In every trial for manslaughter or for the offence of causing hurt to

human body, opinions of medical officers are Invited to ascertain the cause of
death, injuries, whether the injuries are anti-mortem or post-mortem, the
probable weapon used, the effect of injuries, medicines, poisons, the
consequences of wounds whether they are sufficient in the ordinary course of
nature to cause death, the duration of injuries and the probable time of death. In
such trials sometimes the plea of unsoundness of mind or minority is taken by
the accused. In trials for offences of kidnapping and rape, the question
invariably in dispute is the age of the person kidnapped or of the girl raped. In
all such cases the medical opinion is adduced to establish insanity and minority.
I n rape cases apart from showing the minority of the girl, the medical opinion is
tendered to establish the offence of rape.
The medical evidence adduced by prosecution has great corroborative
value. It proves that the injuries could have been caused in the manner alleged
and the death could have been caused by the injuries so that the prosecution
case being consistent with matters verifiable by medical science, there is no
reason why the eye-witnesses should not be believed. The use, which the
defence can make of medical evidence, is to prove by it that the Injuries could
not possibly have been caused in the manner alleged or death could not possibly
have been caused in the manner alleged by the prosecution and if it can do so, it
discredits the eyewitnesses. Their Lordships of the Supreme Court in Solanki
Chimanbhai Ukabhai v. State of Gujarat, (AIR 1983 SC 484: 1983 Cr. L. 822)
observed:-
"Ordinarily, the value of medical evidence is only
corroborative. It proves that the injuries could have been caused
in the manner alleged and nothing more. The use, which the
defence can make of the medical evidence, is to prove that the
injuries could not possibly have been caused in the manner
alleged and thereby discredit the eyewitnesses. Unless,
however, the medical evidence in its turn goes so far that it
completely rules out all possibilities whatsoever of injuries
taking place in the manner alleged by eye witnesses, the
testimony of the eye witnesses cannot be thrown out on the
Elevated to Hon’ble High Court subsequent to publication of this Article
4YFPMWLIH_MR_-RWXMXYXI_W_.SYVREP_.YP]_7ITXIQFIV_____
2
ground of alleged inconsistency between it and the medical
evidence. "
A medical witness who performs a post-mortem examination of
examination of the injuries is also witness of fact though he also gives an
opinion on certain aspects of the case. The value of a medical witness is not
merely a check upon the testimony of eyewitnesses, is also independent
testimony because it may establish certain facts quite apart from the other oral
evidence. If a person is shot at the close range, the mark of tattooing found by
the medical witness would draw that the range was small, quite apart from any
other opinion of his. Similarly, fractures of bones, depth and size of the wound
would show the nature of the weapon used. It is wrong to say that It is only
opinion evidence, It is often direct evidence of the facts found upon the victim's
person (Smt. Majindra Bala Mehra v. Sunil Chandra Roy, AIR 1960 SC 706).
The medical evidence is usually opinion evidence (Duraipandi Thevar v.
State of Tamil Nadu, AIR 1973 SC 659: 1973 Cr. L.J. 602). The medical
opinion by itself, however, does not prove or disprove the prosecution case, it is
merely of advisory character. (Stephen Seneviratne v. Kind, AIR 1936 P.C. 289
at p. 298. 299 : (1936) 37 Cr.L.J. 963 Anant Chintaman Lagu v. State of
Bombay, AIR 1960 C 500 at p. 523: 1960 Cr.L.J. 682). In Mayur v. State of
Gujarat. AIR 1983 SC 5: 1982 Cr.L.J. 1972), their Lordships of the Supreme
Court observed:
"Even where a doctor has deposed in Court, his evidence has
got to be appreciated like the evidence of any other witness and
there is no irrebuttable presumption that a doctor is always a
witness of truth "
In an another case Awadhesh v. State of M.P. (AIR 1988 SC 1158: 1988
Cr.LJ. 1154 (Para 10) again their Lordships of the Supreme Court observed :
“Medical expert’s opinion is not always final and binding.”
