who conducted the post-mortem enquiry as an aid to memory. In that case, howewver, there is no dicusion of the question whether the notes of post-mortmem examination may be proved in the manner stated by us, and may then be admitted in evidence. The judgment contain merely an ipse dixit that a post-mortem report is not evidence, and can only be used by witness who conducted the post-mortem enquiry as an aid to memory and in support of the observation reliance was placed upon Jadub Das's case. ILR 27 Cal 295.

(4) We may obseve that in the Courts of Session functioning in this State outside the Greater Bombay rea, it has been the consistent practive to admit the notes of post-mortem examination where the evidence relating to such post-mortem examination is relevant.

(5) The learned Assistant Government Pleader conceds that this practice conduces to a better appraisal of the medical and other evidence in trials for offences of murder andculpable homicide. We have carefully considered the arguments advanced at the ar and we are not satisified that the observations recorded in the notes of post-mortem examination which are relevant to the subjectmatter of enquiry are inadmissible even thought the same are duly proved by the testimony of the medical officer who has performed the examination and has recorded the same.

[Remaining part of judgment is not being reported.]

(6) Order accordingly.


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