Himachal Pradesh High Court
Pappu Ram vs State Of Himachal Pradesh on 16 July, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal No. 422 of 2009
Reserved on: 15.07.2015
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Date of decision: 16.07.2015
Pappu Ram
......Appellant.
Vs.
State of Himachal Pradesh
.....Respondent.
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Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge
The Hon'ble Mr. Justice Sureshwar Thakur, Judge
Whether approved for reporting?1 Yes.
For the appellant : Mr. Virender Singh Rathore, Advocate.
For the respondent: Mr. M.A. Khan, Additional Advocate
General.
Rajiv Sharma, J.:
This appeal is instituted against the judgment and order, dated 27.07.2009, passed by the Additional Sessions Judge, Fast Track Court, Shimla, H.P. in Sessions Trial No. 11-S/7 of 2009, whereby the appellant-accused (hereinafter referred to as "the accused"
for the sake of convenience), who was charged with and tried for an offence punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act, 1959, was convicted and sentenced to undergo imprisonment for life and to pay fine of `25,000/- under Whether the reporters of the local papers may be allowed to see the Judgment? Yes.::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 2
Section 302 of the Indian Penal Code and in default of payment of fine, to further undergo simple imprisonment for a period of two years. He was also sentenced to undergo rigorous imprisonment for a period of .
three years and to pay fine of `10,000/- under Section 27 of the Arms Act, 1959 and in default of payment of fine, to undergo simple imprisonment for a period of one year.
2. Case of the prosecution, in a nut-shell, is that statement of Sh. Jeet Singh Rana (PW-1) was recorded under Section 154 Cr. P.C. vide Ex.-PA. On 03.11.2008, he attended the marriage of Sh. Sanjeev Samra. The villagers had assembled in the marriage. Around 2:00 p.m., Shri Rash Pal Mehta reached at village Khanola in his vehicle No. HP-
01-3702. Sh. Rash Pal Mehta came to Khanola from Rohru via Summerkot. He (Rash Pal) told Sh. Ramesh Samra that on his way to Khanola, he saw an old man and an old woman lying in Banglah Nallah on the road side. The necks of the elderly persons had been slit, the blood was oozing out. Sh. Ramesh Samra in turn, narrated the said fact to him (complainant). He (complainant) inquired about the incident from his aunt Smt. Urmila, who had come in the vehicle of Sh. Rash Pal Mehta from Summerkot to Khanola. She too disclosed before him (complainant) that an old man and an old woman were lying injured in Banglah Nallah. Smt. Sunpati Devi (PW-6) was also present in the marriage. She remarked that in the morning at about 11:00 a.m., Sh.
Pappu Ram (accused) and his mother Smt. Sana Devi had gone with her father-in-law Sh. Shyam Nath and mother-in-law Smt. Lobhi Devi ::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 3 to the temple of Sh. Maheshwar Devta in village Pujarli. When they left for the temple, the accused was wielding a khukri. The accused was saying for the last many days that he wanted to have the blood of a .
human being. This statement was even made by the accused in the presence of the villagers. Smt. Sunpati Devi remarked that perhaps her father-in-law and mother-in-law might have been killed by the accused.
PW-1 Sh. Jeet Singh Rana, Sh. Manmohan, Sh. Mahavir Singh and Sh.
Mehar Singh etc. went to the site of the crime. They spotted the dead bodies. Consequently, FIR No. 98 of 2008, Ex. PW-9/A was registered.
The dead bodies were taken into possession. Post mortem was got conducted on the dead bodies. The death was caused due to large amount of blood loss from ante mortem injury from large blood vessels at the level of neck. The accused made a disclosure statement, which led to the recovery of khukri. Khukri, jacket of accused and the walking sticks of the deceased etc. were sent for examination. The investigation was completed and the challan was put up after completing all the codal formalities.
3. The prosecution has examined number of witnesses to support its case. The accused was also examined under Section 313 of the Cr. P.C. Accused denied the case of the prosecution. The accused was convicted and sentenced, as noticed hereinabove. Hence, this appeal.
