R.A. Jahagirdar, J.
1. After the hearing of this appeal was over on 18th of October, 1979 we dictated an order allowing the appeal and acquitting the accused who had been convicted in Sessions Case No. 19 of 1975 of the offence punishable under section 302 of the Indian Penal Code by the learned Sessions Judge of Satara. We had mentioned that we would given reasons later. Accordingly we are giving the reasons in this judgment.
2. In Sessions Case No. 19 of 1975, tried by the learned Sessions Judge of Satara, the appellant in this appeal, hereinafter referred to as 'the accused', was prosecuted for the offence punishable under section 302 of the Indian Penal Code. It was alleged that the accused had committed the murder of one Gangubai, wife of Dagdu Chougule, by inflicting knife injuries on her person on the night of 25th of October, 1974. The learned Sessions Judge convicted the accused of the offence with which he was charged and sentenced him to imprisonment for the life by his judgment and order dated 29th of September, 1975.
3. The prosecution case in the Court below as that on 25th of October 1974 which was the Dassera day the murder of Gangubai was committed. Before we narrate other facts constituting the prosecution case it would be appropriate to know something about the village in which this offence took place and the local which provided the backdrop to the movements of the various persons involved in this case. Shankar Shivram Bhoj examined as P.W. 1 in the Court below, was at the relevant time working as a Circle Inspector of Karad Division within which the village Vithalwadi is included. He has, on a requisition made by the police, drawn a sketch of the area in Vithal wadi which is called Dhangarwada. The sketch is at Exh. 7 and it shows that there is in the village Vithalwadi a hillock on the northern side of which there are several houses which are inhabited essentially by Dhangar's who are related to each other. On the solution side of the hillock in situated the house of the accused which is 1 1/2 furlong away from Dhangarwada. Dhangarwada which, as we have already mentioned above, is situated on the northern side of the hillock and consists of among others four houses. The scene of offence is in the house of Gangubai Dagdu Chougule which itself consists of three apartments. The innermost apartment is a kitchen, the middle apartment is an oti and the outermost apartment is gotha. On the western side of this house of Gangubai there are two houses one of Nau Ramu Chougule and other of Bhagu Chougule in that order. There is a distance of 50 feet between these three houses. On the eastern side of the house of Gangubai at a distance of 112 feet is the house of Janu Ramu Chougule. If there are other houses in this area they have not been shown in the sketch. The four houses have been specifically shown by the Circle Inspector because the inmates of these four houses which are situated on the northern side of the hillock are not connected with each other by any regular road but are accessible to each other by a trodden path. Though Dhangarwada is situated near the village and probably forms part of the village Vithalwadi, the living conditions of the persons in the four houses are almost primitive because at night even lanterns were not available in three houses. It is needless to say that there is no other source of illumination for the area as such. It has also coma in the evidence of the Circle Inspector that the Koynanagar Police Station is at a distance of 7 miles from Vithalwadi. If one has to reach Koynanagar from Vithalwadi one has to walk a distance of about 3 miles to a village called Snirale from where a bus can be taken to Koynanagar. From other evidence available we notice that Karad, which is a taluka place in Satara District, is 29 miles away from Vithalwadi.
4. Gangubai, the wife of Dagdu Chougule, is a resident of village Vithalwadi and occupies a house in Dhangarwada. Her husband Dagdu normally resides in Bombay where probably he is employed. Dagdu owns some lands in this village which were being looked after by his wife Gangubai with the assistance of Ganpat Raoji who is the accused in this case. A boy, called Mohanya, who is the son of the sister of Gangubai, has been residing with Gangubai for nearly 8 years before the date of the incident. When he came to this house he was about 8 years old and at the time of the incident therefore, he was nearly 16 years old. Mohanya used to look after the cattle belonging to Gangubai. From the fact that Gangubai required the assistance of a labourer and also the assistance of a boy to look after the cattle it can be inferred that among the poorer people inhabiting Dhangarwada she was comparatively prosperous.
5. It is alleged by the prosecution that Gangubai, who had been left alone by her husband who paid only annual visits to the village, came under the spell of the accused and both of them developed illicit relationship between them. This illicit intimacy is said to have continued for nearly 5-6 years before the incident. It is in evidence that the accused was married about one year before the incident and as a motive for the crime, which was ultimately committed by the accused, the prosecution wants to suggest that the accused wanted to do away with Gangubai who must have stood between him and his new domestic happiness. We may straight way say that this motive is not supportable by any legal evidence and further, in our opinion, is hopelessly week. On the evening of 25th October, 1974, which was the Dassera day and which was also a Monday, Gangubai had gone to Patan because it was a bazaar day at Patan. Sometime before the sunset the accused came to the house bringing with him some wild fruits which were cooked and were shared by the accused and Mohanya. Gangubai came to the house after dusk with some bananas. Of the bananas which she had brought she gave two to Mohanya and two to the accused. The accused was not pleased with this gesture of Gangubai and in fact hurled back the bananas at her. After sometime all of them slept in the Oti of the house. According to the prosecution, the accused and Gangubai were sleeping near each other while Mohanya was also sleeping on the oti but at some distance away from them.
6. After midnight Mohanya is said to have woken up on hearing the noise of hitting by a pen-knife on Gangubai who was begging him not to beat her. The accused thereafter left the place by pushing away Mohanya. Mohanya immediately went out of the house and contacted Jaya Ramu Chougule whose house was nearest to the house of Gangubai. Jaya and Manaya both went to the house of one Ravalu which is 50 ft. away from the house of Jaya. In the house of Ravalu they woke up Bhagu, Ravalu's son, and they informed him about the incident. Bhagu lighted a lantern and all three of them returned to the house of Gangubai. In the light of the lantern they found that Gangubai was lying in a pool of blood on the oti. Since it was late at night all the three persons waited near the dead body and only after the sunrise they told Ravalu, the father of Bhagu, about the incident that had taken place. It is at this stage a somewhat strange behaviour is being displayed by the prosecution witnesses. We will make necessary comments when we examine their evidence in the Court. Suffice it for the present to narrate the Ravalu, the father of Bhagu, called one Ninu and told him to go to the Police Station at Koynanagar and inform the Police Station about the incident.
7. We have already mentioned that the three boys, who spent the night near the dead body of Gangubai, had indeed informed Ravalu about the incident immediately after sunrise. This must necessarily mean that Mohanya must have told, if he knew, the name of the assailant of Gangubai. Surprisingly, Ravalu not only did not tell Ninu the name of the Assailant but when asked by Ninu the name of the assailant told the letter that he did not know the same. The result of this was that the first information report which was lodged in the Koynanagar Police Station contains only a statement the Gangubai has been murdered and a further statement that Ravalu, who gave this information to the informant Ninu, when asked did not disclose the name of the assailant. We may also mention at this stage, reserving our severe comments little later, that all the prosecution evidence necessarily indicates that Ninu reached the Koynanagar Police Station at about 9 a.m. on 26th October, 1974. The first information report which was scribed by P.S.I. Mumbai, who was in charge of the Koynanagar Police Station, was scribed at 3.30 p.m. on that day. More than six hours were allowed to lapse by the Police Officer who was in charge of the Police Station and as we show a little later, not a whisper of explanation has been offered by the prosecution for this grave lapse.