In an appropriate case on a consideration of the nature of the injuries and
other relevant evidence, the Court can come to its own conclusion, if the
medical evidence is deficient. (Brij Bhukhan v. State of U.P., AIR 1957 SC 474:
1957 Cr.L.J. 591. Where the opinion of a medical witness is contradicted by
another medical witness both of whom are equally competent to form an
opinion, the court should normally accept the evidence of the medical witness
whose evidence is corroborated by direct evidence. (Piara Singh v. State of
Punjab, AIR 1977 SC 2274: 1977 Cr.L.J. 1941), and whose testimony accords
with the prosecution version (Makhan v. State of Gujarat, AIR 1971 SC 1797:
1971 Cr.L.J. 1310)
Where there is a glaring inconsistency between the direct evidence and
the medical evidence in respect of the entire prosecution case, that is a manifest
3
defect in the prosecution case. (Piara Singh v. State of Punjab, AIR 1977 SC
2274: 1977 Cr. L.J. 1941). In the instant case the prosecution evidence showed
at three separate blows were given to the deceased. The medical officer who
informed the post-mortem examination found only one wound and noted the
nature and dimensions of the wound. He opined that the wound found by him
could not be the result of two simultaneous blows. It was found that in the
ordinary course of human events and experience also, it was extremely
improbable, if not altogether impossible that three blows simultaneously given
by three different persons from different directions with sharp edged weapons
would land with such precision and exactitude so as to cause a single wound of
such a clear cut margins and such dimensions and other characteristics as those
of the external wound found by medical officer on the head of the deceased.
The Supreme Court held that the version of the prosecution witnesses with
regard to this vital fact was inherently improbable and intrinsically incredible.
The ocular account of the occurrence was falsified by the medical evidence. The
accused were acquitted. (Purshottom v. State of M.P., AIR 1980 SC 1873: 1980
Cr. L.J. 1298: 1980 Cr. L.R. (SC) 668.
If direct evidence of the witnesses to the occurrence is satisfactory and
reliable, it cannot be rejected on hypothetical medical evidence. (Solanki
Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484: 1983 Cr. L.J. 822:
(1983) 1 Crimes 625 (SC); Punjab Singh v. State of Haryana. AIR 1984 SC
1233: 1984 Cr. L.J. 921: 1984 (1) Crimes 859; see also Arjun v. State of
Rajasthan, 1995 Cr. L.J. 410 (SC): AIR 1995 SC 2507).
Ordinarily when a witness says that such and such person assaulted the
victim with a spear, then it is to be understood that the spear was used to pierce
or puncture the body of the victim. (Mayappa Dhondanna Padeade v. State of
Maharashtra, 1961 SCC (Cri.) 790: AIR 1981 SC 173) Hallu v. State of MP,
AIR 1974 SC 1936: 1974 Cr. L.J. 1385). When witnesses depose only about the
use of weapon, such as sword, spade or Gandasi, normal presumption is that the
sharp side of the weapon was deployed. But when the witness testifies that the
blunt side of the weapon was used, there would be no question of assuming that
sharp side was used. In the instant case, the accused was alleged to have
assaulted with Gandasi, in post-mortem examination, an abrasion was found.
Normally the resultant injury ought to have been incised wound. But the
prosecution witness deposed that the accused used the blunt side of the Gandasi.
The prosecution version was believed and the accused was convicted on the
charge of murder (vide Gurmej Singh v. State of Punjab, AIR 1992 SC 214).
It has been repeatedly held by the Supreme Court that whenever it is
intended to place reliance on a particular view taken by authors of book of
Medical-jurisprudence, the said view must be put to the doctor to assess how far
the view taken by the experts apply to the facts of the particular case. (Kusa v.
State of Orissa, AIR 1980 SC 559; 1980 Cr.L.J. 408, Bhagwandas v. State of
4
Rajasthan, AIR 1957 SC 589; 1957 Cr.L.J. 889, Sunder Lal v. State of M.P.,
AIR 1954 SC 28, 1954 Cr.L.J. 257, Pratap Misra v. State of Orissa, AIR 1977
SC 1307: 1977 Cr.L.J. 817). Exceptional cases referred to in the textbooks of
Medical Jurisprudence cannot be relied against positive and clear evidence of
the case before the Court. (Baldev Raj v. Smt. Urmila Kumari Miglani, AIR
1979 SC 879: 1979 SCC (Cri) 875).
Where conflicting views have been expressed in different books on
Medical Jurisprudence, the conflict can be resolved by preferring the more
specialised book on the subject. (Mahendra Manilal Nanavati v. Sushila
Mahendra Nanavati, AIR 1965 SC 364 at p. 380).
The Court in appraisal of medical evidence has power to refer to articles,
Journals and books by authors acquainted with such matters (Mamjee Pandey v.
