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Shaikh Farid Hussainsab v/s State of Maharashtra

    Criminal Appeal No. 970 of 1979

    Decided On, 09 February 1981

    At, High Court of Judicature at Bombay


    For the Petitioner: C.A. Phadkar with Y.J. Master, Advocate. For the Respondent: J.A. Barday, P.P.,

Judgment Text


This reference to the Full Bench raises a question of some importance as to the true interpretation of section 294 of the Code of Criminal Procedure of 1973. The appellant is convicted for an offence of murder under section 302, I.P.C. The trial Court relied, amongst others, on the post-mortem notes. The doctor, who held the post-mortem, and prepared the notes, was not examined at the trial. The defence lawyer had earlier indicated that he was not disputing the genuineness thereof in response to a query under sub-section (1) of section 294 of the Code. The trial Judge dispensed with its formal proof and received the report in evidence. In the course of the hearing of the appeal before the Division Bench, the learned defence Advocate contended that the report cannot be relied on without the evidence of the doctor and section 294 is not intended to dispense with proofs of such documents. Reliance was placed on the decision of another Division Bench of this Court in the case of (Ganpat Raoji v. State of Maharashtra)1, 1980 Mh.L.J. 60 : 1980 Bom.C.R. 246, in support of this contention. Reliance was also placed on two other judgments of the Gujarat and Allahabad High Courts relied on by the Division Bench in Ganpat Raoji's case.

2. The learned Judges of the Division Bench could not agree with the ratio of Ganpat Raoji's case (supra). The Division Bench indicated its reasons for the dissent and referred the point for decision to the Full Bench.

3. Mr. Phadkar, the learned Advocate appearing for the appellant, raised three points in support of this contention of the defence : (1) Indicating no dispute with the genuineness of the documents means at the most admission of the signature of the author and not the truthfulness of the contents. (2) Authority to "read in evidence" co

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ntemplated under sub-section (3) of section 294 does not amount to authority to use the same in evidence at the trial and (3) that without the doctor's substantive evidence the post-mortem prepared by the doctor cannot be used in evidence, it having no evidentiary value.

4. Section 294 of the Code reads as follows :

"(1) 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 fro the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.

(2) The list of documents shall be in such forms as may be prescribed by the State Government.

(3) 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 :

Provided that the Court may, in its discretion, require such signature to be proved."

5. It will be convenient first to analyse the section without reference to the case law. As the marginal note indicates, the section is intended to dispense with the "formal proof" of certain documents. Sub-section (3) providing for such dispensation is the main provision, sub-sections (1) and (2) being merely procedural. Such dispensing of the proof is restricted only to, such documents of which genuineness is not disputed when called upon to do so under sub-section (1). Under the Evidence Act evidence can be oral or documentary. Even the original primary documents cannot be read in evidence merely because the same are relevant and produced, unless the authenticity thereof is established. Mode of proof for establishing such authenticity is prescribed under sections 67 to 71 of the Evidence Act. These can be used in evidence for adjudication of points in dispute only after they are proved to be authentic and genuine by this mode.

6. In civil cases mode of proof can be waived by the person against whom it is sought to be used. Admission thereof or failure to raise objection to their tendering in evidence amounts to such waiver. No such waiver from the accused was permissible in criminal cases till the enactment of the present Code of Criminal Procedure in 1973. The accused was supposed to be a silent spectator at the trial being under no obligation to open his mouth till the occasion to record his statement under section 342 (present section 313) of the Code arose. Even then he was not bound to answer and explain the circumstances put to him as being appearing against him. In the case of (Chainchal Singh v. Emperor)2, A.I.R. 1946 P.C. 1, it was held by the Privy Council that the accused was not competent to waive his right and the obligation of the prosecution to prove the documents on which his right and the obligation of the prosecution to prove the documents on which the prosecution relied. Resultantly, the prosecution was driven to examine witnesses even when the accused was not interested in challenging the facts sought to be proved through them. The inconvenience and the delay was avoidable.

7. Section 294 of the Code is introduced to dispense with this avoidable waste of time and faciliate removal of such obstruction in the speedy trial. The accused is now enabled to waive the said right and save the time. This is a new provision having no corresponding provision in the repealed Code of Criminal Procedure. It requires the prosecutor or the accused, as the case may be, to admit or deny the genuineness of the documents sought to be relied against him at the outset in writing. On his admitting or indicating no dispute as to the genuineness, the Court is authorised to dispense with its formal proof thereof. In fact after indication of not dispute as to the genuineness, proof of documents is reduced to a sheer empty formality. The section is obviously aimed at undoing the judicial view by legislative process.

