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2002 Supreme(Kar) 802
Karnataka High Court
Boraiah alias Shekar - Appellant
Versus
State - Respondent
Decided On : 12-20-02
ORDER ON REFERENCE IN CRI.A. : 338 of 1999
B.C.Muddappa, Somashekar Angadi
Headnote:Interpretation of the section -reference to larger bench
CRIMINAL PROCEDURE CODE, 1973 - Section 294 -Reference to larger Bench -question, post-mortem report filed by the prosecution under sub-section (1) whether can be a substantive evidence under sub-section (3) if genuineness is not disputed? Yes. -appeal sent back to a division bench for disposal accordingly.
[B. Padmaraj, M. P. Chinnappa & Manjula Chellur, JJ.] - The proviso to Section 294 of Cr. P.C specifically gives a discretion to the Court to require such signature to be proved notwithstanding the fact that the genuineness of such document is not disputed by the prosecution or the accused. It is thus clear that the Court at no stage can act blindly or mechanically. Thus there is an inbuilt safeguard both for the accused and the defence. The proviso to section 294 of Cr. P. C., makes it very clear that even if the genuineness of a document filed by the prosecution or the accused under sub-section (1) of section 294 Cr .P.C is not disputed by the opposite party, the Court may require the proof of the signature of the person by whom it purports to be signed. In such a case the signatory of the document must appear in Court and prove his signature and the document will thereafter be read as substantive evidence. However a word of caution that, the medical evidence in a criminal case is of utmost importance as the correctness of both ocular and circumstantial evidence produced by the prosecution is tested on the touchstone of the medical evidence. Therefore even if the genuineness of the Post Mortem report is not disputed by the accused and the report is read as substantive evidence in the case, it may still be necessary to examine the doctor concerned to clarify his opinion mentioned in the PM report or to obtain his opinion on questions of medical nature if the Court feels it absolutely necessary to clarify the questions of a medical nature which may be involved in the case by calling the doctor who has issued the PM report in order to arrive at a correct decision in the case. This may be done by the Trial Court by examining him under section- 311 Cr.P.C. Sub-section (3) of section-294 of Cr.P.C covers the PM report and every other document of which genuineness is not disputed and all such documents can be read in evidence as genuine without the formal proof of such documents by examining the author thereof. Consequently, the view taken by the Full Bench of the Bombay High Court and the Allahabad High Court in the decisions reported in 1983 Crl. LJ 487 (SHAIKH FARID HUSSINSAB Vs. STATE OF MAHARASHTRA) and 1981 Crl.LJ 379 (SADDIQ vs. STATE) respectively have to be agreed and approve the view expressed by the Division Bench of the Court in the decision reported in ILR 2001 Kar. 2660 (SANNE GOWDA @ GOPALA vs. STATE BY SAKALESHPUR RURAL POLICE) and disapprove the observations made by the Division Bench of the Court in the case of ANJINAPPA Vs. STATE OF KARNATAKA reported in ILR 2000 Kar.3501 and hence it stands overruled. For the foregoing reasons, the PM report filed by the prosecution under sub-section (1) of section-294 Cr. P.C, whose genuineness is not disputed by the accused may be read as substantive evidence under sub-section (3) of section-294 of Cr.P.C.
Cases Referred: ILR 2000 Kar 3501; 1983 Crl. LJ 487; 1979 Crl. LJ. 236; 1997 SCC (Cri.) 857; 2002 (1) Supreme 11; 1981 Cri. LJ 379; 1996 Crl. LJ 203; AIR 1971 SC 1865; 1985 Crl. LJ 1446; ILR 2001 Kar 2660.
( 1 ) THIS is a reference to the full bench by the Division Bench of this Court involving a question of some legal importance as to the true interpretation of S. 294 of Cr. P. C. As the Division Bench of this Court in Crl. A. No. 338/99 (Boraiah alias Shekar v. State) was not in agreement with and did not propose to accede to the proposition of law laid down earlier by a Division Bench of this Court in the case of Anjinappa v. State of Karnataka, reported in ILR 2000 Kant 3501 and having been pursuaded to accept the view taken by the full bench of the Bombay High Court in the case of Shaikh Farid Hussinsab v. The State of Maharashtra, reported in 1983 Cri LJ 487 and being of the view that where the Post Mortem report is marked by consent and where its genuineness is not disputed, it is clearly admissible in evidence notwithstanding the fact that the author of the Post-mortem report is not called into the Court to give evidence, and moreso or especially where the defence has not chosen to cross-examine the doctor who conducted the post-mortem examination on the dead body of the deceased, has referred this question for decision or for resolution of the said legal issue by a larger bench under S. 10 of the Karnataka High Court Act and accordingly the matter is placed before this Bench.
( 2 ) HEARD the arguments of the learned Amicus Curiae for the appellant Sri Somashekar Angadi and the learned Addl. SPP Sri B. C. Muddappa as well as the learned advocates who were requested by issue of notice to assist this bench in resolving the issue referred by the Division Bench viz. , Sriyuths A. H. Bhagwan, S. G. Bhagwan, Hashmath Pusha and R. B. Deshpande. The said advocates effectively assisted this bench.
( 3 ) IT would appear from the case papers placed before this Bench that the earlier judgment of the Division Bench of this Court in the case of Anjinappa v. State of Karnataka, reported in ILR 2000 Kant 3501 was brought to the notice of the Division Bench of this Court hearing the Crl A. No. 338/99. The Division Bench of this Court hearing the said Crl. A. 338/99 did not share the view or did not propose to accede to the proposition of law laid down by the Division Bench in the case of Anjinappa v. State of Karnataka, reported in ILR 2000 Kant 3501 and on the other hand being pursuaded to accept the view taken by the full Bench of the Bombay High Court in the case of Shaikh Farid Hussinsab v. The State of Maha-rashtra, reported in 1983 Crl LJ 487, has observed as under :"10. In the case on hand, the genuineness of the document-post mortem report is not disputed by the defence. The defence Counsel had no objection to mark the document in evidence and therefore there was no prohibition for the Court, which had admitted the document in evidence to rely upon to find corroboration or contradiction to the other evidence on record. Therefore, we are of the opinion that where post-mortem report is marked by consent and where its genuineness is not disputed, it is clearly an admissible evidence. Notwithstanding the fact that the author of the post-mortem report is not called into the Court to give evidence, specially where the defence has not chosen to cross-examine the post-mortem Doctor. Therefore, the observations made by Their Lordships in the case of Anjinappa v. State of Karnataka, reported in ILR 2000 Kant 3501), extracted supra, with great respect, we do not propose to accede to this proposition laid down by the Division Bench in Anjinappa's case and in our opinion, it needs further consideration by a larger Bench. "
( 4 ) WE have heard at length the learned Addl. SPP as well as the learned Amicus Curiae for the appellant and also the learned advocates who were specially invited to assist the Court, on the matter in issue which is referred for resolution by this full bench and carefully perused the relevant provisions of the Cr. P. C. as well as the Evidence Act and also the several decisions which were brought to our notice