::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 44. Mr. Virender Singh Rathore, learned counsel for the appellant has vehemently argued that the prosecution has failed to prove the case against the appellant.
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5. Mr. M.A. Khan, learned Additional Advocate General has supported the judgment and order, dated 27.07.2009.
6. We have heard the learned counsel for the parties and gone through the judgment and records, carefully.
7. PW-1 Jeet Singh Rana deposed that on 03.11.2008, the marriage of Sh. Sanjeev Samra was solemnized. The villagers had assembled. Sh. Ramesh Samra told them that Sh. Rash Pal Mehta, driver of a vehicle had come from Rohru side and told him that the dead bodies of an old man and woman were lying in Banglah Nallah.
The driver had also told that the blood was oozing out of the necks of the deceased. He narrated the said fact to the other persons present in the marriage including S/Sh. Manmohan, Mehar Singh and Rajinder Singh etc. Thereafter, they went to the spot. They spotted the dead bodies of Lobhi Devi and Shyam Nath lying there. Smt. Sunpati Devi, the daughter-in-law of the deceased met them at Khanola Bus Stand.
She started crying and remarked that her father-in-law and mother-in-
law had gone with Sh. Pappu Ram (accused) in the morning to a temple. She further deposed that Sh. Pappu might have killed them.
Smt. Sunpati Devi also told them that when Pappu Ram left the house in the morning, he was carrying a khukri. Sunpati Devi even conveyed to them that the accused was saying "Use Khoon Ki Pyas Lagi Hai".
::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 5Accused had come to village Khanola 2-3 days prior to the date of the incident. He further deposed that after reaching the spot, he informed the police. Police reached at the spot. He made the statement Ex. PA. In .
his cross-examination, he admitted that they were not knowing that Lobhi Devi and her husband Shyam Nath had been murdered. Sunpati Devi met them before they left for the spot. She met them at Khanola.
He admitted that the accused never remarked in his presence "Ki Use Khoon Ki Pyas Hai".
8. PW-2 Mehar Singh deposed that on 03.11.2008, the marriage of Sanjeev Samra was to be solemnized in the village. They alongwith the villagers were present in the wedding. They came to know from Sh. Rash Pal Mehta that two dead bodies were lying in Bangla Nallah. Smt. Sunpati Devi had met them in Khanola. She told them that her father-in-law and the mother-in-law had gone with accused Pappu Ram in the morning to the temple of Shri Maheshwar Devta. She also told them that the accused was carrying a khukri. The accused used to remark "Ki Use Khoon Ki Pyas Hai". Smt. Sunpati conveyed to them that her in laws might have been killed by the accused. In his cross-examination, he admitted that the accused never remarked in his presence "Ki Use Khoon Ki Pyas Hai".
9. Sh. G.S. Rathore, learned Public Prosecutor has placed on record Ex. PG, the post mortem report of Sh. Shyam Nath and Ex. PH, the post mortem report of Smt. Lobhi Devi.
::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 610. PW-3 Smt. Sana Devi deposed that the accused came to the house of Pushpa for some time and then went back to his house.
Accused remarked that she and her in-laws should accompany him to .
the temple in the morning. She alongwith accused, her father-in-law, Sh. Shyam Nath and the mother-in-law Smt. Lobhi Devi went to the temple in the morning. The temple of Devta Sahib was located in Pujarli. They did not go to the temple. They reached near the temple at about 12:30 noon and went to the house of the Pujari. The Pujari remarked that Shri Devta Sahib will come out of the temple after two days and they should come on that day to pay the obeisance. Then, they started back for village Khanola from Pujarli. All of them came together up to the road. From the road, the accused went back to the house. She, her father-in-law and mother-in-law kept on walking.
Nothing took place in her presence. She was declared hostile and was cross-examined by the learned Public Prosecutor. She admitted that she had stated before the police that on 02.11.2008, during the night she and the accused slept in different rooms in the house of Pushpa.
