S.32 Evidence Act | Post-Mortem Certificate Issued By Doctor Who Isn't Examined Due To Death/Unavailability Is Admissible: Telangana HC

The Telangana High Court has said that when a doctor who has conducted and filed a post-mortem certificate/report cannot be examined due to unavailability or death, the report given by him is to be treated as relevant and admissible in view of Section 32 of the Indian Evidence Act.

The court further said that it was well established that when the doctor who conducted autopsy was not available and some other doctor who knows and identifies the handwriting and signature of the doctor who conducted autopsy, then it can be said that the postmortem examination is proved.

Justice EV Venugopal, noted that in normal course, if the post-mortem conducting doctor is not examined his report becomes corroborative evidence. The court however pointed out,  that the exception to this rule is section 32.

"The normal rule is that a post-mortem certificate being a document containing the previous statement of a Doctor who examined the dead body can be used only to corroborate the statement under Section 147 or to contradict the statement under Section 145 or to refresh his memory under Section 159 of the Evidence Act. But the provision of Section 32 of the Evidence Act is an exception to this rule. If the Doctor who held autopsy is dead or is not available for examination, the certificate issued by him is relevant and admissible under Section 32(2) of the Evidence Act which reads...Section 32 of the Evidence Act provides that when a statement, written or verbal, is made by a person in the discharge of professional duty whose attendance cannot be procured without an amount of delay, the same is relevant and admissible in evidence. Besides, since the carbon copy was made by one uniform process the same was primary evidence within the meaning of Explanation 2 to Section 62 of the Evidence Act. Therefore, the medical certificate was clearly admissible in evidence". 

It thereafter said, "In that view of the matter, I am of the considered view that non-examination of the doctor who conducted autopsy over the deceased is not at all fatal to the case of the prosecution and that the postmortem examination report was proved through the evidence of P.W.16.(subsequent doctor)".

Background

The court was hearing a plea against an order passed by the trial court convicting the petitioner under section 304-part II (culpable homicide not amounting to murder) and sentencing him to 10 years imprisonment. 

In 2002 the petitioner while crossing the field of the de-facto complainant with his bullock cart, got into a fight with the complainants, as the latter had denied the petitioner, entry into their field for crossing. 

The complainants alleged that the petitioner being agitated by this, came back with his family and attacked the family of the de facto complainant woman. When the husband of the complainant came to help her, he was attacked too, leading to serious injuries pursuant to which he died. 

A complaint was lodged and the petitioner along with accused no. 2 and 3 (A2  and A3) were arrested. A2 and A3 were acquitted of the charge under 304 II. However the petitioner was convicted. Against this the petitioner moved an appeal before the appellate court which upheld the trial court's order against the petitioner. The petitioner thereafter moved the high court. 

The petitioner's counsel contended that there were several flaws in the case of the prosecution. It was contended that the postmortem report could not be relied upon because the doctor who conducted the postmortem was not examined. Only interested witnesses were examined and eye witnesses have not supported the case of the prosecution. It was also contended that the deceased had injured himself 15 days prior to the alleged incident and it was possible that his death occur due to the prior in injury and not due to the one inflicted by the accused herein.

Findings

On the petitioner's contention that the doctor who conducted postmortem examination was not examined and hence the postmortem examination report was not proved the court said, 

"...contention also holds no ground since it is well established that when the doctor who conducted autopsy over the deceased was not available and some other doctor who knows and identifies the handwriting and signature of the doctor, who conducted autopsy over the dead body, it can be safely concluded that the postmortem examination is proved. No doubt, it was the duty of the prosecution to examine the autopsy surgeon and to prove the postmortem report since it is a case of death. A postmortem report cannot be treated as a report of Government Scientific expert as contemplated in Section 293 of Cr.P.C. However, for fair ends of justice I have a glimpse to the postmortem report which is already on record and I find nothing to observe that had the autopsy surgeon was examined the case would have been otherwise than that what is concluded by the Courts below". 

Pointing to section 32 of the Indian evidence Act the bench clarified that when the doctor who conducted the postmortem is unavailable or dead and the same is dealing the trial, the postmortem certificate can be considered as primary evidence.

The court upheld the conviction noting that prosecution has proved the guilt of the petitioner for the offence punishable under Section 304-II of IPC beyond all reasonable doubt. However in view of the fact that the petitioner has been roaming the courts since 2002 and had already undergone incarceration for some days, the court reduced the sentence to the period already undergone by the petitioner while enhancing the fine amount to Rs.2,00,000 to be paid within three months. 

"In default, the petitioner shall suffer simple imprisonment for one year," the court said. 

Case title: Jillela, Kotha Venkat Reddy vs. State of AP

Counsel for petitioner: L Harish 

Counsel for respondents: PP

Click Here To Read/Download Order