8. It is only after reducing the information given by Ninu into writing as the first information report at Exhibit 26 at 3-30 p.m. that P.S.I. Mulani found it necessary to go to Vithalwadi village and to take the necessary steps in the investigation. The first step which he took was the holding of the inquest panchanama the account of which is at Exhibit 13. On that day, that is on 26th of October, 1974, he recorded the statement of only Mohanya and did not contact the other witnesses whose names must have necessarily been disclosed by Mohanya. He also got prepared the panchanama of the scene of offence at 7 p.m. on 27th of October, 1974, that is, more than 24 hours after he reached the village Vithalwadi. That panchanama is at Exhibit 9. The clothes of the deceased were attached and when sent to the Chemical Analyzer they were found to be stained with blood of 'A' group. On 27th of October, 1974 the P.S.I. recorded the statement of six more persons and on the same day at 8 p.m. the accused was arrested. From this it is clear that more than 24 hours after he recorded the statement of Mohanya, P.S.I. Mulani found it necessary to arrest the accused. Anticipating the evidence we may mention here that the accused was moving about it the village all this time and his movements bore the stamp of an innocent person.
9. On 28th of October, 1974 the search of the house of the accused was taken and the two articles were attached. Article 6, which was the shirt allegedly belonging to the accused, did not have any blood stains. Article 5, which the prosecution alleges belonged to the accused, is a banian which had one small stain of blood on it. When analysed by the Chemical Analyzer, it was found that the blood belonged to 'A' group which is the same group to which the blood of the deceased Gangubai belonged. Considerable use was sought to be made by the prosecution of this finding and the learned Sessions Judge has also thought it fit to attach too much importance to the same. On the next day, that is on 29th of October, 1974, pursuant to a statement allegedly made under section 27 of the Indian Evidence Act by the accused a pen-knife, being article 7, is said to have been discovered. This pen-knife was discovered from the during-hill belonging to one Ramu Hari. Panchanamas of the statement under section 27 and of the discovery are at Exhibits 15 and 16. The Chemical Analyzers report shows that there was no human blood on article 7.
10. The body of Gangubai was sent to the Karad Cottage Hospital where Dr. M. H. Kulkarni conducted the post-mortem examination. The memorandum of his finding are contained in Exhibit 23. In the trial itself Dr. M.H. Kulkarni was not examined on behalf of the prosecution; instead one Dr. Tathe, who was said to be acquainted with the handwriting and the signature of Dr. Kulkarni, was examined as P.W. 7.
11. The accused was, after the completion of the investigation, put up for trial, as mentioned above, before the learned Sessions Judge of Satara. In the trial Court Mohanya Gangaram Zore was examined as P.W. 5. The entire prosecution case would stand or fall by the evidence of this witness, Examined as, P.W. 6 and P.W. 9, are Jaya Rama Chougule and Bhagu Ravalu Chougule to whom, according to the prosecution, Mohanya had made the earliest disclosure about the incident and the name of the assailant. Ninu Rama Chougule, who filed the first information report at Exhibit 26, was examined as P.W. 8, though the prosecution has for reason best known to it kept behind Ravalu who gave the information to Ninu for filing the first information report. The panchas who proved the various panchanamas were also examined. As already mentioned above, Dr. Tathe was examined as P.W. 7 in the absence of Dr. Kulkarni who had conducted the post-mortem examination on the body of Gangubai. This extra-ordinary procedure followed by the prosecution of examining a doctor who was totally unconnected with the post-mortem examination was proceeded by the filing of a purshis at Exhibit 22 wherein the learned Public Prosecutor informed the Court that Dr. Kulkarni was on leave and the summons could not be served upon him. By the same purshis the Public Prosecutor called upon the defence Counsel to admit or deny the post mortem notes prepared by Dr. Kulkarni. This purshis or the application was purported to have been made under section 294 of the Code of Criminal Procedure. Unfortunately the learned Advocate appearing for the accused made an endorsement on the said application that he had no objection to admitting the post-mortem notes on record and exhibiting the same. The learned Sessions Judge thereafter passed on order granting the application which had the result of taking the document of the post-mortem examination notes as an exhibit without being proved by the person who had prepared the said notes. P.S.I. Mulani was examined as P.W. 11.
12. The learned Sessions Judge accepted the evidence of Mohanya as according to him, he was corroborated by the evidence of Jaya and Bhagu. The learned Sessions Judge also found further corroboration to the involvement of the accused in the crime in the find of the 'A'-group blood on the banian of the accused and the discovery of the knife though it had no blood stains. The learned Sessions Judge accepted the interpretation put by Dr. Tathe on the post-mortem notes at Exhibit 23 and held that the injuries found on the body of Gangubai were the cause of her death. Accordingly, by his judgment and order dated 29th of September, 1975 the learned Sessions Judge convicted the accused of the offence punishable under section 302 of the Indian Penal Code and sentenced him to imprisonment for life. It is this order of conviction and sentence that is the subject-matter of challenge in this appeal.
13. After hearing Mr. R.S. Mohite, the learned Advocate appearing for the accused and Mr. J.A. Barday, the learned Public Prosecutor appearing for the State, we are satisfied that the order of conviction and sentence passed by the learned Sessions Judge is wholly illegal and totally unsupportable by any legal evidence on record. Every reason given by the learned Sessions Judge is untenable and, in our opinion, the judgment discloses poor appreciation of the evidence, a line of least resistance to the prosecution case resulting in the unquestioning acceptance of the assertions made by the prosecution witnesses, legal and procedural infirmities and an imperfect understanding of the scope of section 27 of the Evidence Act and of the effect of a discovery made under that section. We are constrained to use a somewhat strong language in respect of this judgment because having gone through the entire evidence and other material on record we are satisfied that this case has not been conducted with all solemnity and strict regard for the procedural safeguards which are necessary in a sessions case. The sluggish manner of investigation is another factor on which some comments will have to be made.
14. The star witness for the prosecution is naturally Mohanya who was a 16-year-old boy at the time when he gave evidence in the Court. He was about a year younger when the incident took place. From the way he has given replies to the questions which were asked to him, one gains an impression that he is a person of limited understanding and we noticed that even in the examination-in-chief some leading questions have been asked to him in order to enable him to give the necessary answers. However, we will straightway proceed to examine whether what he says in the Court can be accepted as true. After mentioning that the husband of Gangubai was in Bombay, Mohanya mentions that the accused was known to him because he was often coming to the house of Gangubai and was residing overnight in the house. Thereafter, he was mentioned the incident that took place on 25th of October 1974 which was a Monday and also the Day of Dassera. On that day, according to Mohanya, the accused had come to the oti of the house when he was standing in the corner. He had brought some wild fruits with him and both of them boiled the same and ate them. He then proceeds to mention that Gangubai returned at night after the lights were lighted. A kerosene lamp was kept burning on the grinding stone on the oti. Then he proceeds to mention the incident in which the two bananas which Gangubai had given to the accused were hurled back at her by the accused. Thereafter all went to sleep. Thereafter he has mentioned that the accused and Gangubai were sleeping near each other while he was sleeping at some distance away from them. Thereafter the following questions and answers are to be found on the record:
'Q :---What did you hear?
