S.294 CrPC | Not Mandatory To Examine Doctor If Genuineness Of Post-Mortem Report Not Disputed By Accused: Orissa High Court

The Orissa High Court has clarified that it is not mandatory to examine the doctor, who conducted the post-mortem examination, if the genuineness of his report is not disputed by the accused. It further held that once the accused admits the report to be genuine, it can be read as substantive evidence.

While elucidating the mandate of the provision under Section 294 of the Code of Criminal Procedure, the Division Bench of Justice Sangam Kumar Sahoo and Justice Chittaranjan Dash held,

“In view of section 58 of the Evidence Act and section 294 of Cr.P.C., once the genuineness of a document filed by the prosecution or the accused is not disputed by the other side, such document may be read as substantive evidence.”

Brief Background

The Court was hearing a jail criminal appeal filed by the accused-appellant challenging his conviction under Section 302 of the IPC for murder of the deceased.

The prosecution had alleged that the appellant saw his wife sitting near the deceased in the latter’s house during late in the evening and being enraged by such conduct, he assaulted his wife and dealt fatal blows to the deceased.

After examining the evidence on record, the trial Court came to the conclusion that the appellant is guilty for commission of murder of the deceased and convicted and sentenced him for the same.

Whether Examination Of Doctor Mandatory?

The Court, at the outset, examined as to whether the death of the deceased was homicidal in nature. It noted that the doctor, who conducted post-mortem examination over the dead-body of the deceased, was not examined in the trial Court as a prosecution witness.

However, from the order-sheets of the trial Court, it came to light that the State Defence Counsel appearing on behalf of the accused-appellant filed a memo admitting the post-mortem report. Therefore, the trial Court had admitted the same as an exhibit and dispensed with the evidence of the doctor.

The High Court was of the considered opinion that Section 294 of the Cr.P.C. enables the accused to waive the proof of documents like post-mortem report by admitting it or raising no dispute as to its genuineness when called upon to do so under sub-section (1) of Section 294 of Cr.P.C.

Thus, the Court held, in such a situation, sub-section (3) of Section 294 of Cr.P.C. enables the Court to read it in evidence without requiring the same to be proved in accordance with the Evidence Act.

“A post mortem report of which genuineness is not disputed by the accused can be read as substantive evidence without formal proof. Sub-section (2) of section 294 of Cr.P.C. covers the post mortem report. Section 294 of Cr.P.C. makes dispensation of formal proof dependent on the accused or the prosecutor not disputing the genuineness of the documents sought to be used against them,” it added.

The Bench was of the further opinion that post-mortem report filed by the prosecution is a ‘document’ under the purview of Section 29 of the IPC and Section 294(1) of the Cr.P.C. and such report may be read as substantive evidence in place of or in substitution of the testimony of the doctor who prepared or issued it, if its genuineness is not disputed by the accused.

Therefore, in the case in hand, since the post-mortem report was marked on admission and the genuineness was not disputed, the Court held that such report can be read in evidence as genuine.

Apart from the post-mortem report, the Court examined other material evidence from which it came to the irresistible conclusion that the death of the deceased was homicidal in nature.

It also considered the testimony of the mother of the deceased, who was the eye-witness to the occurrence and the fact that the weapon of offence was recovered on the basis of the statement of the appellant. On the basis of such evidence, the Court was of the view that the appellant is in fact the author of the crime.

However, the Bench was of the view that the appellant got sudden provocation by seeing his wife in the company of the deceased and the commission of the offence was not pre-meditated. Thus, it was deemed appropriate to alter his conviction to one under Section 304 Part II for culpable homicide not amounting to murder.

The Court, after going through the case records, noted that the appellant has already undergone imprisonment for a period more than five years and therefore, it sentenced him to the period already undergone.

Case Title: Leven Kerketta v. State of Odisha

Case No: JCRLA No. 43 of 2008

Date of Judgment: November 02, 2023

Counsel for the Appellant: Mr. Laxmi Narayan Patel, Advocate

Counsel for the State: Mr. Sonak Mishra, Addl. Standing Counsel

Citation: 2023 LiveLaw (Ori) 111

Click Here To Read/Download Order