Loku Basappa Pujari and Another vs State

Shah, J.—In an appeal against conviction and sentence in a murder trial after stating facts and discussing evidence and holding. that the evidence did not justify conviction His Lordship proceeded.)

Before parting with the case we think it necessary to deal with certain matters of practice which call for observations. We find that the notes of the post mortem examination of the dead body of Narayan have not been taken on the record, though the medical officer who performed the postmortem examination was examined as a witness. We have noticed in appeals coming from orders passed by the Sessions Court for Greater Bombay that in very rare cases the notes of the post mortem examination on the dead bodies of the victims are tendered and admitted in evidence, whereas in appeals from the Sessions Divisions in the mofussil, the notes of post mortem examination, whenever a post mortem has been held on a dead body, are invariably tendered and admitted in evidence. That these notes constitute valuable material for checking up the correctness of the medical and other evidence is undisputed. It is somewhat surprising that on an important matter of practice there should be absence of uniformity prevailing in the Courts of Session, subordinate to this Court. The learned Assistant Government Pleader, who appears before us, has fairly conceded that the notes of postmortem examination constitute a valuable piece of evidence, which assist the Court in understanding the medical and other evidence led before the Court, but he submitted that presumably because some of the Courts in India have expressed the View that the notes of post mortem examination are Inadmissible in evidence, that the practice prevails In the City Sessions Court to exclude them from evidence. We have invited the learned Advocates to argue the question before us and after carefully I considering the rival arguments, we are of the view that notes of post mortem examination cannot be [regarded as inadmissible in evidence.

Examining the question, apart from authority, we are of tie view, that the contention that notes of post mortem examination are inadmissible in evidence cannot be sustained. If the medical other who has performed the post mortem examination on a dead body deposes before the Court orally about the matters which are observed by him in the course of the post mortem examination, and entered by him in the notes, there can be no doubt that such evidence will be admissible. It is not contended by the Assistant Government Pleader that the medical officer who has made the post mortem examination is prohibited from giving evidence about the observations made by him of the condition of the dead body, the external and internal injuries and the condition of the various organs as explanatory of the opinion formed by him. If oral evidence given by the medical officer who has examined the dead body and who has noticed its condition is admissible in law, we fail to appreciate how a written record of the observations made by the medical officer may be regarded as inadmissible in evidence. The notes of post mortem examination are but a contemporaneous re ; cord made by the medical officer who performed the post mortem examination on a dead body for forming his opinion as to the cause of death. If ; instead of orally deposing before the Court about the individual observations made by him, the medical officer states that the notes maintained correctly set out his observations and the notes are then tendered in evidence, no fault can be found with the admission of those notes on the record. We may hasten to observe that the notes of the postmortem examination are of course not intended to be mechanically admitted on the record of the , case. In every case when the medical officer is" examined before the Court to establish the cause of death disclosed by a post mortem examination, he must be called upon to give evidence about the matters which have a bearing on the questions to be decided by the Court and he must also be called upon to depose whether the record made by him in the notes of the post mortem examination is true and if the medical officer deposes to the truth of the record made by him, the record itself may be treated as evidence. Admission of the notes in evidence is but a convenient method of maintaining , the record of the observations made and the opinion formed by the medical officer, when he orally deposes in a comprehensive form to the correctness of all the statements recorded therein,

We may now consider the authorities to which our attention was invited by the learned Assistant Government pleader in support of the contention that the notes of post mortem examination prepared by a medical officer from observations made by him are inadmissible. In Roghuni Singh v. The Empress, ILR Cal 455, it was observed that evidence of a medical man who has seen and has made a post mortem examination of the corpse of the person touching whose death the inquiry is, is admissible, firstly, to prove the nature of the injuries which he observed; and, secondly, as evidence of the opinion of an expert as to the cause of death. That observation is not consistent with the view that the notes of post mortem examination are inadmissible in evidence. But there are at page 461 of the Report the following observations, on which reliance is placed :

The Assistant Surgeon might have used this report to refresh his memory when giving evid ence; but the report itself was not admissible in evidence.

In that case the assistant Surgeon who performed the post mortem examination was examined before the Committing Magistrate, but not before the Court of Session. One Dr. Shaw was examined in the Court of Session at the trial as an expert by the prosecution, and the opinion given by Dr. Shaw was diametrically opposed to the testimony of the Assistant Surgeon. It appears that notes of the post mortem examination were not tendered in evidence through the Assistant Surgeon, but Dr. Shaw in giving his evidence based his opinion partly upon the facts recorded in the report made by the Assistant Surgeon and upon some other facts different from the facts observed by the Assistant Surgeon.'' Evidently the opinion formed by Dr. Shaw on the basis of some but not all the. observations made by the Assistant Surgeon could not make the report a part of the record. The report had to be proved, and not having been proved it could not be indirectly regarded as evidence because Dr. Shaw chose to base his conclusions upon some of the observations recorded therein. This case in our judgment, is not an authority for the proposition that the notes made by a medical officer who has performed the post mortem examination of a dead body and has made notes in that behalf are not admissible in evidence, even if the medical officer orally deposes to the correctness of the individual observations made and recorded by him, or comprehensively thereto. In Queen Empress v. Jadub Das, JLR 27 Cal 295, it appears that the medical officer who performed the post mortem examination was not examined by the Court of Session even though the evidence as given in the Committing Magistrate''s Court was not explicit as regards the actual cause of death. At the trial, a Civil Surgeon was examined as an expert but that officer was not examined on the points which were disclosed in the evidence of the medical officer who had conducted the post mortem examination. The sessions Judge look the statement of the medical officer on matters entered in the post mortem report. In that context it was observed :

Now that report is not admissible as evidence except to contradict the officer who made it. It may, however, be used by that officer when under, examination for the purpose of refreshing his memory.

That again, in our judgment, is not an authority in support of the proposition that even when oral evidence is given by a medical officer about the truth of the notes made at the post mortem examination the record of the notes is inadmissible. Our attention was also invited to Rangappa Goundan Vs. Emperor, . It was held in that case that the report of a postmortem examination on a dead body is not'' evidence, and can only be used by the witness who conducted the post mortem enquiry as an aid to memory. In that case, however, there is no discussion of the question whether the notes of postmortem examination may be proved in the manner stated by us, and may then be admitted in evidence. The judgment contains merely an ipse dixit that a post mortem report is not evidence, and can only be: used by witness who conducted the postmortem enquiry as an aid to memory and in sup port of the observation reliance was placed upon Jadub Das''s case, ILR Cal 295.

We may observe that in the Courts of Session functioning in this State outside the Greater Bombay area, it has been the consistent practice to admit the notes of post mortem examination where the evidence relating to such post mortem examination is relevant.

The learned Assistant Government Pleader concedes that this practice conduces to a better appraisal of the medical and other evidence in trials for offences of murder and culpable homicide. We have carefully considered the arguments advanced at the Bar and we are not satisfied that the observations recorded in the notes of post mortem examination which are relevant to the subject matter of enquiry are inadmissible even though the same are duly proved by the testimony of the medical officer who has performed the examination and has recorded the same.

(The rest of the judgment is not material to the report.)