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Not obligatory to question the doctor who conducted the post-mortem examination if the accused does not challenge the authenticity of the post-mortem report: Orissa High Court

Title: Leven Kerketta v. State of Odisha

Citation: JCRLA No. 43 of 2008

Decided on: 02.11.2023

Coram: Justice Sangam Kumar Sahoo and Justice Chittaranjan Dash

Introduction

The Orissa High Court clarified that there’s no obligation to examine the doctor who conducted the post-mortem examination if the accused does not contest the authenticity of the report. It further ruled that when the accused acknowledges the report’s authenticity, it can be considered as direct evidence. The Division Bench comprising Justice Sangam Kumar Sahoo and Justice Chittaranjan Dash explained the requirement of Section 294 of the Code of Criminal Procedure. According to them, under Section 58 of the Evidence Act and Section 294 of Cr.P.C., if both the prosecution and the accused agree on the genuineness of a document, it can be treated as primary evidence.

Facts of the case

The Court reviewed a criminal appeal filed by the accused-appellant, who contested his conviction under Section 302 of the IPC for the murder of the deceased. According to the prosecution, the appellant witnessed his wife with the deceased in the latter’s house late in the evening. Enraged by this, he allegedly attacked his wife and fatally assaulted the deceased. After assessing the evidence presented, the trial Court determined that the appellant was indeed responsible for the murder of the deceased and subsequently convicted and sentenced him accordingly.

Court’s observation and analysis

The Court initially examined whether the deceased’s death was the result of a homicidal act. It noted that the doctor who conducted the post-mortem examination on the deceased was not presented as a prosecution witness during the trial. However, it was discovered from the trial court’s records that the State Defence Counsel, representing the accused-appellant, had submitted a memorandum admitting the post-mortem report. As a result, the trial Court accepted the report as evidence and waived the need for the doctor’s testimony. The High Court interpreted Section 294 of the Cr.P.C., which allows the accused to forego the proof of documents, such as the post-mortem report, by admitting its authenticity or not disputing it when requested to do so under Section 294(1) of the Cr.P.C. Therefore, in such cases, Section 294(3) of the Cr.P.C. enables the Court to admit the report as evidence without adhering to the procedures outlined in the Evidence Act.

The Court further explained that the post-mortem report, as presented by the prosecution, qualifies as a “document” under Section 29 of the IPC and Section 294(1) of the Cr.P.C. Such a report can be treated as substantive evidence, replacing the need for the doctor’s testimony, if its authenticity is not challenged by the accused.

In the present case, since the post-mortem report was admitted without dispute, the Court accepted it as genuine evidence. In addition to the post-mortem report, the Court reviewed other substantial evidence, including the eyewitness account of the deceased’s mother, as well as the recovery of the weapon used in the crime based on the appellant’s statement. Based on this evidence, the Court concluded that the deceased’s death resulted from a homicidal act. However, the Bench determined that the appellant’s actions were provoked by the sudden sight of his wife with the deceased, and the offense was not premeditated. Therefore, the Court decided to change the appellant’s conviction to one under Section 304 Part II for culpable homicide not amounting to murder.

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Written by- Amrita Rout

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