She admitted that when they were returning from the temple, as the accused started staring at her, she started moving ahead of the others due to his fear. She denied the suggestion that she saw the accused inflicting the injuries with the khukri on the person of Sh. Shyam Nath.
She did not state before the police that she had seen the accused causing the injuries with the khukri on the neck of Sh. Shyam Nath, where after he fell down (she was confronted with portion A to A-1 of ::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 7 Ex. PW-3/A where it was so recorded). She admitted that when the accused proceeded towards Smt. Lobhi Devi with the khukri, she ran away due to fear. She hid herself in the bushes. She was cross-
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examined by the learned counsel appearing on behalf of the accused.
She has categorically admitted that she did not see anyone inflicting the injuries on the person of the deceased. She further stated that she made the statement before the police due to fear of the police.
11. PW-4 Sh. Sukh Chain deposed that his wife Smt. Sunpati Devi rang him up and informed him that his parents have been murdered by the accused. He went to Banglah Nallah. He reached there at 4:00 p.m. The police took the photographs and the walking sticks etc. of the deceased into possession. Accused fled away from the spot.
He was apprehended by the police on the same day in the evening. The accused made a statement before the Police that he has concealed the khukri on the Suthli Road at a place known as Madi. The accused had even stated before the police that he had kept his jacket in the bushes below the road. He told the police that he can get the khukri and the jacket recovered. His statement was recorded vide Ex. PW4/A. Khukri and jacket were recovered and taken into possession by the police vide memos Ex. PW4/B and PW4/C.
12. PW-5 Sh. Mahavir Singh deposed that on 02.11.2008, the marriage of Sanjeev Samra was to take place in the village. He and other villagers had assembled to attend the wedding. Sh. Rash Pal Mehta came there in a vehicle and told Sh. Ramesh Samra that two ::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 8 dead bodies are lying in Bangla Nalah. Sh. Ramesh in turn conveyed the said fact to them. Smt. Sunpati Devi told them nothing on that day.
He again stated that Sunpati Devi told them that the accused had gone .
with the deceased to the temple and used to remark that he wanted to have the blood. When they reached the spot, they found the dead bodies of Shyam Nath and Lobhi Devi lying there. His statement was recorded by the police. The accused led the police party to the place where he had concealed khukri in Suthli Nalah and got it recovered.
Khukri and jacket were recovered from there and the same were taken into possession by the police vide Ex. PW4/B and Ex. PW4/C.
13. PW-6 Smt. Sunpati is the material witness. According to her on 03.11.2008 at 11:00 a.m., the accused went with her father-in-
law Shyam Nath, mother-in-law Lobhi Devi and his mother Sana Devi to the temple of the Devta in Village Pujarli. When the accused went to the temple, he was carrying a khukri. He was also wearing a jacket.
The accused used to remark that he was facing the curse of the Devta due to his grandparents. Her father-in-law and mother-in-law used to walk with the help of the sticks. Smt. Lobhi Devi was wearing dhatu on that day. She came to know in the marriage that Shyam Nath and Lobhi Devi have been killed. This fact was narrated to them by the taxi driver. She rang up her husband and informed him about the incident.
Smt. Sana Devi also told her that her son Pappu had committed the murders. The accused killed his grandparents as he suspected that he is facing the curse of the Devta due to them. Her statement was ::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 9 recorded by the police. She identified the Khukri Ex. P4. In her cross-
examination, she had admitted that she had not seen Sana Devi in the company of the accused and the deceased.
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14. PW-7 Sh. Sita Ram deposed that on 03.11.2008, the accused, his mother and grand parents had come to the temple. All of them met him and asked him to bring the Devta out of the temple, so that they can make the inquiries. As he was busy, he asked the accused etc. to come after two days. Thereafter, the accused, his mother and grand parents left for the village.
15. PW-8 Sh. Durga Dev is a formal witness. PW-9 HC Rukam Chand deposed that ASI Kuldeep Singh deposited six parcels with him.