A :---I heard a pen-knife.
Q :---Did any body shout?
Q :---Who was stabbing who?
A :---The accused Ganpati was stabbing my material aunt.
Q :---Was Gangubai saying anything?
A :---Yes, she was saying 'paradise, do not beat me.
Q :---Did you see the accused stabbing the woman?
15. He says that after he saw the accused stabbing Gangubai he wanted to shout but the accused gave him a push and ran away. Proceeding further he narrates that he went to house of Nau Jaya's brother and woke him up. From there he went to the house of Ravalu from where they returned with a lantern to the house of Gangubai. To some leading questions asked he answered that he went to the house of Jaya also and in fact he had gone to the house of Jaya and told him that Ganpya (the accused) had stabbed his Mavashi and that they should all go and see. From the house of Jaya itself he went to the house of Ravalu where he met the son of Ravalu and then all of them returned to the house of Gangubai. When they so returned they saw in the light of the lantern that Gangubai had expired and blood was lying on the ground. They also noticed that the body of Gangubai was totally naked and after sometime one Chimabai who arrived on the scene put a sari on that body. He thereafter mentioned that he stayed near the dead body till the police arrived. According to him, the police arrived at 12 noon on 26th of October, 1974.
16. Form what has been stated by him so far in the examination-in-chief one thing is crystal clear, namely, that it was sometime after midnight that the assault on Gangubai took place, that there was no light in the house and that it became necessary for Mohanya to go to the neighbour's house, to bring a lantern in order to see what the State of Gangubai was in the house. Mohanya has not mentioned as to how he was able to identify in that darkness who the assailant of Gangubai was. When a prosecution witness asserts that he was able to identify an assailant in darkness, it is necessary for him to explain as to how he was able to so identify. Mohanya's evidence discloses that but for the lantern which had to be brought from some other's house the condition of Gangubai could not have been seen and that admittedly there was no light in the house of Gangubai when the assault took place. His assertion that he was able to identify the assailant cannot be accepted unless he gave reason as to how he was able to identify. The learned Sessions Judge, however, adopted a wrong approach while appreciating the evidence of Mohanya. He says in paragraph 16 of his judgment that Mohanya was not asked as to how he could see the blows given to Gangubai and proceeds to say that if that question was put to Mohanya he could have given explanation on that point. The following sentence also occurs in paragraph 16 of the judgment of the learned Sessions Judge :
'When he states that he had seen the accused giving blows, that evidence will have to be accepted unless he was unable to explain as to how he could see the blows being given.'
In our opinion this is wholly a wrong approach while appreciating the evidence in a criminal trial. If the prosecution sets out to prove a particular thing it must prove it. If a witness says that he was able to identify the assailant in conditions which admittedly would not have enabled him to identify, it is for him to explain as to how he was able to establish the identify of the assailant. It is not necessary for the defence to ask him as to how he was able to identify if the prosecution evidence itself discloses that the conditions were unfavourable for the identification of the assailant.
17. The learned Sessions Judge sought some assistance from the fact that in Exh. 9, which is the panchanama of the scene of offence drawn on 27th of October, 1974-nearly 36 hours after the assault had taken place, it had been mentioned that some pieces of wood were kept burning near the oti where the dead body was lying and the ash of the said pieces of wood was found lying. This clearly showed, according to the learned Sessions Judge, that some pieces of wood were also kept burning on the oti where Gangubai and the accused and Mohanya were sleeping and it was, therefore, possible that even after the lamp was extinguished the witness Mohanya could see things , namely, giving of blows by the accused in the light of the burning pieces of wood. To say the least, this is a complete conjecture on the part of the learned Sessions Judge. If in the panchanama, drawn 36 hours after the incident, mention is made of some pieces of wood which had been reduced to ashes it is impossible to infer that those pieces of wood were burning on the night and at the time when the assault took place. Why is it not possible that those pieces of wood had been burnt for some purpose even during the day or on some other night? If such pieces of wood were burning at the time when the assault took place it was not impossible for Mohanya during the questions asked by the Public Prosecutor to say so. We are unable to accept from a stray statement made in a panchanama that conditions of light enabling Mohanya to identify the assailant existed. That there was darkness in the house of Gangubai and that it was necessary for Mohanya and others to come to the house with a lantern from elsewhere have been clearly established by the prosecution evidence. Mohanya himself says, as already mentioned above, that he went to the house of Ravalu and came with a lantern to the house of Gangubai. In the evidence of Jaya Rama, P.W. 6, there is mention that he told Bhagu to light a lantern and that they should go to the hose of Gangubai. There is also a mention in the evidence of Bhagu Ravalu, P.W. 9 that he lighted a lantern and thereafter they all went to the house of Gangubai. We are thus satisfied that the conditions of visibility were not such as to enable Mohanya to identify the assailant of Gangubai though it was possible for him to surmise that the assailant was the accused because he had seen the accused sleeping with Gangubai in the earlier part of the night.
18. The next question is whether the prosecution has convincingly proved that Mohanya had told the name of the assailant to the others at the earliest opportunity. While narrating the prosecution case earlier in the judgment, we have mentioned that it was Ninu who went and filled the first information report on information which had been given to him by Ravalu, the father of Bhagu. Mohanya himself in his deposition has mentioned that he told everything to Ravalu and Bhagu; he told that his Mavashi was attacked by Ganpya but in the cross-examination he has answered that Ninu inquired with Jaya, Bhagu and Ravalu as to how Gangubai had received injuries. This indicates that Mohanya himself was present when Ninu, Jaya, Bhagu and Ravalu were discussing who could be the assailant of Gangubai. Mohanya's further answer that Ninu went to Koynanagar to inform the police shows that he was in the company of these persons in the morning of 26th of October, 1974. Pointed questions were then asked to him as follows:
'Q :---It is correct to say that you did not tell Ninu before he went to inform the police that the accused had stabbed Gangubai?
A :---Yes, I had not stated him like that,
Q :---Is it correct to say that you had not stated before the police that you had told Bhagu and Ravalu that the accused had stabbed Gangubai?
A :---It is correct.'
It does not require much reasoning to infer that he had not told Bhagu and Ravalu the name of the assailant till Ninu had gone to Koynanagar Police Station to file the first information report. If Mohanya had known the name of the assailant it is inconceivable that Ninu who went to the Police Station from a conference where both Mohanya and Ravalu were present would have failed to mention the name of the assailants in the first information report. Even in the police statement Mohanya had not mentioned that he had told Bhagu and Ravalu that the accused had stabbed Gangubai. This is, in our opinion, the greatest infirmity in the evidence of Mohanya though circumstantially he was probably present in the house when the assault took place. It is not possible for us to accept his assertions in the examination-in-chief that he was also to identify the assailant of Gangubai because those assertions have been blown to pieces by the questions which were asked to him in the cross-examination.
