SHABBIR MOHAMMAD Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The appellant-Shabbir Mohammad was prosecuted in case FIR No. 8/89 of Police Station, Peesangan, District Ajmer for having committed offences punishable under Sections 302 and 120-B IPC with the allegations that he, in conspiracy with some others (since acquitted), had caused fatal burn injuries on the person of his wife Abida (deceased). He was tried by the learned Sessions Judge, Ajmer in Sessions Case No. 124/89. One of the documents filed by the prosecution in support of its case was the post mortem report prepared by the doctor, who had conducted post mortem examination on the dead body of the deceased. The appellant was called upon to admit or deny the genuineness of the said post mortem report and, since he did not dispute the genuineness thereof, it was admitted in evidence as Ex. P. 10 under Section 294 of the Code of Criminal Procedure (the Code) and, thereupon, the prosecution did not produce the doctor concerned as a witness in the Court. The learned Sessions Judge, vide his judgement dated 23rd October, 1991, acquitted the appellant of the charge under Section 120-B IPC, but convicted him under Section 302 IPC and, vide the order of the same date, sentenced him to undergo imprisonment for life. Feeling aggrieved, the appellant approached this Court by filing appeal under Section 374 of the Code. During the course of the arguments in the appeal, it was contended by his learned counsel that the doctor, who conducted the post mortem on the dead body of the deceased, having not been examined as a witness during trial, the post mortem report, though admitted in evidence as Ex. P. 10, could not be read as substantial evidence and could be used only for the purposes mentioned in Sections 145, 157 and 159 of the Evidence Act and that once the post mortem report went out of the consideration, the conviction could not be sustained. Reliance was placed on a Division Bench judgement of this Court in case "Mahaveer v. State of Rajasthan" reported as 1981 Raj Cri C 145 besides on a judgement of the Bombay High Court in case "Ganpat Raoji v. State of Maharashtra" reported as 1980 Cri LJ 853. The learned Judges, of the Division Bench hearing the appeal, noted that the view taken by this Court in Mahaveer's case (supra) and by the Bombay High Court in Ganpat Raoji's case (supra) had also been taken by the Allahabad High Court in case "Jagdeo Singh v. State" reported as 1979 Cri LJ 236, but, subsequently, the Full Bench of the Allahabad High Court had taken a contrary view. The learned Judges, therefore, framed the following question and referred the matter to Hon' ble the Chief Justice for constituting a Larger Bench for answering the same :-

(2.) This is how this Reference has been placed before us under the orders of Hon' ble the Chief Justice.

(3.) We have heard the learned counsel for the parties.