The same were sent to FSL, Junga for chemical examination through Constable Amit Kumar vide RC No. 122/08, dated 10.11.2008.
16. PW-10 Constable Amit Kumar has taken the case property to FSL Junga vide RC No. 122/08. PW-11 Constable Madan Singh and PW-12 Inspector Lal Man are formal witnesses. PW-13 ASI Kuldeep singh deposed that he proceeded to the spot alongwith the staff. The intimation regarding the incident was given to the Deputy Superintendent of Police, Rohru. When he reached the spot, he found the dead bodies of an old man and an old woman lying in Bangla Nalah.
PW-1 Jeet Singh Rana made the statement vide Ex. PA before him. FIR was registered. He prepared the site plan Ex. PW-13/B showing the place of the incident. The walking sticks of the deceased having blood stains Ex. P-1 and Ex. P-2 as well as the blood stained soil etc. were ::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 10 taken into possession by him vide memos Ex. PB to PE. He prepared the inquest reports Ex. PW13/C and Ex. PW13/D. The photographs were also taken on the spot. He deposited the case property with MHC .
in the Police Station.
17. According to rukka Ex. PA, PW-1 Sh. Jeet Singh Rana was attending the marriage. Sh. Rash Pal Mehta, driver of vehicle No. HP 01-3702 told Ramesh Samra that when he was coming from Khanola side, he saw an old man and an old woman qroaning in the Nallah.
Ramesh Samra told the incident to him. Thereafter, he asked his aunt about the same, since she had also travelled from Sammerkot to Khanola in the vehicle. She told that at Bangla Nalah throats of an old man and an old women were slit. In the morning, Sunpati Devi, w/o Sukhchain, resident of Khanola told him that at about 11:00 a.m., her father-in-law Som Nath and her mother-in-law Lobhi Devi had gone with Pappu Ram with his mother Sana Devi to pay obeisance at the temple of Sh. Maheshwar Devta in village Pujarli. He was carrying a khukri. Sunpati Devi told that Pappu Ram, the accused might have killed her father-in-law and mother-in-law. However, when PW-1 Jeet Singh Rana has appeared before the Court, he deposed that Smt. Sunpati Devi, the daughter-in-law of the deceased met them at Khanola Bus Stand. PW-6 Smt. Sunpati deposed in her examination-in-chief that she came to know about the incident in the marriage that Som Nath and Lobhi Devi had been killed. PW-5 Sh. Mahavir Singh initially said that Sunpati had told them nothing about the incident on that ::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 11 day, however, she volunteered that Sunpati Devi told them that the accused had gone with the deceased to the temple and used to remark that he wanted to have the blood. The incident was narrated by Sh.
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Rash Pal Mehta to Sh. Ramesh Samra and Sh. Ramesh Samra told it to PW-1 Sh. Jeet Singh. However, neither Rash Pal Mehta nor Ramesh Samra has been examined by the prosecution.
18. Mr. M.A. Khan, learned Additional Advocate General submitted that Rash Pal Mehta and Ramesh Samra have not been examined to avoid repetition. However, in order to complete the sequence, it was necessary to examine Sh. Rash Pal Mehta and Sh.
Ramesh Samara.
19. The motive attributed by the prosecution to the accused for killing his grand parents is that he was suspecting that he was facing the curse of the Devta due to them. This is not believable. Why a man would kill his grand parents only on the assumption that he was facing curse of Devta due to them. In case Sh. Rash Pal Mehta and Urmila Devi had seen the old man and old women lying in the Nallah, they ought to have got down and tried to save them, but instead of getting down at Nallah, they had gone to attend the marriage and told Sh. Jeet Singh Rana and others about the incident. According to PW-6, Smt. Sunpati, the accused was carrying khukri at the time when he had gone to the temple with his mother and her father-in-law and mother-in-law.