19. This infirm testimony of the so-called eye-witness cannot be said to have been strengthened by the testimonies of the two other witnesses to when Mohanya is said to have informed at the earliest the name of the assailant of Gangubai. They are : Jaya Rama Chougule, (P.W. 6) and Bhagu Ravalu Chougule, (P.W. 9). Jaya Rama is the nephew of Ravalu while Bhagu is the son of Ravalu. Since we have rejected the claim of Mohanya that he had told Jaya and Bhagu the name of the assailant, it is not necessary for us to discuss the testimonies of those two witnesses in any detail. However, we may briefly refer to the deposition of Bhagu (P.W. 9), and when we do so we will see that the prosecution case that Mohanya had identified the assailant of Gangubai is without any foundation.
20. Bhagu, a boy of 25 years, examined as P.W. 9, has mentioned that on the night of 25th October, 1974, Jaya and Mohanya came to his house at night and woke him up. According to him, both of them told him that Gangubai was murdered by Ganpya (the accused). Thereafter he lighted the lantern and all the three went to the house of Gangubai and stayed there throughout the night.
21. In the cross-examination he has mentioned that he had gone for tending the cattle at 9 a.m. Thereafter he has admitted that before he did so Jaya, Mohanya, Ravalu and Janu had assembled in the house of Gangubai. He is specific that his father came there when he was in the house of Gangubai at the time of the sunrise. Then the following questions and answers are to be found :
'Q :---Did your father ask you how the woman had died?
Q :---Did you tell Ravalu that you did not know who had murdered Gangubai?
In other words, he insists that he told his father who had murdered Gangubai. This pretension of his that he informed his father about the assailant of Gangubai must be held to be false in view of the finding which we have given earlier relating to Mohanya's evidence and further in view of the reasons which we now proceed to give.
22. If as the different witnesses insist that Mohanya had disclosed the name of the assailant immediately after the assault took place, and at any rate immediately in the early hours of the morning of 26th of October 1974, to the persons concerned including Ravalu, who is now found to be the eldest among them, the name of the assailant would have been communicated to the police at the time when the first information was lodged. We have already mentioned earlier that the first information report was lodged by one Ninu Rama, (P.W. 8). The source of the first information report lodged by Ninu however was the information given by Ravalu. Ravalu, it is being repeated by the prosecution witnesses, knew the name of the assailant because he had been informed by Mohanya and others. If Ravalu therefore, knew the name of the assailant, he would necessarily tell Ninu about the same because Ninu had been specifically charged with the duty of lodging the first information report in the Koynanagar Police Station. Bare perusal of the evidence of Ninu, which we now proceed to make, will show that Ravalu was totally ignorant of the name of the assailant when he sent Ninu on his mission to the Police Station.
23. Ninu Rama, examined as P.W. 8, has mentioned that he learnt about the murder of Gangubai on the morning of 26th of October, 1974 when he was called by Ravalu. Along with Ravalu he went into the house of Gangubai where he found the dead body and he was frightened. Thereafter the narrates that Ravalu told him to go to the Police Station and to inform the police. He reached Koynanagar Police Station at about 9 a.m. and gave the information which was reduced into writing. This first information is at Exhibit 26 on which he put his thumb mark. In the examination-in-chief itself he was asked by the Public Prosecutor as to what Ravalu had told him. The answer of this witness was that Ravalu had told him to inform the police and nothing more. At that time there were other persons sitting in the house of Gangubai. His answers to several other questions in the cross-examination clearly indicate that Ravalu did not utter a single syllable of the name of the assailant of Gangubai. The following questions and answers summarise the challenge successfully made by the defence Counsel :
'Q :---Is it correct to say that Ravalu did not tell you the name of the person who had inflicted the injuries?
Q :---Is it correct to say that Ravalu told you that he does not know about it?
From this it is crystal clear that the persons who had assembled in the house of Gangubai in the early house of 26th of October 1974, which assembly included Ravalu, did not know the name of the assailant. If they had known, they would not have failed to tell the name of the assailant to Ninu who was going to the Police Station with the important task of setting the investigation into motion. It is inconceivable that if Mohanya informed the name of the assailant the others would not have known it; it is equally inconceivable that if others, who included Ravalu, had known it they would not have given the name of the assailant to Ninu who was to go to the Police Station to lodge the first information report.
24. On this aspect of the evidence the learned Sessions Judge has again adopted the line of least resistance. He points out in paragraph 11 of his judgment that the first information report is not a substantive piece of evidence and it can only be used to contradict or to corroborate evidence of the person who had given in first information report. He has also mentioned that the first information report is not an encyclopedia. But at the same time one must not forget that the first information report is a report which is the earliest in point of time before the investigation is started by the police and is indicative of the evidence and the nature of the prosecution case that is likely to emerge later. If in the first information report the name of the assailant has not been mentioned, when in all probability it should have been mentioned, it can safely be assumed that at the time when the first information report was lodged the name of the assailant was not known. It is true that the first information report is not substantive evidence and can only be used for corroborating or contradicting a person who has given the first information report. Yet, in a given case, as the present one, where the prosecution wants to allege that before the first information was lodged all the persons knew the name of the assailant and one of such persons was the source of the first information, then if there is absence of the name of the assailant in the F.I.R. the irresistible conclusion is that the person who was the source of the first information did not know the name of the assailant. One of the purpose of the first information report is to show that the implication of the accused is not an afterthought or that the information is a piece of evidence resgastae See Damodar Prasad v. State of Maharashtra : 1972CriLJ451 . Apart from the importance of the first information report as indicated by the above mentioned Supreme Court judgment and several other judgments, in the instant case even if we treat Exhibit 26 as the previous statement the implications of the absence of the name of the assailant in it has not been appreciated by the learned Sessions Judge. The studied refusal of the prosecution to examine Ravalu, who was the source of the information contained in Exhibit 26, is another factor which ought to have been borne by the learned Sessions Judge while appreciating the significance of the omission of the assailant's name in Exh. 26.
25. Considering all the facts and the circumstances surrounding Exhibit 26 it is clear to our mind that when Exhibit 26 was lodged the name of the assailant was unknown to any of the prosecution witnesses. The other evidence indicates that it did not become known even thereafter. In Ram Kukar Pandey v. The State of Madhya Pradesh : 1975CriLJ870 the first information report had been lodged by the father of the murdered boy to whom, as the Supreme Court pointed out, all the important facts of the occurrence were bound to have been communicated by his daughters who, according to the prosecution, had seen the appellant inflicting the bow on the victim. If this were so, said the Supreme Court, the father would certainly have mentioned it in the first information report pointing out that the first information report is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. The Supreme Court proceeded to observe as follows :
'We think that omissions of such important facts, affecting the probabilities of the case, are relevant under section 11 of the Evidence Act in judging the veracity of the prosecution case.'
