GANPAT RAOJI SURYAVANSHI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) (After dealing with the facts as came on record and other aspects arising for consideration in paras 1 to 29, the Judgment proceeds). The next question is whether the prosecution has proved how Gangubai has died. In order to prove the cause of the death of Gangubai the prosecution has examined Dr. Tathe as P. W. 7. Dr. Tathe had not even performed the post -mortem examination of the body of Gangubai. In fact, it is not even shown that he had seen the body of Gangubai. He was at the relevant time Chief Medical Officer of the Cottage Hospital at Karad and two doctors were working under him in the year 1974. of them one was Dr. M. H. Kulkarni. It was this Dr. Kulkarni who had performed the postmortem examination on the dead body of Gangubai. Naturally Dr. Kulkarni alone was competent to come and to depose to the injuries which were found on the body of Gangubai and to give opinion as to whether those injuries were the cause of the death of Gangubai. Unfortunately, on 18th of September 1975 when Dr. Kulkarni was to be examined, Dr. Tathe appeared in the Sessions Court. The Public Prosecutor filed an application purporting to be one under Sec. 294 of the Code of Criminal Procedure in which it was mentioned that Dr. M. H. Kulkarni of the Cottage Hospital of Karad was on leave and he could not be traced though the Court summons for his attendance was sent. The application then proceeded to mention that the prosecution, under the circumstances, begs to produce the post -mortem notes drawn by the doctor as evidence. It was also stated that the defence may be called upon to admit or deny the document of post mortem examination notes. We will show presently that this application, though purporting to be one under Sec. 294 of the Code of Criminal Procedure, cannot be one under that section. Even the recitals in the application which are briefly mentioned above cannot bring that application under the provisions of Sec. 294 of the Code. Before we examine this application we must regretfully mention that 1he learned Advocate appearing for the accused made an endorsement that he had no objection for admitting the memorandum of post -mortem notes on record and for exhibiting the same. After this the learned Sessions Judge made an endorsement: "Granted". With this order having been passed at Exh. 22, Dr. Tathe stepped into the witness -box and gave his opinion on the basis of the entries made in the memorandum of the post -mortem examination.

(2.) Sec. 294 of the Code of Criminal Procedure is in the following terms:

(3.) We must now proceed to examine as to whether the memorandum of the post -mortem examination conducted by the doctor can be brought on record by resorting to the provisions contained in Sec. 294 of the Code. It is well settled that the memorandum of the post -mortem examination is not substantive evidence by itself. It is a document containing the notes made by a doctor contemporaneously while he is conducting the post -mortem examination. That memorandum can be used by the doctor for refreshing his memory while he is giving evidence in the Court. It may be used by the defence, if necessary, for contradicting the doctor's evidence in the Court.