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.......................................................................................................................................................................................But unfortunately, from the evidence of P.W.2 alone, I am unable to hold that there was no mechanical failure in the bus. It is true that the Motor Vehicle Inspector's report Ex.P8 has been marked in this case but the learned counsel appearing for the revision petitioner Mr.Gopinath, contended that this report of the Motor Vehicle Inspector has not been proved in the manner required by law. The author of this report, namely, the Motor Vehicles Inspector was not examined but his report has been marked through the Investigating Officer P.W.4, who has simply stated that he received the information of the Motor Vehicles Inspector. The learned counsel Mr.Gopinath argued that under Section 294 Code of Criminal Procedure, the formal proof of certain documents need not be by examining the author of the document but the prosecution ought to have filed a list of such documents calling upon the accused either to admit or deny the genuineness of such documents and only when the accused has not denied the genuineness and admitted the documents, the same could have been received in evidence without examining the witness connected with the document but in this case as this was not followed, Ex.P8 is inadmissible in evidence and the contents therein are not proved and therefore, it has to b taken and there is no evidence before the Court to hold that there was no mechanical failure in the bus. He also relies upon a decision of the Full Bench of the Allahabad High Court in Saddiq vs. State (1981 Criminal Law Journal 379) wherein the Allahabad High Court has held that a document to be received without proof of the documents, shall be mentioned in the list and the opposite party or his pleader shall be called upon to admit or deny he genuineness of such procedure and only by such process, the document can be received in evidence. In this case, the investigating officer, who is not connected with the contents of this document, has simply produced it and the same has been received though it was not objected by the accused."

(ii) 2001 (2) MWN (Cr.) 260 (Arumugam vs. State by Sub Inspector of Police, Uttukkuli Police Station, Erode District).

"3. The learned counsel appearing for the petitioner submits that the prosecution did not succeed in establishing the cause of death, since the prosecution did not examine the doctor, who conducted the post-mortem on the body of Palanisamy, but marked the post-mortem certificate only through the investigating officer and therefore, Ex.P7 cannot be looked into as the contents are not proved. Similarly, the contents of Ex.P6, the report alleged to have been given by the Motor Vehicles Inspector were also not proved and the said document was also marked only through the investigating officer. The petitioner raised an objection at the trial state that these documents could not be marked through the investigating officer, but they have to be marked only through the persons, who prepared these documents. I see every force in the said contention. Section 294 of the Code of Criminal Procedure contemplates that where any document is filed before any court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any shall be called upon to admit or deny the genuineness of each such document. Sub Section (2) of Section 294 Cr.P.C states that the list of documents shall be in such form as may be prescribed by the State government and Sub Section (3) of Section 294 Cr.P.C contemplates that where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this code without proof of the signature of the person to whom it purports to be signed. The proviso to the said Section states that the court may, in its discretion, requires such signature to be proved. Section 294 Cr.P.C also will not help the prosecution in this case for it to contend that no formal proof is required. When the above document was marked without examining the author of the document, it was objected by the petitioner and therefore, it must be said that the documents were marked, without the consent of the petitioner. Secondly, even if a document has been marked under Section 294 Cr.P.C it must be in accordance with the procedure contemplated under the said section, viz., that the list of documents in the said form prescribed by the State Government. It is to be remembered at this stage that the Government of Tamil Nadu passed a Government Order in G.O.Ms.No.258 (Courts-V) dated 8.2.1983, prescribing the proforma stating that the documents can be marked only in the form mentioned in the Government Order. This is an admitted case where the prosecution did not mark those documents in the said form and also there was objection on the side of the accused for marking those documents. Under similar circumstances, the learned Single Judge in a judgment rendered on 13.11.1987 in Crl.R.C.No.761 of 1984 held that marking the documents in such fashion is illegal and the court cannot look into the document as the contents of the documents are not proved by the prosecution. In this case, as the prosecution did not prove the contents of Ex.P6 and Ex.P7 and therefore, they did not prove the case of death. I am of the view that the accused is entitled for an acquittal. Accordingly, he is acquitted. The bail bond, if any executed by the petitioner, will stand cancelled. The revision is allowed."
"11. In Jagdeo Singh vs. State (1979 Cri LJ 236) a Division Bench of this Court held "it was not permissible to exhibit the post-mortem report under Section 294 Cr.P.C and even if it was done the report could not be used as substantive piece of evidence until and unless the doctor concerned was examined in Court. Documents that Section 294, Cr.P.C contemplates reading in evidence upon admission about genuineness by the opposite party are only such documents which when formally proved speak for themselves. It does not refer to any document, which even if exhibited cannot be read in evidence as substantive evidence". With great respect, we are unable to agree with the view taken by this Court in the above mentioned case. As mentioned earlier, there is no restriction placed on documents in sub-section (1) of Section 294, Cr.P.C and it applies to all documents filed by the prosecution or the accused. If the genuineness of any document filed by the prosecution or the accused under sub-section 91) of Section 294, Cr.P.C is not disputed by the opposite party sub-section (3) of Section 294, Cr.P.C is applicable and it may be read as substantive evidence. It is true that prior to the coming into force of the Code of Criminal Procedure, 1973 the post-mortem report after it was proved was not substantive evidence but only corroborated the statement of the doctor made in court and even now if the genuineness of the post-mortem report is disputed by the accused, the doctor must be examined to prove the injuries found on the body of the deceased and also the post-mortem report and the post-mortem report may only be used to corroborate or discredit his testimony which is the substantive evidence. This, however, cannot lead to the conclusion that the post-mortem report cannot be read as substantive evidence under sub-section (3) of Section 294, Cr.P.C if its genuineness is not disputed by the accused. As already mentioned, the very object of enacting Section 294 Cr.P.C would be defeated if the signature and the correctness of the contents of the post-mortem report are still required to be proved by the doctor concerned even if its genuineness is not disputed by the accused. Section 294 Cr.P.C is clear and unambiguous. It is only when the genuineness of the post-mortem report filed by the prosecution is not disputed by the accused that sub-section (3) of Section 294, Cr.P.C is applicable and the post-mortem report may be read as substantive evidence and the signature and the correctness of its contents need not be proved by the doctor concerned. We are, therefore, clearly of the opinion that if the genuineness of the post-mortem report filed by the prosecution under sub-section (1) of Section 294, Cr.P.C is not disputed by the accused, it may be read as substantive evidence under sub-sec(3) of Section 294, Cr.P.C."

(emphasis supplied) However, in this case, on the accused's side, objection was not raised at the time of marking. The core question arises as to whether, such non raising of objection could be equated to admitting the genuineness of the document, within the meaning of Section 294 (1) of Cr.P.C.

27. In the Full Bench judgment of the Allahabad high Court and Rajasthan High Court, the counsel for the accused expressly had given his consent, actually, it constituted consent under Section 294 (1) of Cr.P.C. But, in this case, there is no such express consent obtained from the learned defence Advocate or the accused and in such a case, it is not permissible to hold that mere marking of document without any objection from the accused's side would tantamount to admitting the genuineness of the document under Section 294 (1) of Cr.P.C.