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37. As far as post mortem report Exhibit-29 is concerned, it has to be noted that initially even the original post mortem report was not produced before the Court along with the police file. It is somewhat strange that the medical officer who conducted the post mortem was also not called before the Court as a witness much less nobody with the record of the hospital was produced who could one way or the other prove the contents of the post mortem report. The post mortem report has been exhibited as Exhibit-29 probably on the basis that the counsel who was provided to the accused by legal aid, firstly recorded following note, which is undated "I am not admitting any of the documents at this stage".

mortem report. In view of the subsequent notings by advocates representing accused, the Court will have to proceed on the basis that the panchanama was admitted and so was the case of the post mortem notes. In other words, the post mortem report itself was not proved by any witness. The post mortem report which is alleged to have been prepared on 17th January, 2002 by RMO of the G.T. Hospital states that the body was brought to the hospital on 16th January, 2002 at 8.15 p.m. while the body was alleged to have been recovered vide Panchanama Exhibit-27. The photo copy of the post mortem report was exhibited as Exhibit-29. It shows the name as "unknown". Thereafter, it has been recorded as Mohan Chiku Kharwa. There were no injuries on the body of the deceased and the body was highly decomposed. The stomach of the deceased is reported to contain fluid about 500 ml. and probable cause of death is recorded as under:-

39. The post mortem notes, in view of the consent and admission recorded by the learned Counsel could be read in evidence but still the Court would have to examine its evidentiary value and impact on the case of the prosecution. In the case of Laxman v. State of Karnataka, 1997(1) Crimes 388 (Kant-DB), where the doctor who conducted the post-mortem report was not available, another doctor who was acquainted with the handwriting and signature of the author of the post-mortem report was examined. But the court took the view that the provisions of Section 294 could not be applied to the facts of the case. Even if a post-mortem report has been exhibited the report itself cannot be used as substantive piece of evidence until and unless the doctor concerned has been examined in Court. This view was taken by the Allahabad High Court in Jagdeo Singh v. State, 1979 CrLJ 236.

21/A (objected to). I have seen Dr U.C. Gupta writing and signing.

Cross-examination :

Original copy is not on record.

The original copy is sent to SSP, Ghaziabad. Second copy is sent to PS and third copy is maintained in the record."

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 (2) 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 order 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 clauses of Section 65 it was not admissible on this score also."