On the facts of our case we notice that Bhagu claims to have been informed of the name of the assailant by Mohanya in the night immediately after the assault had taken place. Bhagu insists in his sworn testimony that he told his father Ravalu about the name of the assailant. If this were so, Ravalu would have definitely told Ninu about the same. Since there is unimpeachable evidence to show that Ravalu had not informed. Ninu about the name of the assailant the entire chain of the information beginning with Mohanya to Ravalu must be rejected as a chain of sand.
26. Before we proceed to the next piece of evidence in this case we cannot help commenting upon a serious lapse committed by the prosecution and in all probability by the P.S.I. who investigated into this offence. All the prosecution witnesses have mentioned that early in the morning several people assembled in the house of Gangubai. Among those from the assembly was Ravalu the father of Bhagu, P.W. 9. Bhagu has in unmistakable terms mentioned that before he left the house of Gangubai to tend the cattle at 9 a.m., Jaya, Mohanya, Ravalu and Janu were already in the house of Gangubai. He has specifically mentioned that his father came there at the time of sunrise and he had informed his father about the person who murdered Gangubai. Ninu, P.W. 8, has also in unmistakable terms mentioned that at the time of sunrise Ravalu called him to the house of Gangubai and immediately thereafter Ravalu asked him to the Police Station to inform about the crime. He left the village Vithalwadi and reached Koynanagar Police Station at 9 a.m. There is evidence to the effect that Koynanagar Police Station is 7 miles away from Vithalwadi. This has been mentioned by the Circle Inspector Bhoj, P.W. 1. It therefore, stands to reason that Ninu must have taken 1 1/2 to 2 hours to reach Koynanagar Police Station. Where he gave the information regarding the murder of Gangubai. Since all the evidence so far produced by the prosecution clearly indicated that the first information report was lodged at the Koynanagar Police Station at 9 a.m., one would normally expect that the Police would arrive at Vithalwadi by 12 noon. Yet, shockingly enough, Exh. 26, which is the first information report reduced into writing, bears the endorsement that it was recorded at 3-30 p.m. This endorsement has been made by the P.S.I Mulani who was at that time in charge of the Koynanagar Police Station. We are constrained to say that this endorsement is highly suspicious. Even in his evidence P.S.I. Mulani, P.W. 11, has made himself bold to say that the first information report was given to him at 3 p.m. on 26th of October 1974. We have great reservations about the statement made by the P.S.I. Mulani in this regard. From all the facts and circumstances which have come on record we refused to accept that the first information which was carried by P.W. 8 Ninu Rama from Vithalwadi to Koynanagar, which is at a distance of 7 miles, reached the Police Station at 3 p.m. On the other hand, there is convincing evidence to show that the first information report was lodged at Koynanagar Police Station at 9 a.m. The prosecution has not thought it fit to explain why the first information lodged at 9 a.m. was not reduced to writing till 3-30 p.m. by P.S.I. Mulani. It thus appears to us that Ninu who went all the way to Koynanagar Police Station reaching that place at 9 a.m. must have been kept waiting for nearly 6 hours because the information did not disclose the name of the assailant or that the information which was logged by P.W. 8 Ninu Rama was reduced into writing at 9 a.m. itself and a false endorsement was made that it was recorded at 3-30 p.m. Either of these two possibilities suggest a state of inactivity on the part of P.S.I. Mulani which was not justified when a serious offence like that of murder was to be investigated.
27. A circumstance on which heavy reliance has been placed by the prosecution and which was unfortunately accepted by the learned Sessions Judge is that a banian which was alleged to be that of the accused was found to contain blood of 'A' group which was the blood group of the deceased Gangubai. In the search of the house of the accused two articles, namely, one shirt (Article 6) and one banian (Article 5) were seized. Article 6 did not contain any blood. The banian (Article 5), as the report of the Chemical Analyser shows, had stain of about 2 cm. in diameter. On analysis it was found that the blood one blood was of 'A' group which was the group of the blood of the deceased Gangubai. There are several reasons why this find of 'A' group blood on the banian attached from the house of the accused cannot be accepted as a circumstance implicating the accused in the murder of Gangubai. The post-mortem report shows that there were as many as 4 incised injuries on the body of Gangubai. Two were on the neck while one was on the chest and the fourth one was on the abdomen. Who never inflicted these injuries obviously did so at a close range. It is impossible that the clothes of the assailant would not have been sprayed with blood on a somewhat larger scale. A single drop of blood on the front side of the banian is totally inconsistent with the nature of the attack which is disclosed by the injuries mentioned in the post-mortem report. Merely because blood on the banian (Article 5) was of the same group as that of Gangubai does not necessarily connect the owner of that banian to the crime because the blood group of the owner of the banian has not been shown to be of non 'A' group. An agriculturist like the accused who, as the other prosecution evidence shows, goes about in the village with an axe on his shoulder, is bound to suffer some cuts and bruises and in that process his clothes must receive some stains of blood. In the instant case a single blood stain of 2 cm. diameter is discovered. We may also note that the accused has vehemently denied that the banian (Article 5) belongs to him. The prosecution alleges that the banian has been recovered from the house of the accused. Yet, it has not been shown whether the house from where it was recovered belongs to the accused or to his brother, Jagannath by name, as contended by the accused. The panch examined for providing the attachment of Article 5 and 6 in the search of the house of the accused was not able to say whether Jagannath and the accused were joint. Surprisingly, the learned Sessions Judge drew a totally unwarranted inference from this admission of the panch witness Motiram. The following is to be found in paragraph 16 of the judgment:
'In his cross-examination, the witness Motiram has admitted that the accused has got a brother by name Jagannath, but has stated that he does not know whether Jagannath and the accused Ganpat are joint. Thus, the evidence of witness Motiram leaves no do doubt that Jagannath was not residing in the house at that time and therefore, the say of the accused that the banian was of Jagannath cannot be believed.'
We fail to see how from the clear cut admission given by witness Motiram that he does not know whether Jagannath and Ganpat were joint, an inference can be drawn that Jagannath was not residing in the house. At the most it can be said that no inference can be drawn as to whether Jagannath was residing in that house. Admittedly, banian (Article 5) was not attached when it was worn by the accused. If the prosecution has failed to prove that the banian belongs to the accused either by establishing that it was being worn by the accused sometime or by establishing conclusively that the house from which it was seized was inhabited by the accused alone and not be Jagannath or others, we do not see how it can be said that the find of a drop of blood on this banian can be a circumstance implicating the accused in the crime.