8. The proceeding section 293 of the Code also dispenses with the proof of certain documents. It corresponds with section 510 of the repealed Code of Criminal Procedure. It enumerates the category of documents proof of which is not necessary unless the Court itself thinks it necessary. Section 294 makes dispensation of formal proof dependent on the accused or the prosecutor, not disputing the genuineness of the documents sought to be used against them. Such contemplated dispensation is not restricted to any class on category of documents as under section 293, in which ordinarily authenticity is dependent more on the mechanical process involved than on the knowledge, observation or the skill of the author, rendering oral evidence just formal. Not it is made dependent on the relative importance of the document or probative value thereof. The documents being primary or secondary or substantive or corroborative, is not relevant for attracting section 294 of the Code. Not disputing its genuineness is the only solitary test therefore.

9. Now the post-mortem report is also a document as any other document. Primary evidence of such a document is the report itself. It is a contemporaneous record prepared in the prescribed form, of what the doctor has noticed in the course of post-mortem of the dead body, while investigating the cause of the death. It being relevant, it can be proved by producing the same. But production is only a step towards proof of it. It can be received in evidence only on the establishment of its authenticity by the mode of its proof as provided under sections 67 to 71 of the Evidence Act. Section 294(1) of the Code enables the accused also, to waive this mode of proof by admitting it or raising no dispute as to its genuineness when called upon do under sub-section (1). Sub-section (3) enables the Court to read it in evidence without requiring the same to be proved in accordance with the Evidence Act. There is nothing in section 294 to justify exclusion of it, from the purview of "documents" covered thereby. The mode of proof of it also is liable to be waived as to any other document.

10. The contention of Mr. Phadkar that the word "genuineness" in sub-section (3) of section 294 of the Code contemplates only genuineness of the signature and not that of the document or contents thereof is devoid of any substance. Such a contention ignores the complication of the proof by the made presented under sections 67 to 71 of the Evidence Act. Section 67 of the Evidence Act is aimed at ensuring the authenticity of the document. The word "without proof of the signature...." in sub-section (3) of section 294 of the Code are obviously intended to dispense with such proof without the compliance of which ordinarily the documents cannot be relied on as authentic genuine.

11. Mr. Phadkar then contends that all that section 294 of the Code permits, with regard to a document of which the proof of signature is dispensed with, is, "to read" such document "in evidence" at the trial. Reading in evidence, to contends Mr. Phadkar, is not the same thing as receiving in evidence or giving in evidence or using in evidence, for reliance as contemplated in several other sections of the Code. Mr. Phadkar, therefore, contends that the authority to read does not amount to receive in evidence and rely thereon without the formal proof thereof. This contention of Mr. Phadkar also appears to us to be devoid of any merit. It is difficult to conceive of "using any documents in evidence" without the implied authority to read and avail of the contents thereof. It is equally difficult to conceive of any situation where a document can be read in evidence without using it and relying on it for adjudicating the points arising at the trial. It is not possible to conceive what could be the legislative intent to authorise reading without using it for such purpose of the trial. It is clear to us that the words "reading", "using", "receiving", "giving" or "admitting" in evidence cannot but have the same meaning and import and the words can only mean that a document can be used at the trial for the disposal of the case in the same manner as any other document, proof of which is not dispensed with and is proved in accordance with the provisions of the Evidence Act. We are unable to see any principle in support of such contention of Mr. Phadkar and he has not been able to draw our attention to any authority to support such contention.

12. Mr. Phadkar then contends that without the substantive evidence of the doctor a corroborative piece of evidence such as that of the post-mortem report prepared by him earlier, cannot be read in evidence. Broadly speaking, this statement of law by itself is un-exceptional. This is precisely what appears to have mainly weighed with the learned Judges deciding Ganpat Raoji's case, and the cases of two other High Courts relied on in Ganpat Raoji's case holding section 294 of the Code to be inapplicable to post-mortem reports, but restricting its scope to the documents admitting only of formal proof.

13. This statement of law, however, combines two different rules of evidence having different implications. It is one thing to speak of any piece of evidence as substantive or corroborative in terms of its probative value and quite different thing to speak of its being no evidence for want of proof of its authenticity. These are two different rules of evidence having different incidences. The evidence of post-mortem notes according to one rule can have merely corroborative value in relation to the substantive evidence of its author, the doctor, at the trial. The doctor's evidence gets strength from it because it is contemporaneously made by him at the time of performing the post-mortem. It contains the details of injuries noticed by him and his opinion as to the cause of death. Post-mortem notes thus are in the nature of previous statement, within its conception under section 157 of the Evidence Act. The fact, however, that it lacks more details or is merely corroborative does not make it any the less relevant piece of evidence. These factors may have a bearing on its probative value. The adjectives "corroborative" and "substantive" are relative depending on the context and set of facts in which these words are used. Ordinarily, the entire medical evidence i.e. the doctor's oral evidence and his reports, happens to be corroborative as against the substantive eye-witness account of any assault. Thus, even the doctor's oral evidence itself is corroborative in nature. Authenticity of a document which is determinative of its reception in evidence is altogether a different factor unconnected with its probative value and its being corroborative or substantive.

