1987 Supreme(Raj) 561
RAJASTHAN HIGH COURT AT JAIPUR BENCH
V.S.Dave, J.
Man Singh - Appellant
Versus
State of Rajasthan - Respondent
S.B. Criminal Appeal No. 462 of 1986.
Decided On : 18-03-1987
The opinion of a doctor who has not examined the victim is not admissible in evidence.
Headnote:
CRIMINAL APPEAL - SECTION 307 IPC - EVIDENCE - OPINION OF DOCTOR - ADMISSIBILITY - INJURY REPORT - INTERPRETATION - CONVICTION ALTERED FROM SECTION 307 IPC TO SECTION 326 IPC - SENTENCE REDUCED.
Fact of the Case:
The accused was convicted under Section 307 IPC for inflicting grievous injuries on the victim. The prosecution relied on the opinion of a doctor who had not examined the victim but had based his opinion on a letter from another doctor who had performed the surgery on the victim. The accused challenged the conviction on the ground that the opinion of the doctor was not admissible in evidence.
Finding of the Court:
The court held that the opinion of the doctor was not admissible in evidence as it was based on hearsay. The court also held that the prosecution had failed to prove that the injuries sustained by the victim were sufficient to cause death in the ordinary course of nature. However, the court found that the injuries were grievous in nature and altered the conviction of the accused from Section 307 IPC to Section 326 IPC.
Issues: 1. Whether the opinion of a doctor who had not examined the victim but had based his opinion on a letter from another doctor who had performed the surgery on the victim was admissible in evidence. 2. Whether the prosecution had proved that the injuries sustained by the victim were sufficient to cause death in the ordinary course of nature.
Ratio Decidendi: 1. The court held that the opinion of the doctor was not admissible in evidence as it was based on hearsay. The court relied on the decision in Bhanwarlal v. State of Rajasthan, where it was held that a certificate issued by a doctor is not admissible in evidence and can only be used by the witness as an aid to his memory. 2. The court held that the prosecution had failed to prove that the injuries sustained by the victim were sufficient to cause death in the ordinary course of nature. The court noted that the doctor who had examined the victim had not opined that the injuries were sufficient to cause death, and that the opinion of the doctor who had not examined the victim was not admissible in evidence.
Final Decision: The court partly allowed the appeal, altered the conviction of the accused from Section 307 IPC to Section 326 IPC, and reduced the sentence from 7 years rigorous imprisonment to the period already undergone.
JUDGMENT
1. - An extremely important question has been raised in this appeal as to whether an opinion can be given, and evidence tendered, on the basis of a letter written by one Doctor to another, when the doctor writing the letter has himself neither examined the injured nor performed the operation ?
2. The accused appellant preferred-this appeal challenging the conviction and sentence passed against him by Sessions Judge, Sawaimadhopur, dated 29-8-86, who convicted him for offence under Section 307 I.P.C. sentenced to 7 years rigorous imprisonment and a fine of Rs. 1,000/-in default of payment of fine, appellant has been ordered to under go further imprisonment for one year. Out of the fine imposed Rs. 500/- have been ordered to be paid to injured Rameshchand.
3. Prosecution case started with the FIR, Ex. P. 4-A, lodged by one Shri Chotelal PW 2. Who stated in the report that at 0.32 hours he was informed by shri Kishan Petiwala PW 4 that Ramesh Petiwala was carrying a box belonging to driver, of Train 206 Down, to running shed, when he reached near the steam engioe metre guage yeard, Mansingh NAC and Rameshchand suddenly started fighting. Mansingh inflicted an injury on the stomach of the Rameshchand by some object and ran away. Rameshchand started bleeding and has become unconscious. On the receipt of this report by SHO, GRP, Sawaimadhopur, a case was registered for offence under section 120 and 121 Indian Railways Act read with Section -323 I.P.C. and investigation commenced. After completing the investigation accused was charged sheeted in the court of Railway Magistrate," Kota for offence under Section 326 and 307 I.P C. alongwith offences under Section 120 and 121 of the Indian Railways Act. They were committed to the court of Sessions Judge, Kota where the trial proceeded and number of witnesses were examined, then an objection was raised that jurisdiction to try the accused vested in Sessions Judge, Sawaimadhopur as the offence has been committed in that Sessions Judge, Sawaimadhopur for denovo trial. Prosecution examined 7 witnesses in support of its case and the accused none. Learned Sessions Judge convicted and sentenced the accused appellant as indicated above Learned counsel for the appellant first argued the case on merits that no offence is made out, but later on give it up and in my opinion rightly so, as there is cogent and reliable evidence no record. There is the statement of injured Ramesh Chard PW 5 and Shri Kishan PW 4 to substantiate that the injuries inflicted on the person of the injured has been caused by none else then accused appellant. It is, however contended that in the facts and circumstances of the case, offence under Section 307 IPC cannot be held to be proved and offence would not travel beyond Section 308 IPC or maximum Section 326 IPC. It is submitted that Dr. P L. Bansal, PW 1 who had clinically examined the injured and who was functioning as the Medical Jurist in the General Hospital, Sawaimadhopur on the date of examination, i e., 30-8-83, had opined that only injury No. 3 was grevious while injuries 1,2,4 and 3 were simple in nature. He then stated in his statement that injury No. 1 was sufficient in the ordinary course of nature to have caused death on the basis of report given by Assistant Divisional Medical Officer (Surgeon), Kota on 17-9-98 that is 19 days after the occurrence. In cross examination Dr. Bansal admitted that it is not his opinion that the injury is sufficient in the ordinary course of nature to cause death, but what he has stated in the court is, and opinion based on Ex. P. 2 which is opinion of Rly. Doctor. Learned counsel has placed reliance no decision of this court in Bhanwarlal v. State of Rajasthan reported in RLW-1970, (Vol 21) page-68 . It is then submitted that PW 4 Shri Kishan at whose instance the report was lodged, has not come out with a story of infliction of injury by knife and Rameshchand has also stated that injury was caused on his person by some s
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