28. We now proceed to examine the judgment of the learned Sessions Judge Wherein, in paragraph 17, he has used the discovery of the knife (Article 7), as a circumstance against the accused. We regret that we have to examine this part of the judgment of the learned Sessions Judge in some what great detail despite the fact that the leading judgment on this subject has been given by the Privy Council more than 30 years age in Pulukuri Kottaya v. King Emperor, 49 BomLR 508. We are in fact not impressed by the so called statement made by the accused under section 27 of the Evidence Act and the consequent discovery of the knife. Nevertheless, we will proceed on the basis that all the procedural safeguards necessary for the discovery pursuant to the statement under section 27 of the Evidence Act had been taken in this case. What is ultimately found? The knife which is Article 7 before the Court. What is found on Article 7? Let the learned Sessions Judge speak:
'It is, no doubt, true that the report of the Chemical Analyser does not show that the blade of the pen-knife was stained with human blood of 'A' group or even with human blood.' (Emphasis provided).
We do not see how the discovery of an article which was not stained with human blood, let alone the blood of the group to which the blood of the deceased Gangubai belonged, can assist the prosecution in any manner whatsoever. The reasoning of the learned Sessions Judge, in our opinion, is devoid of logic. It will be a travesty of the provisions contained in section 27 of the Evidence Act if it is held that whatever is discovered pursuant to the statement made under that section can be used against the accused irrespective of this fact that the thing discovered does not disclose any connection with the offence. It is true that the learned Sessions Judge has proceeded to mention that Dr. Tathe has stated that the injuries which were found on the dead body could have been inflicted by means of pen-knife (Article 7). The question is not whether the injuries were capable of being inflicted by Article 7. The question is whether these injuries were inflicted by Article. The latter question must be answered in strong negative in view of the prosecution evidence itself. It is most unfortunate that a circumstance which is in fact in favour of the accused was pressed by the learned Sessions Judge as a circumstance against the accused. We may also mention at this stage that we have seen Article 7 and closely examined it. It is not a pen-knife as is being repeatedly mentioned by the learned Sessions Judge in his judgment. It is a clutch knife with an arrangement for reopening by pressing with the thumb. It is too big a knife to be called a pen-knife. In fact, we doubt whether such a knife is to be normally found in a village like Vithalwadi or whether persons like the accused before us are likely to be in possession of such a knife. The discovery of a weapon like knife is absolutely of no help to the prosecution unless it is shown by the prosecution that the said knife had been used in the commission of the crime under investigation. This is too elementary a proposition to need any further elucidation. There is not even faintest evidence to suggest that this knife could have caused the injuries found on the body of Gangubai.
29. Before we proceed to consider the evidence of Dr. Tathe and the unusual procedure adopted by the learned Public Prosecutor by resorting to the provisions under section 294, we may briefly mention the conclusions which we have so far arrived at. We are not satisfied that Mohanya, P.W.5, was able to identify the assailant of Gangubai because, in our opinion, he has not explained as to how he could identify the assailant in total darkness. We are also satisfied that Mohanya could not have told the name of the assailant to either Jaya Rama or Bhagu Ravalu because if he had told the name of the assailant to these two persons or other persons, Ninu Rama, who filed the first information report at Exhibit 26, would not have failed to mention the name of the assailant. The absence of the name of the assailant in the first information report at Exhibit 26 is a serious infirmity in the prosecution evidence which casts a great doubt about the veracity of the so-called eyewitness and other prosecution witnesses. The find of a small drop of blood on the banian seized from the house of the accused is of no assistance to the prosecution because it has not been shown by the prosecution that in the first place the blood group of the accused was not 'A' and secondly that the banian itself belonged to the accused. Article 7, the knife, which is alleged to have been discovered pursuant to the statement made by the accused under section 27 of the Evidence Act, is not shown to have been concerned with the crime because not even human blood was found on the same. The evidence of Dr. Tathe is hopelessly irrelevant, as we will show shortly, in identifying the knife as the one which was responsible for the injuries on the body of Gangubai. There is, in the evidence of (P.W. 6), Jaya Rama, an admission that on the morning after the murder had taken place he had seen the accused going in the direction of Dhangarwada. At that time the accused had a farshi (axe) with him. Bhagu Ravalu, (P.W. 9), also mentions that on the assailant. The absence of the name of the assailant in the first information report at Exhibit 26 a serious infirmity in the prosecution evidence which casts a great doubt about the veracity of the so-called eye-witness and other prosecution witnesses. The find of a small drop of blood on the banian seized from the house of the accused is of no assistance to the prosecuting because it has not been shown by the prosecution that in the first place the blood group of the accused was not 'A' and secondly that the banian itself belonged to the accused. Article 7, the knife, which is alleged to have been discovered pursuant to the statement made by the accused under section 27 of the Evidence Act, is not shown to have been concerned with the crime because not even human blood was found on the same. The evidence of Dr. Tathe is hopelessly irrelevant, as we will show shortly, in identifying the knife as the one which was responsible for the injuries on the body of Gangubai. There is, in the evidence of (P.W. 6), Jaya Rama, an admission that on the morning after the murder had taken place he had seen the accused going in the direction of Dhangarwada. At that time the accused had a farshi (axe) with him. Bhagu Ravalu, (P.W. 9), also mentions that on the day after the murder had taken place he met the accused when the latter was going from Vithalwadi to Dhangarwada with an axe in his hand. These two statements to be found in the testimonies of the prosecution witnesses indicate that on the morning after the incident had taken place the accused was moving about in the village in the usual way and there was no suspicion about his movements. If he was involved in the murder few hours earlier. He would not have gone from Vithalwadi to Dhangarwada where he was bound to be apprehended. If Mohanya had seen the accused at the time of the commission of the offence the accused would have, if anything, run miles away from Dhangarwada. If Mohanya is to be believed that the accused spent the night with Gangubai, then the accused himself would have come to know about the murder that had taken place. The conduct of the accused, as deposed to by these two prosecution witnesses, show that the accused was in fact unaware that the murder of Gangubai had taken place. From this it appears to us that the accused in fact did not spend the night with Gangubai as deposed to by Mohanya. P.S.I. Mulani took more than 24 hours to decided to arrest the accused. All these facts and circumstances, in our opinion, are indicative of the innocence of the accused rather than of his crime.
30. The next question is whether the prosecution has proved how Gangubai has died. In order to prove the cause of the death of Gangubai the prosecution as examined Dr. Tathe as (P.W. 7). Dr. Tathe had not even performed the post-mortem examination of the body of Gangubai. In fact, it is not even shown that he had seen the body of Gangubai. He was at the relevant time Chief Medical Officer of the Cottage Hospital at Karad and two doctors were working under him in the year 1974. Of them one was Dr. M.H. Kulkarni. It was this Dr. Kulkarni who had performed the post-mortem examination on the dead body of Gangubai. Naturally Dr. Kulkarni alone was competent to come and to dispose to the injuries which were found on the body of Gangubai and to give opinion as to whether those injuries were the cause of the death of Gangubai. Unfortunately, on 18th of September, 1975 when Dr. Kulkarni was to be examined, Dr. Tathe appeared in the Sessions Court. The Public Prosecutor filed an application purporting to be one under section 294 of the Code of Criminal Procedure in which it was mentioned that Dr. M.H. Kulkarni of the Cottage Hospital of Karad was on leave and he could not be traced though the Court summons for his attendance was sent. The application then proceeded to mention that the prosecution, under the circumstances, begs to produce the post-mortem notes drawn by the doctor as evidence. It was also stated that the defence may be called upon to admit or deny the document of post-mortem examinations notes. We will show presently that this application, though purporting to be one under section 294 of the Code of Criminal Procedure, cannot be one under that section. Even the recitals in the application which are briefly mentioned above cannot bring that application under the provisions of section 294 of the Code. Before we examine this application we must regretfully mention that the learned Advocate appearing for the accused made an endorsement that he had no objection for admitting the memorandum of post-mortem notes on record and for exhibiting the same. After this the learned Sessions Judge made an endorsement : 'Granted' With this order having been passed at Exhibit 22, Dr. Tathe stepped into the witness-box and gave his opinion on the basis of the entries made in the memorandum of the post-mortem examination.