The accused was saying "Use Khoon Ki Pyas Lagi Hai". If that was so, she should have warned her father-in-law and mother-in-law not to go ::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 12 with the accused, more particularly, when according to her, the accused was carrying a khukri. The only eye witness to the entire incident is PW-3 Smt. Sana Devi. Sana Devi in her examination-in-chief .
has categorically stated that nothing took place in her presence. She was declared hostile. She was cross-examined, as noticed above, by the learned Public Prosecutor. She did not state before the police that she had seen the accused causing the injuries with khukri on the neck of Sh. Shyam Nath, whereafter, he fell down (she was confronted with portion A to A-1 of Ex. PW3/A where it was so recorded). In her cross-
examination by the learned counsel appearing on behalf of the accused, she categorically again deposed that she did not see any one inflicting the injuries on the persons of the deceased. She made the statement to the police due to fear of the police. The cause of death of the deceased was due to large amount of blood loss from ante mortem injury from large blood vessels at the level of neck. This was preliminary opinion.
The post mortem reports are Ex. PG and Ex. PH. The doctor who has conducted the post mortem examination, has not been examined.
Moreover, there is no final opinion of the doctor placed on record and in column No. 9 of the post mortem report, it is stated that the chemical examination report was awaited. There is no material other than the copies of post mortem reports Ex. PG and Ex. PH on record. The probable time that elapsed between injury and death was almost immediate and the probable time that elapsed between the death and post mortem was 24 hours.
::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 1320. Mr. M.A. Khan, learned Additional Advocate General for the respondent/State has submitted that the human blood group-A was found on the jacket of Pappu Ram and khukri. The prosecution was .
required to connect the accused with the crime, which it has failed to do so.
21. In view of the inherent contradictions/embellishments in the statements of witnesses cited hereinabove, it cannot believed that the accused was carrying khukri with him when he left for paying obeisance at Pujarli. A person would not carry the weapon of offence openly and proclaiming that "Use Khoon Ki Pyas Lagi Hai". Since the doctor has not been examined by the prosecution, it cannot be said that the injury was caused with the khukri allegedly recovered at the instance of the accused. Even PW-6 Smt. Sunpati has proclaimed that she had seen the accused carrying khukri and he was saying that "Use Khoon Ki Pyas Lagi Hai". If that was so, we have already discussed, she would have forewarned her father-in-law and mother-in-law instead of going to attend the marriage. Thus, the prosecution of the accused under Section 27 of the Arms Act, 1959 of the Act is also bad in law.
22. Mr. M.A. Khan, learned Additional Advocate General has also argued that the examination of the doctor was not necessary since Ex. PG and Ex. PH have been admitted.
23. In AIR 1961 Gujarat 196 titled as Municipal Corporation of City of Ahmedabad Vs. Gandhi Shantilal Girdharlal and another, the Division Bench has held that the opinion of a doctor as to the ::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 14 nature of injuries received by and the nature of the incapacity incurred by the plaintiff in a collision between buses is relevant under Section 45 of the Evidence Act. Such opinion however must be duly proved, that is, .
as provided in Section 60 of the said Act by the evidence of the person who holds that opinion. Hence, the medical certificates given by the doctor to the plaintiff cannot, without his examination in Court, be admitted in evidence. The Division Bench has held as under:
"17. In the instant case, medical certificates have been admitted in evidence without objection, although the doctors who issued them were not examined as witnesses. It is therefore contended that the certificates are inadmissible in evidence to prove the nature of the injuries and the nature of the resulant incapacity of the plaintiff. Section 165 of the Evidence Act provides that the judgment must be based upon facts declared by the Evidence Act to be relevant and duly proved.Section 5 of the Evidence Act provides that evidence may be given in any suit or proceeding of the existence Or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others. The nature of injuries sustained by the plaintiff and the nature of his incapacity are of course relevant facts on the question of damages. These relevant facts are sought to be proved by the opinion of the doctor contained in the medical certificate. The opinion of a doctor as to the nature of injuries and the nature of the incapacity is relevant underSection 45 of the Evidence Act. Such opinion however must be duly proved. Section 59 provides that all facts, except the contents of documents may be proved by oral evidence. The relevant fact is the opinion of the doctor and not the contents of a document. The opinion of the doctor ::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 15 must, as provided in Section 60 of the Evidence Act, be proved by the evidence of the person who holds that opinion. Section 60 lays down the only manner of proving such opinion. We are not dealing with Opinions of experts .
expressed in treatises which are dealt with in the proviso to Section 60.Section 60 is imperative and provides that the only manner of proving the opinion of a doctor is by the evidence of the person who holds that opinion. The medical certificates should not therefore have been admitted in evidence, as evidence of the opinion of the doctor.
