Postmortem Report By Itself Not A Substantive Evidence, Can't Discharge Murder Accused Only Based On It : Supreme Court

The Supreme Court observed that a trial court could not discharge the accused from murder charges merely relying on Post mortem report indicating cause of death as "cardio respiratory failure"."The post mortem report, by itself, does not constitute substantive evidence. The doctor's statement in court is alone the substantive evidence", the bench comprising Justices AM Khanwilkar, Abhay S Oka and JB Pardiwala observed.The Trial Court discharged the accused from the offence of murder on the ground that the cause of death of the deceased as assigned in the post mortem report being the "cardio respiratory failure", the same cannot be said to be having any nexus with the alleged assault that was laid on the deceased. The Jammu and Kashmir High Court dismissed revision petition filed by the original complainant and upheld this order. Thereafter, the trial court proceeded to frame charge against the accused for the offence of culpable homicide punishable under Section 304 IPC.In the appeal filed by the complainant, the Apex Court considered the position of law on the scope of Sections 227 and 228 CrPC. Referring to various earlier decisions, the bench observed:"The trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. Undoubtedly, apart from the material that is placed before the Court by the prosecution in the shape of final report in terms of Section 173 of CrPC, the Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the charge laid before it by the prosecution."The bench observed that the question whether the "cardio respiratory failure" had any nexus with the incident in question would have to be determined on the basis of the oral evidence of the eye witnesses as well as the medical officer concerned i.e. the expert witness who may be examined by the Prosecution as one of its witnesses."The post mortem report of the doctor is his previous statement based on his examination of the dead body. It is not substantive evidence. The doctor's statement in court is alone the substantive evidence. The post mortem report can be used only to corroborate his statement under Section 157, or to refresh his memory under Section 159, or to contradict his statement in the witness box under Section 145 of the Evidence Act, 1872. A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the Court.", the bench said.While allowing the appeal, the bench further observed:Once the trial court decides to discharge an accused person from the offence punishable under Section 302 of the IPC and proceeds to frame the lesser charge for the offence punishable under Section 304 Part II of the IPC, the prosecution thereafter would not be in a position to lead any evidence beyond the charge as framed. To put it otherwise, the prosecution will be thereafter compelled to proceed as if it has now to establish only the case of culpable homicide and not murder. On the other hand, even if the trial court proceeds to frame charge under Section 302 IPC in accordance with the case put up by the prosecution still it would be open for the accused to persuade the Court at the end of the trial that the case falls only within the ambit of culpable homicide punishable under Section 304 of IPC. In such...

Postmortem Report By Itself Not A Substantive Evidence, Can't Discharge Murder Accused Only Based On It : Supreme Court

Ashok KM

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