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MLC Report Can’t Be Discarded For Non Examination Of Doctor Who Prepared It, Colleague Can Prove Record: Delhi High Court
Parina Katyal
6 Jan 2023 11:49 AM GMT
Upholding life imprisonment of an accused convicted for committing rape upon a 2 year old minor girl, the Delhi High Court has ruled that MLC (medico-legal case) report can be relied upon by the courts even when the doctor who prepared it is not examined and the record is proved by any other doctor of the hospital. The division bench of Justice Siddharth Mridul and Justice Rajnish Bhatnagar...
Upholding life imprisonment of an accused convicted for committing rape upon a 2 year old minor girl, the Delhi High Court has ruled that MLC (medico-legal case) report can be relied upon by the courts even when the doctor who prepared it is not examined and the record is proved by any other doctor of the hospital.
The division bench of Justice Siddharth Mridul and Justice Rajnish Bhatnagar said that proving of MLC report by a colleague doctor or an administrative staff of the hospital, who identify handwriting and signatures of the doctor who had examined the patient, is sufficient and good proof. It added that such a report cannot be doubted.
“It cannot be expected from the hospital to keep track of the doctor after he leaves the hospital. Neither the doctor is expected to keep the hospital informed about his /her whereabouts. Merely because the doctor who prepared the MLC is not personally examined, the MLC cannot be disbelieved,” the bench added.
The court made the observations in its judgement on the appeal filed by Kamlesh, against the conviction and the sentencing order passed by the Special Court under POCSO Act. His counsel argued before the high court that that since the doctor who had examined the victim and prepared her MLC report was not examined, the evidence cannot be relied upon.
The State contended that even if the doctor who had prepared the MLC report has not been examined, the same cannot be discarded. It further argued that as per the MLC report, the victim’s hymen was not ruptured. However, to constitute the offence of rape, the rupture of hymen is not necessary, the State submitted.
Rejecting the contentions made by the appellant, the court noted that the doctor who prepared the MLC report had left the hospital and his whereabouts were not known to the hospital. The MLC was proved by a colleague doctor who identified the handwriting and signatures of the doctor who had examined the victim and prepared her MLC.
"The MLC is an authenticated record of injuries which is prepared in regular course of business by the doctor and can be relied upon by the Courts, even when the doctor who prepared the MLC is not examined in the Court and record is proved by any of the other doctor," the Court ruled.
The court also observed there is no allegation of tampering with the MLC and no bias has been alleged against the hospital authority or the IO by the appellant.
Referring to the Medical Jurisprudence and Toxicology (Twenty First Edition) by Modi and various precedents, the Court noted that it has been held that rupture of hymen is not necessary to constitute the offence of rape.
The appellant had contended before the court that the delay in lodging of the FIR by the victim’s mother raised doubts over the veracity of her evidence.
To this, the court said every delay in registration of FIR is not fatal to the case of the prosecution. It added that if the delay is sufficiently explained, the case of the prosecution would not suffer.
It further noted that the trial court had concluded that the delay was satisfactorily explained by the mother of the victim as well as the prosecution.
The appellant had further argued that the testimony of the victim’s mother was not reliable since she had made several contradictory statements.
The bench said that to determine the trustworthiness of a witness, the evidence, including the examination-in-chief and the cross-examination, has to be read in full.
While holding that even the testimony of a hostile witness cannot be discarded in toto, the Court said it has enough power to sift the chaff from the grain.
“In the instant case, one cannot ignore the fact that PW-2 is the mother of a 2 year old minor child who has been violated by the appellant who was seen by PW-2 holding the victim child in his lap and then apologizing for his wrong act. Therefore, in such a situation the mother of the minor child would be tormented and traumatized and then some contradictions are bound to occur in her testimony," the court said.
The bench further noted that the trial court had placed complete reliance on the testimony of the victim’s mother, holding that the appellant had failed to shatter the veracity of her testimony.
"In view of the discussions hereinabove, we find no reason to not rely upon the testimony of PW 2 mother of the victim and the reliance placed by the Ld. Trial Court on the testimony of PW 2 while arriving at a conclusion that the appellant has committed the offence against the minor child as narrated by PW-2 cannot be faulted with," the division bench said.
The court also took note that the age of the victim and the identity of the appellant were not in dispute, observing that the appellant had been identified by various prosecution witnesses.
“Even in his statement U/s 313 Cr.P.C, the appellant has not disputed his identity and also the fact that the mother of the victim has left the victim with him while she was going out," the court said.
While holding that the appellant had failed to prove that the testimonies of the prosecution witnesses were false and unreliable, the court concluded that the commission of the offence by the appellant was successfully proved.
“Therefore, we find no infirmity in the impugned judgment by virtue of which the appellant has been convicted U/s 376 IPC”, the Court said.
While court upheld the conviction, the court granted him the benefit of set-off under Section 428 Cr.P.C., for the period of detention he had already undergone. The court ruled that the benefit of set-off under Section 428 Cr.P.C. can be given even to a life convict.
Case Title: Kamlesh v. State
Citation: 2023 LiveLaw (Del) 10
Counsel for the Appellant: Mr. S.K. Sethi, Advocate
Counsel for the Respondent: Mr. Ashish Dutta, APP for the State