23. The Evidence Act does not make a medical certificate relevant except in some special cases such as those referred to in Section 32. Excluding such special cases, it is the opinion of the doctor that has to be proved as a relevant fact and not the medical certificate. The doctor who issues a medical certificate stating his opinion has to be examined to give evidence -- in the only permissible way -- of his opinion and not, as observed in AIR 1953 Mad 858, to prove the certificate. Even though the signature on the medical certificate is proved, the certificate would not be evidence of the opinion of the doctor except in such special cases as those referred to in Section 32."
24. In AIR 1964 Supreme Court 1625, titled as Mohd. Ikram Hussain Vs. The State of Uttar Pradesh and others, in a case relating to age of girl, the report of the doctor who examined her was not before the Court but reference to it made in affidavit of another person, their lordships have held that such affidavit was not admissible under Evidence Act in proof of contents of the document. Their Lordships have held as under:
::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 16"16. In the present case Kaniz Fatima was stated to be under the age of 18. There were two certified copies from School registeres which showed that on June 20, 1960 she was under 17 years of age. There were also the affidavit of .
the father stating the date of her birth and the statement of Kaniz Fatima to the police with regard to her own age. These amounted to evidence under the Indian Evidence Act and the entries in the school registers were made ante litem motam. As against this the learned Judges apparently held that Kaniz Fatima was over 18 years of age. They relied upon what was said to have been mentioned in a report of the Doctor who examined Kaniz Fatima, though that report was not before them. Reference to it was made in the affidavits of Mahesh and the Sub Inspector which were both hearsay and not admissible under the Evidence Act in proof of the contents of a document. The primary documentary evidence ought ot has been summoned. The High Court thus reached the conclusion about the majority without any evidence before it in support of it and in the face of direct evidence against it."
25. In AIR 1967 Andhra Pradesh 338 titled as Bommidala Poornaish Vs. The Union of India, the Division Bench has held that if party does not object to admission of reports by experts or certificates, the party can be said to have waived proof of it and not its relevance.
The Division Bench has held as under:
"26. In so far as the admissibility of Exs. B-29 and B-30 is concerned, Mr. Chinnappa Reddy contends that these documents are not admissible and cannot be acted upon as evidence in the case. While the plaintiff did not raise any objection to these documents, he could only be said to ::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 17 have waived the proof of it and not the relevance. Under the Evidence Act, hearsay evidence is inadmissible and these documents can have no higher value than hearsay evidence. Statements made by persons not examined in Court are only .
admissible in evidence if they fall within Section 32 of the Evidence Act or could be used for the purposes of contradiction or corroboration when the person making them is examined, under Section 145 or 157 of the Evidence Act, Secs 56 to 58 in Chapter 3 of the Evidence Act provide that facts admitted need not be proved. Chapter IV lays down the requirement of oral evidence. Section 60 provides that oral evidence must in all cases whatever be direct and if the oral evidence refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of person who holds that opinion on those grounds. Expert's evidence cannot be an exception to this rule, unless the statute so provides, as in the case of chemical examiner's report, etc., under Chapter XLI of the Criminal Procedure Code. Unless it can be shown that these documents fall under any particular provision of the Evidence Act, they cannot be held to be admissible, Mr. Ramachandra Rao was unable to draw our attention to any such special rule either in the Evidence Act or under the Act. In Palaniappa v. Bombay Life Assurance Co., Ltd., AIR 1948 Mad 298 at p. 299, a Bench of the Madras High Court was considering the admissibility of a questionnaire and its answers by the doctor were admitted in evidence without the doctor being examined. It was held that these were not admissible in evidence. The facts spoken to in them which were relevant issues in the suit could be proved only by giving oral evidence of them in Court. The doctor could and should have been examined by the defendant and the statements made by him in the correspondence with the ::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 18 Company are certainly no evidence of the correctness of the allegations made therein. The contention in that case that the documents were properly admitted in evidence because the plaintiffs permitted them to be marked by consent, was .