31. Section 294 of the Code of Criminal Procedure is in the following terms :
'294 (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such documents shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for prosecution or the accused, ass if any, shall be called upon to admit or deny the genuiness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed :
Provided that the Court may, in its discretion require such signature to be proved.'
This section cannot be abused by a Prosecutor or any other person when he is unable to secure the attendance of a witness as mentioned in the instant case in Exhibit 22. In the first place, it was the duty of the Public Prosecutor to secure the attendance of Dr. Kulkarni on some day. The reason given for not securing his attendance in the Court on 18th of September, 1975 is, in our opinion, wholly untenable. Dr. Kulkarni might have been on leave from his duty at the hospital; but he could not be on leave as far as his attendance in the Court is concerned. Even if the police were not able to serve the summons upon him, a fresh attempt was necessary to be made. It was the duty of the prosecution to secure the attendance of the doctor who had to dispose to the injuries found upon the dead body of Gangubai and then to dispose to the cause of the death. Almost in all cases these doctors are Government Servants working in one or the other of the Government or semi-Government hospital. Some are with hospitals run by local authorities. It is difficult for us to accept that doctors cannot be traced for securing their attendance in the Court. On the basis of this reason namely, that the doctor could not be traced though the Court summons for his attendance was sent, the learned Public Prosecutor proceeded to apply under section 294 of the Code for dispensing with the formal proof of the post-mortem notes. In our opinion, section 294 is not meant to meet such a situation which, at any rate in the instant case, has been created by the prosecution itself. It will be an abuse of the provisions contained in section 294 if the said section is used for bringing on record the documents which are to be proved by examining witnesses whose presence the prosecution has without proper effort failed to secure.
32. We must now proceed to examine as to whether the memorandum of the post-mortem examination conducted by the doctor can be brought on record by resorting to the provisions contained in section 294 of the Code. It is well-settled that the memorandum of the post-mortem examination is not substantive evidence by itself. It is a document containing the notes made by a doctor contemporaneously while he is conducting the post-mortem examination. That memorandum can be used by the doctor for refreshing his memory while he is giving evidence in Court. It may be used by the defence, if necessary, for contradicting the doctor's evidence in the Court. The memorandum itself can never be substantive evidence though it can be exhibited in the Court when the doctor is examined as a witness and has deposed to the contents of that document. See Loku Basappa Pujari v. The State, 61 BomLR 1271. By tendering the memorandum of the post-mortem examination alone in evidence the prosecution cannot pretend to prove the injuries found on the body of the person examined by the doctor, or the cause of death of a person as it has happened in this case. The doctor has mentioned in the post-mortem examination report that particular injuries are the cause of death. That is an opinion which has to be expressed by the doctor from the witness-box and which has to be tested by the cross-examiner. The injuries found by the doctor as mentioned in the post-mortem memorandum may be facts which are found by the doctor. The opinion regarding the sufficiency or otherwise of the injuries to cause death has to be given by the doctor and has to be tested on the anvil of the cross-examination. Apart from this, in criminal cases several facts and circumstances attendant upon a death of a person are to be investigated. Are the particular injuries sufficient in the ordinary course of nature to cause death? Were the blows given in a sudden fight? Have the injuries been inflicted by the accused while the victim was in a sitting or standing position? Is it possible that the injuries might have been caused by a fall of the victim on a Weapon. These are some of the several questions which are to be answered before deciding the question of culpability of the accused. There may emerge various subtleties and nuances in the evidence which may be given by the doctor on the basis of the injuries which he found on the body of the deceased or of an injured person. The answers which the doctor may give will help the Court in arriving at the conclusion relating to the gravity of the offence committed by the accused. The murder apparent on the basis of injuries found in the memorandum of the post-mortem examination may turn out to be only a culpable homicide or even a grievous or a simple hurt when the doctor is examined. Almost in every case the weapon alleged to be involved in the crime has got to be shown to the doctor before he gives his opinion as to whether that weapon was responsible for the injuries which he found. No Court can come to a proper conclusion relating to the culpability of an accused person only on the basis of the recital of the injuries in a memorandum of the post-mortem examination. Thus, apart from the fact that the post-mortem memorandum is not a substantive piece of evidence the doctor has got to be examined in every prosecution not only to prove the injuries mentioned in the post-mortem examination but also to give his opinion relating to these injuries.
33. In Re Rangappa Goundan and another, ILR Madr 349, the Division Bench of the Madras High Court pointed out that in a murder case, no consent or admission by the accused's Advocate to dispense with the medical witness would relieve the prosecution of proving by evidence the nature of the injuries received by the deceased and that the injuries were the cause of death. It has been pointed out that the post-mortem report was not evidence and could only be used by the witness who conducted the post-mortem enquiry as an aid to memory. The facts of that case disclose that the Public Prosecutor asked the defence Advocate if he wished to examine the medical witness, who had in fact been resent in the Court. The defence Advocate answered in the negative. The result was that no evidence was given at the trial with regard to the injuries received by the deceased or to the cause of his death or whether the injuries received by him were responsible for death. In view of this state of prosecution evidence, it was pointed out that the consequence was that an essential element of proof of the crime alleged against the two accused was wanting and the conviction which had taken place in the absence of that evidence could not stand. The learned Sessions Judge's reliance upon the post-mortem report as establishing beyond doubt that the man was murdered was disapproved in the following terms:
'But a post-mortem report proves nothing. It is not even evidence, and can only be used by the witness who conducted the post-mortem inquiry as an aid to memory. These propositions have already been stated in Queen Empress v. Jadub Das (l).'
34. If this is the correct, as we think it is the correct legal position relating to the evidentiary value of the post mortem report, it will not be difficult to see that such a report cannot be tendered in evidence by resorting to the provisions of section 294 of the Code.
