SHAIKH FARID HUSSAINSAB Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This reference to the Full Bench raises a question of some importance as to the true interpretation of section 294 of the Code of Criminal Procedure of 1973. The appellant is convicted for an offence of murder under section 302, I.P.C. The trial Court relied, amongst others, on the post-mortem notes. The doctor, who held the post-mortem, and prepared the notes, was not examined at the trial. The defence lawyer had earlier indicated that he was not disputing the genuineness thereof in response to a query under sub-section (1) of section 294 of the Code. The trial Judge dispensed with its formal proof and received the report in evidence. In the course of the hearing of the appeal before the Division Bench, the learned defence Advocate contended that the report cannot be relied on without the evidence of the doctor and section 294 is not intended to dispense with proofs of such documents. Reliance was placed on the decision of another Division Bench of this Court in the case of (Ganpat Raoji v. State of Maharashtra), 1980 Mh.L.J. 60 in support of this contention. Reliance was also placed on two other judgments of the Gujarat and Allahabad High Courts relied on by the Division Bench in Ganpat Raojis case.

(2.) The learned Judges of the Division Bench could not agree with the ratio of Ganpat Raojis case (supra). The Division Bench indicated its reasons for the dissent and referred the point for decision to the Full Bench.

(3.) Mr. Phadkar, the learned Advocate appearing for the appellant, raised three points in support of this contention of the defence : (1) Indicating no dispute with the genuineness of the documents means at the most admission of the signature of the author and not the truthfulness of the contents. (2) Authority to "read in evidence" contemplated under sub-section (3) of section 294 does not amount to authority to use the same in evidence at the trial and (3) that without the doctors substantive evidence the post-mortem prepared by the doctor cannot be used in evidence, it having no evidentiary value.