held not to make any difference to the non-admissibility of those documents Horwill, J., observed:
"Permitting a document to be marked by consent only means that party consenting is willing to waive his right to have the document in question proved, i.e. the plaintiffs were prepared to admit that Ex. D7C was what it purported to be; a certificate by Dr. Natarajan sent to the defendant company in response to the letter of the company to the plaintiff asking for such a certificate, and that Ex. P-2 was the reply of Dr. Natarajan to the questionnaire sent by the company to the doctor. Agreeing to the document being marked by consent certainly did not mean that the plaintiff accepted the correctness of every statement made by Dr. Natarajan in Exs. P-2, and D7C"
Again in Perumal Mudaliar v. S. I. Rly. Co. Ltd., AIR 1937 Mad 407, Beasley, C. J., took a similar view to the one we have taken, namely, that the evidence of experts must be given in the ordinary way and subject to certain exceptions, viz., the certificate of the Imperial Serologist as to the nature of blood stains ans of the Chemical Examiner, which are made admissible by themselves as such. It is quite obvious that the opinion of an expert must be given orally and that a mere report or certificate by him cannot possibly be evidence. Unless the expert goes into the witness boss and gives oral evidence, there can be no cross-examination of the expert at all."
::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 1926. Their Lordships of the Hon'ble Supreme Court in Vijender Vs. State of Delhi (1997) 6 Supreme Court Cases 171 have held that in a case where post mortem report produced by record clerk of hospital .
and the doctor who conducted post mortem not examined, in such circumstances post mortem report was not admissible. Their Lordships have held as under:
"19. It passes our comprehension how the trial Judge entertained the post mortem report as a piece of documentary evidence on the basis of the above testimony of a clerk in spite of legitimate objection raised by the defence. In view of Section 60 of the Evidence Act, referred to earlier, the prosecution is bound to lead the best evidence available to prove a certain fact; and in the instant case, needless to say, it was that of Dr. U.C. Gupta, who held the post mortem examination. It is of course true that in an exceptional case where any of the prerequisites of Section 32 of the Evidence Act is fulfilled a post mortem report can be admitted in evidence as a relevant fact under Sub section (s) thereof by proving the same through some other competent witness but this section had no manner of application here for the evidence of PW 21 clearly reveals that on the day he was deposing Dr. Gupta was in that hospital. The other reason for which the trial Judge ought not to have allowed the prosecution to prove the post mortem report is that it was not the original report but only a carbon copy thereof, and that too not certified. Under Section 64 of the Evidence Act document must be proved by primary evidence, that is to say, by producing the document itself except in the cases mentioned in Section 65 thereof. Since the copy of the post mortem report did not come within the purview of any of the ::: Downloaded on - 15/04/2017 18:36:07 :::HCHP 20 clauses of Section 65 it was not admissible on this score also."
The prosecution has failed to prove the case against the .
accused beyond reasonable doubt.
27. Accordingly, in view of the observations and discussion made hereinabove, the appeal is allowed. The judgment and order, dated 27.07.2009, are set aside. The accused is acquitted of the charges framed against him. He be released forthwith, if not required in any other case. The Registry is directed to prepare the release warrant and send the same to the concerned Superintendent of Jail.
(Rajiv Sharma) Judge (Sureshwar Thakur) Judge July 16, 2015 (bhupender) ::: Downloaded on - 15/04/2017 18:36:07 :::HCHP