35. Apart from section 294, there is another section, 293 which permits reports of certain Governments scientific experts to be namely, received in evidence. Section 293 provides that any document purporting to be a report under the hand of a Government scientific expert to whom that section applies may be used in evidence in any inquiry, trial or other proceeding under this Code. The Court, however, is given discretion to summon and examine any such expert as to the subject matter of his report. Section 293 by its sub-section (4) is made applicable to only six categories of experts. Among them the doctor conducting the post-mortem examination is not one. Section 293 of the Code of 1974 corresponds to section 510 of the old Code and is not new. Section 294, however, is totally a new section inserted for the first time in the Code of 1974. A proper reading of the said section persuades us to hold that it is meant to cover those documents which require only formal proof. It has been introduced for the purpose of accelerating the pace of the criminal trial by dispensing with the formal proof of certain documents. Where the contents of a document are to be proved by examining the author of that document, the provisions of section 294 of the Code cannot come into play. Where the relevance of a document depends entirely on its genuineness, the procedure prescribed under section 294 of the Code can be followed and once the genuineness is admitted then that document itself may be read in evidence. The provisions of section 294 are not meant for circumventing the provision of the Evidence Act and in particular the provisions relating to the proof of certain facts which can only be done by examining witnesses though those facts might have been mentioned in a document. Conceivably, section 294 of the Code may cover letters written; photographs taken and it may also cover specimen hand writing and finger prints. It is not necessary for our purpose to enumerate the documents which are conceivably covered by section 294. It is enough to mention that the memorandum of the post-mortem examination is not a document the proof of which can be dispensed with by resorting to the provisions of section 294 of the Code. Indeed, the memorandum of the post-mortem examination does not prove by itself. As we have already mentioned earlier, a document which is not substantive evidence by itself and the contents of which have to be deposed to by a witness, can never be tendered in evidence by following the procedure mentioned in section 294 of the Code. It is especially so in the case of memorandum of post-mortem examination. Interpretation of the various findings mentioned in the memorandum is to be made by the medical witness and is to be tested by the cross-examination.
36. We notice that fortunately a similar view has been taken by the Division Bench of the Gujarat High Court in Kalu Raghav v. The State of Gujarat, (1976) XVII GujLR 988 wherein it has been pointed out that the Legislature while enacting section 294 in the Code must not have thought that this salutary provision would be abused in actual practice and the person in charge of the prosecution or defence would make it the handle of their inaction or indifference. It has been further pointed out that the underlying idea of section 294 seems to be that the formality of proving of some documents may not unnecessarily hamper the smooth flow of the trial. Proceeding further the Division Bench pointed out as follows :
'But it could not have been envisaged that important witnesses like a Doctor who has examined patients would also be dispensed with by resort to this provision of section 294. We, therefore, emphasis the importance of medical evidence in such cases involving injuries, and particularly fatal injuries, and we insist that in all such cases, the persons in-charge of prosecution or the defence would not thinker with the problem and leave the Court to decide the important questions by resorting to only surmises or conjectures as a technical subject like medical science. The Judges trying such cases have an important duty to perform and if they allow such short-cuts to be resorted to, they would obviously be remiss in their judicial duties.'
Earlier in the judgment it has been mentioned that it was indeed astonishing on shocking that important medical evidence also is taken in a light manner in sessions cases where the Court is required to decide the nature of the injuries and the cause of death. It is needless to say that we have also found it highly astonishing that resort to section 294 of the Code was made to dispense with the examination of the doctor who conducted the post-mortem examination.
37. Similar view has also been taken by the Division Bench of the Allahabad High Court in Jagdeo Singh v. State, where it has been mentioned as follows:
'A bare reading of the aforesaid section would reveal that it contemplates reading in evidence, upon admission about genuineness by the opposite party, only such documents which, when formally proved, speak for themselves. It does not refer to a document which, even if exhibited, cannot be read in evidence as a substantive piece.'
Proceeding further the learned Judges pointed out how the notes of post-mortem examination are nothing but contemporaneous record prepared by the medical officer while performing the post mortem examination on a dead body. The post-mortem report itself proves nothing, as they said, as it is not a substantive piece of evidence. We respectfully agree with the views expressed in two above the judgments. We have mentioned above additional reasons as to why it is necessary for a doctor to be examined even if the post-mortem notes are taken as an exhibit in evidence.
38. In view of this legal position which to us is clear, the examination of Dr. Tathe as a substitute for Dr. Kulkarni was of no use to the prosecution. By his evidence Dr. Tathe could not depose to the injuries which were found by doctor Kulkarni on the body of Gangubai; he could not depose to the cause of death as found by Dr. Kulkarni; he could not establish whether the injuries caused by the assailant, whoever it was, were sufficient in the ordinary course of nature to cause death. Since, however, he had been examined by the prosecution, he went on referring to the notes and repeating whatever was contained in the notes. One question which was asked to him was in the following terms:
'Q :---Could the external and internal injuries described in the post-mortem notes be caused by knife Art. No. 7 now shown to you?'
He answered in the affirmative. In our opinion, that is bravado on the part of Dr. Tathe. We do not see how he could have made himself bold to say that the internal injuries which he had never seen could be caused by a particular knife viz., Article 7. It is not merely the description or measurements of the injuries mentioned in the post-mortem notes that will give an indication as to whether they were cause by a particular knife; It is an ocular examination of the injuries that will enable a doctor to give an opinion which is of any value to the Court. In our view, the entire evidence of Dr. Tathe has to be kept out of consideration. If this is done in the instant case, the prosecution has failed to prove the injuries which were caused to the body of Gangubai and the cause of death of Gangubai. If this is done, naturally, the accused is entitled to acquittal also on this ground.
39. Before parting with this appeal, we must once again emphasis that Public Prosecutors should not resort to the provisions of section 294 of the Code of Criminal Procedure on the ground that because summons has not been served upon a witness the witness is not available. A proper understanding of the scope of section 294 will, we hope, prevail. In the present case the doctor was said to be unavailable because he was on leave. This also, in our opinion, is a very flimsy ground given by the Public Prosecutor which ought not to have been accepted by the learned Sessions Judge. The Public Prosecutors as well as the presiding officers of the Court would also do well to note that the Government of Maharashtra has by a Notification dated 23rd of October, 1975 framed a rule in exercise of the powers conferred upon it by sub-section (2) to section 294. The said rule has been published in the Maharashtra Government Gazette on 6th of November, 1975. The said rule requires that the list of documents referred to in sub-section (1) of section 294 shall be filed before the Court in the form mentioned therein. In our case, we notice that not only no form was used but suddenly the Court was informed by an application that Dr. Kulkarni was not available and by the same application the defence was called upon to admit or deny the document of post-mortem examination notes. In fact the Public Prosecutor's application at Exh. 22 even does not call upon the defence to admit or deny the genuineness of the document. There is an element of haste imprinted upon Exhibit 22 which to say the least is not commendable in a criminal trial.
40. In our opinion, therefore, the prosecution has totally failed to prove the charge against the accused. The order of conviction and sentence passed by the learned Sessions Judge of Satara in Sessions Case No. 19 of 1975 is not sustainable and is, therefore, set aside. The accused is acquitted of the offence with which he was charged. We have already directed that he be set at liberty forthwith.