The post-mortem report of a doctor who is dead or cannot be found is admissible and relevant under Section 32(2) of the Evidence Act.

MISRA, J.

( 1 ) THE appellant has been convicted under Section 302 I. P. C and sentenced to imprisonment for life- He is the eldest son of the deceased and used to slay with him. In the evening of 5-5-63. the deceased was preparing tobacco. The appellant wanted a little of it Not only the deceased refused to give a portion but he gave him a kick by way of admonition Appellant thereafter went to the house of his uncle (P. W 1 ). He by then possessed a bow, two arrows and a dart. He narrated the story to P. W. 1 as to how and why he was assaulted by his father. A tittle later, the deceased came towards them and asked the son to come back home saying that he would not assault him further. At this point of time the appellant shot the father with an arrow which pierced his left fore-arm and the right belly. Hardly had he gone a few steps back he fell down. P. W. 1 came to his help and pulled out the arrow. The deceased made a statement before P. Ws. 1 to 3 as to how he was shot by his son. He was removed to the Hospital where he died at about 5 p. m. on 15-5-1963, ten days after the date of occurrence.

( 2 ) BOTH in the committing court and Sessions Court, the plea of the appellant was that the deceased was drunk with Salap juice while carrying the arrows and bow. He fell down on his own arrow which pierced him in his belly and he died as a result of this accident.

( 3 ) ON a thorough discussion of the evidence the learned Judge came to conclusion thai the prosecution version was fully established and that the defence plea that the deceased died as a result of accident is not true. We have closely examined the evidence of eye-witness (P. W. 1) and the statement made by the deceased before P. Ws. 1 to 3. We are satisfied that the learned Judge reached the correct conclusion, that as a result of the injuries caused by the appellant by shooting an arrow the deceased fell down

( 4 ) THERE was post-mortem examination of the deceased but the post-mortem report has not been brought in evidence and exhibited as the doctor who made the examination had resigned from service and his whereabouts were not traceable. There is no medical evidence before the Court from which the nature of injuries caused by the arrow can be ascertained. The requisition (Ext. 4) made from the police Station to the Medical Officer on 7-5-1963 does not also show the nature of the injuries The requisition stated thus: all that is known of the case, at present, is as follows:

1. One injury on the left (right?) side belly. 2. One injury on the left forearm

The injury report given by the Medical Officer on 8-5-1963 has not been exhibited and not brought into record. None of the 3 eye witnesses P Ws. 1 to 3 gives any idea of the nature and dimensions of the injuries From the materials on record the nature of injuries cannot be ascertained and it cannot be said that death was the result of these injuries. II is difficult, therefore to hold that the injuries inflicted by the appellant caused the death of the deceased. The further questions that the appellant had the intention of causing death or the intention of causing bodily injury which was sufficient in the ordinary course of nature to cause death do not arise for consideration. In the absence of materials regarding the nature and dimensions of the injury, it is difficult to convict the appellant under Section 302, i. P. C.

( 5 ) THE learned Sessions Judge in para graph 6 of his judgment dealt with postmortem report and did not admit it into evidence. His reasons may be quoted in full-

"the doctor who held the post-mortem, could not be examined though the case was once adjourned for his examination only. He has left services and his whereabouts are not known and so the learned P. P. contended that the P. M. report may be admitted into evidence under section 35 Evidence Act. Since P. M. report is not substantive evidence nor it is maintained as contemplated under Section 32 Evidence Act, it cannot go in evidence and mo