JUDGMENT
1. The appellants, ten in number, were arrayed as accused before the trial Judge with the allegation that at about 6.30 p.m. on 18-8-1983 they caused the death of Dugu Ram Das Kisku by beating him with Lathi, Bhala, Farsa and Tangi. The learned trial Judge, finding the appellants guilty under Section 302 Indian Penal Code (shortly 1PC), sentenced each of them with the aid of Section 149, IPC to undergo imprisonment for life. The present appeal is against the said conviction and sentence.
2. The facts of the case are:
At about 6.30 p.m. on 18-8-1983, the deceased Dugu Ram Das Kisku was returning from his village Hatia accompanied by his brother PW. 1 Betka Kisku. When he was reaching the house of Bihar Kisku (appellant No. 7), all the appellant surrounded him and PW. 1 and attacked him with the weapons which they had in their hands. PW. 1 managed to escape but Dugu Ram Das Kisku suffered injury and died at the spot. Thereafter, the information of the incident (Ext.1) was given by PW. 1 to Godda (Mussafil) Police Station at about 9.00 a.m. on 19-8-1983 on the basis of which FIR (Ext. 2) was registered. Investigation of the crime was taken up by the PW.9, the Police Officer.
3. PW. 9 visited the scene of occurrence and prepared the seizure-lists of the articles scattered at the place of occurrence and the bloodstained sand found at the spot (Exts. 4 and 4/1) respectively. He conducted inquest and prepared inquest report (Ext. 3). The witnesses were examined at the time at the time of inquest. After inquest, the body was dispatched to the hospital with a request to the doctor to conduct autopsy.
4. On receipt of the requisition, the doctor attached to Government Hospital, Godda, conducted post mortem and he found seven injuries on the dead body. A certificate (Ext. 5) was issued by the doctor. Thereafter the investigation continued and after the completion of the investigation, final report was filed against the appellants.
5. The appellants, on being questioned under Section 313, Cr. P.C. on the incriminating circumstances appearing against them, denied all the incriminating circumstances. They did not examine any witness on their side.
6. The case of the prosecution is that the deceased Dugu Ram Das Kisku died at about 6.00 p.m. on 18-8-1983 on account of the injuries inflicted upon him by the appellants. It was, therefore, necessary for the prosecution to establish the cause of death of the deceased Dugu Ram Das Kisku.
7. According to PW. 9, after the inquest was conducted, the dead body was sent to the hospital for post mortem examination. Before the trial Court the post mortem certificate, issued by the doctor was marked as Ext. 5 through PW.
11 who was a compounder attached to the hospital. The prosecution did not examine the doctor and, therefore, the contents of the document, Ext. 5, was not proved by the prosecution through PW.
11 as he was only a compounder. In fact, in the cross-examination, PW. 11 admitted that he was not even present when the post mortem was conducted by the doctor and that he was also not present when the doctor signed the post mortem certificate. He went on to say that he had no knowledge even about the opinion expressed by the doctor in the postmortem certificate (Ext. 5) marked by him.
8. We are unable to understand as to why the prosecution did not choose to examine the doctor. It is no doubt true that in spite of the steps taken, the prosecution could not procure the attendance of the doctor who conducted autopsy over the dead body, but that could not have precluded the prosecution from examining some other doctor from the same hospital who knew the handwriting and signature of the doctor who conducted autopsy. If any other doctor had been examined who knew the signature of the doctor who conducted autopsy and if he had given evidence as to the nature of the post mortem done and the injuries found by the doctor on the dead body, then the appellants could have had an opportunity of cross-examining the said doctor to say that the injuries suffered by the deceased are not fatal in nature and even if the deceased died on account of such injuries, the accused-appellants could have taken a defence to say that the said injuries are not sufficient in the ordinary course of nature to cause the death of the deceased or that the said injuries are only likely to cause the death. The prosecution by not examining the doctor denied the opportunity to the accused-appellants as they were prevented from cross-examining the doctor. Therefore, in absence of any evidence that Dugu Ram Kisku died due to homicidal violence, we cannot find the appellants guilty of murder.
9. A perusal of Section 60 of the Evidence Act shows that in all cases wherever it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on this ground and the prosecution having not examined the doctor and not giving an opportunity to the accused to cross-examine him, cannot reply upon the evidence of PW 11 and mark Ext.5, the post mortem certificate through him. It is needless to mention that the doctor who conducted autopsy and expressed opinion in the post mortem certificate, was not examined and therefore the compounder, PW.11, is not a competent witness to speak about the cause of death; more so when he has admitted in his cross-examination that he was not present at the time of post mortem and that he also did not know about the opinion expressed by the doctor who conducted autopsy. At this stage we wish to make an useful reference to Section 293, Cr. P.C. which contemplates that any document purporting to be a report under the hand of a Government Scientific Expert to whom the Section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding, may be used as evidence in any inquiry, trial or other proceeding. Sub-section (4) of Section 293 classifies the reports of the Scientific Experts. Post-mortem report is not one of those documents which falls under subsection (4) of Section 293, Cr. P.C.
10. From the above it is clear that the prosecution could not even succeed in establishing the cause of death of Dugu Ram Das Kisku. The Court cannot draw the inference on the basis of the other evidence that the said Dugu Ram Kisku must have died on account of the injuries suffered by him, as there is no medical evidence to indicate that he deceased suffered injuries.
11. In this background, when we look at the provisions of Section 294 Cr. P.C., it could be seen that if any document is to be filed before the 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, shall be called upon to admit or deny the genuineness of each such document and that the list of documents shall be in such form as may be prescribed by the State Government. The prosecution, not having taken recourse to Section 294 and the postmortem certificate having not fallen within the ambit of Section 293, cannot examine the compounder for marking the post mortem certificate to establish the cause of death of the deceased. The prosecution, therefore, has miserably failed even to establish the cause of death of the deceased Dugu Ram Das Kisku. In the absence of any such evidence, it is not necessary to go into the other evidence of the prosecution as it could not establish the first part of the case. It is, therefore, also not necessary for this Court to go into other questions whether the appellants caused injuries which resulted in the death of the deceased.
12. We, therefore, set aside the conviction of the appellants and acquit them. The appeal stands allowed. As the appellants are already on bail, they are discharged from the liability of bail bonds.
