S.R. SINGH Vs. THE STATE

JUDGEMENT

(1.) The Appellant S.R. Singh was charged under Sections 302/34, Indian Penal Code, along with one Purushottam Dikshit on the allegations that on Oct. 14,1970, in furtherance of their common intention did commit murder by intentionally or knowingly causing the death of an Airman M.R. Jadav attached to the Air Force Station at Barrackpore. The learned Judge of the trial Court has acquitted the co-accused Purushottam Dikshit and convicted the Appellant under Sec. 302, Indian Penal Code. In view of the provision in the Code of Criminal Procedure (new) before inflicting the sentence, the learned Judge heard the Appellant who, as it appears from order No. 14 dated Sept. 11, 1974, stated that he committed the offence in self-defence and prayed for mercy. The exact words used by him are 'apne jan bachane ke Uye mara'. On a consideration of the statement the learned Judge has sentenced him to imprisonment for life. It is a trite proposition that when several persons are charged with any offence read with Sec. 34 of the Indian Penal Code, the conviction of one only of the offence itself apart from Sec. 34 is legal even when all the rest are acquitted.

(2.) In Oct. 1970 the deceased M.R. Jadav was an Airman of non-commissioned rank of the Air Force Station, Barrackpore and he was staying at the Air Force Camp having the facilities of bachelor's mess. The Appellant S.R. Singh was a clerk of the equipment accounts section and he was also staying in a billet at the said Air Force Camp. In the morning of Oct. 15, 1970, M.R. Jadav was found dead near billet No. A(6) within the Air Force Camp. It was in evidence that after the deadbody was detected the medical officer and other officers of the Air Force--P.Ws. 1, 2, 3, 4, 5, 6 and others went there. The medical officer examined the deadbody, but he has not been examined. The post-mortem examination was held by one Dr. A.K. Dasgupta, a medical officer in charge of the Police Case Hospital, Barrackpore, on Oct. 15, 1970. Dr. Dasgupta-being dead, P.W. 13 Dr. Deb, his srccessor-in-chief, deposed with reference to the carbon copy of the post-mortem report. Mr. Banerjee, appearing on behalf of the Appellant has submitted that on account of non-examination of Dr. Dasgupta the post-mortem report could not go into evidence. In developing his contention Mr. Banerjee has submitted that the post-mortem report of the doctor is his previous statement based on his examination of the deadbody and it is not substantive evidence. The doctor's statement in Court could alone be the substantive evidence. He has, further, submitted that the post-mortem report could be used only to corroborate the statement of the doctor under Sec. 157 or to refresh his memory under Sec. 159 or to contradict his statement in the witness-box under Sec. 145 of the Evidence Act. In this connection, Mr. Banerjee has referred to a decision of this Court in Roghuni Singh Vs. Empress I.L.R. 9 Cal. 455. We are aware of two other cases, one of the Allahabad High Court and the other of the Madras High Court, Bechan Prasad Vs. Jhuri, A.I.R. 1936 All. 363 and Rongappa Goundan Vs. Emperor, A.I.R. 1936 Mad. 426, holding identical view. In all these cases the doctor was available but was not examined. Their Lordships held that the post-mortem report or a letter giving opinion of the doctor was not admissible without the examination of the doctor. But in the present case, the doctor who held post-mortem examination being dead, those cases must however be distinguished from a case where the applicability of Sec. 32(2) of the Evidence Act is in point.

(3.) The injury report or the post-mortem report of the doctor, who is dead or cannot be found, is admissible and relevant under Sec. 32 of the Evidence Act. In Mohan Singh Vs. Emperor, A.I.R. 1925 All. 413 the Court dealt with a case where the Civil Surgeon, who conducted the postmortem, examination, had since died. The Bench consisting of Sulaiman and Mukherjee JJ. held that the post-mortem report was admissible under this section. In another case, State Vs. Rakshpal Singh, A.I.R. 1953 All. 520, the attendance of a medical officer could not be procured without delay and expense. The injury report submitted by him was held to be admissible and relevant after it was proved by his compounder. The same view has been taken by a Division Bench of the Patna High Court in Rambalak Singh Vs. State, A.I.R. 1964 Pat. 62 without any discussion of the principle. In that case, the doctor, who performed the autopsy over the deadbody, was abroad at the time of the trial and his handwriting and signature having been proved by another doctor, the post-mortem report was found admissible. In Mellor Vs. Walmsley (1905) 2 Ch. 164 C.A. it was held that the doctor was a professional man. It was his duty to record facts. These records were, therefore, admissible after his death as having been made in the course of duty. From the provisions of Sec. 32 of the Evidence Act and the relevant enunciation of the principle in different case laws, cited earlier, it seems to emerge that if the doctor is available for examination in Court, the injury report or the post-mortem report given by him is not substantive evidence and is inadmissible unless he is examined. It can be used for corroboration or refreshing memory or for contradiction of his evidence in Court. If, however, the doctor is dead or is not available for examination in Court under the circumstances mentioned in Sec. 32 of the Evidence Act, the injury report or the post-mortem report is admissible and relevant. What weight it would carry with a Court of fact is altogether a different question. Its probative value would depend on the facts and circumstances of each case. It is well-known that the Court has come to an independent conclusion as to whether or not the murder had been committed from other evidence on record regarding injuries de hors medical evidence. Mr. Banerjee has submitted that no value should be attached to the post-mortem report which has not been counter-signed by the Chief Medical Officer. It has transpired that Dr. Deb deposed with reference to the carbon copy of the post-mortem report and as such, counter-signature of the Civil Surgeon could not be expected in it. We have no reason to doubt the genuineness of the post-mortem report with reference to which Dr. Deb deposed before the Court.