14. The probative value of any documentary evidence also has no direct relevance to reception thereof in evidence. As seen earlier, no document with all its probative value can be received in evidence unless its authenticity is first established by the mode of proof prescribed under sections 67 to 71 of the Evidence Act. The mode of proof, however, is liable to be waived in civil cases. Now, section 294 is purposefully introduced in the present Code to facilitate such waiver even in criminal cases. It has the virtual effect of making sections 67 to 71 of the Evidence Act inapplicable. The author's evidence thus is now dispensable thereunder. Report becomes both relevant and authentic evidence of its contents without the proof of its authenticity by the author or anybody else by force of section 294 on its conditions being complied with. Section 510 of the repealed Code (corresponding to section 293 of the present Code) already contemplates dispensation of the proof of some other documents authenticity of which depends not so much on oral evidence of the doctor as on the efficacy of the mechanical process through which the concerned data is collected. Section 294 of the Code makes the same rule applicable when the authenticity of the document is not disputed. The documents covered by both these sections stand on para and are receivable in evidence without the doctor's more. The post-mortem report also is receivable in evidence without the doctor's evidence and can still furnish corroborative evidence to support other evidence in the case. With respect to the learned Judges, disregarding the different identity of these two different rules and mixing them together has led to their wrong conclusion.

15. Ganpat Raoji's case as also the Gujarat High Court case were cases in which failure to examine the doctor was found to have resulted in a miscarriage of justice. In some such cases location of injuries, extent of the depth and width and the details as to the nature thereof and possibility of their being caused differently from the one sought to be established, are all very important factors and the doctor's answers to some pertinent questions in evidence can make a difference to the result of the case. But this cannot be true of each and every case. Whether the doctor's evidence is necessary or not depends on facts and facts of each case, the prosecutor, the accused and his lawyer being the best Judge to decide it as also the points on which each one of them should concentrate their attack. Their reaction to the query under sub-section (1) ordinarily should be decisive. Raising no dispute to the genuineness of any document implies their considered decision of further details being irrelevant. The Court has ordinarily to accept this decision and refrain from entering into the arena itself unless miscarriage of justice is apprehended on demonstrable grounds. The section also invests the courts with a discretion to examine the doctor, or any such witness in that case. The section itself thus furnishes in built protections to the defence or the prosecutor against possible lapses. It was open to the Court in its such discretion to examine the doctor or any other witness when it apprehended miscarriage of justice. Mere such apprehension cannot justify interpreting the section differently and hold it inapplicable to post-mortem reports in the face of its plain language indicating to the contrary.

16. It was faintly suggested that (1) section 294 of the Code aims at dispensing with proof only of such documents which require formal proof, (2) examination of the doctor of the documents is necessary to prove only certain documents and not every document and (3) that relevancy of only certain documents depends on their genuineness. A few observations in Ganpat Raoji's case in paragraph 33 (page 64) were relied on in support of these contentions. We are not sure if the learned Judges could have intended to say so. We have however, no hesitation in holding that the contentions so raised are untenable. Section 294 of the Code dispenses proof of every document when it becomes formal on its genuineness not being disputed. It does not contemplate existence of any class of documents as such, requiring formal proof. It is section 293, however, which does deal with a certain category of documents which can be received in evidence without proof. The language of the two sections is distinct enough to admit of any mistake. Secondly, every document is required to be proved by its doctor unless he cannot be made available for evidence due to unavoidable reasons. Thirdly genuineness of any document is a condition precedent for its relevancy. It is difficult to conceive of any relevant document which can be relied on, even if not genuine.

17. In Ganpat Raoji's case, reference is made to two other judgments. They were decided before the enforcement of the present Code, when any provision corresponding to section 294 of the Code was not in existence. The accused could not waive the proof by admitting or not disputing the genuineness of any document. Mode of proof prescribed under the Evidence Act could not be then dispensed with. These judgments and others to which Mr. Phadkar wanted to draw our attention cannot be said to be good law any more.

18. We accordingly hold that sub-section (3) of section 294 of the Code covers post-mortem notes and every other document of which genuineness is not disputed. Thus such documents can be read in evidence as genuine without the formal proof. In our view, Ganpat Raoji's case is not correctly decided.

19. The Criminal Appeal will now be sent back to the Division Bench for disposal in accordance with law