State of Bihar, 1989 Cr.L.J. (NOC) 186 (Pat.)(OB), (AIR 1978 Pat. 172 (FB)
followed) .:
If the evidence of the witness for the prosecution is totally inconsistent
with the medical evidence, this is a most fundamental defect in the prosecution
case and unless reasonably explained, it is sufficient to discredit the entire case.
(Ram Narain v. State of Punjab. AIR 1975 SC 1727: 1975 Cr.L.J. 1500: 1975
SCC (Cri) 571; Amar Singh v. State of Punjab. AIR 1987 SC 826: (1987) 1
SCC 679: 1987 Cr.L.J. 706). Where the prosecution witness stated that all the
accused persons were armed with deadly weapons viz. Sua Barchi. Kulhari
(axe), Dang (Cudgel) and Kirpan, and gave repeated blows with their respective
weapons to the deceased and many of the blows fell on the ribs, and abdomen of
the deceased, but in the post-mortem examination no injury was found on the
ribs and abdomen of the deceased, not a single incised wound was found on the
body of the deceased, and only abrasions, confusions and fractures were found,
it was held that if the oral evidence were to be accepted there would be incised
wounds all over the body of the deceased. Thus, there was apparent irreconcible
inconsistency between the oral and the medical evidence. The Supreme Court
acquitted all the accused persons charged for murder. (Amar Singh v. State of
Punjab, AIR 1987 SC 826: 1987 Cr.L.J. 706: (1987) 1 SCC 679). Where there
is glaring conflict between medical and oral evidence, the prosecution case must
fail. (Awadhesh v. State of M.P., AIR 1988 SC 1158: 1988 Cr.L.J. 1154, Mohd.
Habib v. State, 1988 CC Cases 401 (HC)(DB).
Unless the medical evidence completely rules out the prosecution story,
the oral evidence if otherwise reliable cannot be rejected (Vahula Bhusan v.
State of Tamil Nadu, (1989) 1 SCJ 255, State of U.P. v. Krishna Gopal, AIR
1988 SC 2154: 1989 Cr.L.J. 288; Thakur Singh v. State of Bihar, 1988 Pat.
LOR 302 (DB); See also Dharamvir v. State, 1989 All. L.J. 454(OB);
Awadhesh v. State of M.P. AIR 1988 SC 1158: 1988 Cr.L.J. 1154). Where the
eye-witnesses account is found credible and trustworthy, medical opinion
5
pointing to alternative possibilities is not accepted as conclusive. Witnesses as
Bantham said, are the eyes and ears of justice. Hence the importance and
primacy of the quality of the trial process. Eyewitnesses’ account would require
a careful independent assessment and evaluation for their credibility, which
should not be adversely prejudged making any other evidence, including
medical evidence as the sole touchstone for the test of such credibility. The
evidence must be tested for Its inherent consistency and the inherent
improbabilities. (State of U.P. v. Krishna Gopal, AIR 1988 SC 2154). The
medical officer stated that the injuries found on the body of the deceased could
be the result of either two shots or even more than two shots, but the evidence
of eyewitnesses clearly showed that there were two shots. The Supreme Court
held that there was no inconsistency between the medical evidence and the
ocular evidence and the inconsistency deposed by the medical officer was
merely a probability and It was not fatal to the prosecution case. (Maghar Singh
v. State: of Punjab, (1987) 2 SCC 642).
In a case where death is due to injuries or wounds caused by a lethal
weapon, it is always the duty of the prosecution to prove by expert evidence that
it was likely or at least possible for the injuries to have been caused with the
weapon with which and in the manner in which they are alleged to have been
caused. (Mohinder Singh v. State, AIR 1953 SC 415; 1953 Cr.L.J. 1761). In that
case it was found doubtful whether the injuries which were attributed to the
accused were caused by a gun or a rifle. It seemed more likely that they were
caused by a rifle than a gun and yet the case of the prosecution was that the
accused was armed with a gun and in his examination it was definitely put to
him that he was armed with the gun. The Supreme Court held that it was only
by the evidence of a duly qualified expert that it could have been ascertained
whether the injuries attributed to the accused were caused by a gun or a rifle and
such evidence alone could settle the controversy as to whether they could
possibly have been caused by a fire arm used at such a close range as was
suggested in the evidence. In Ishwar Singh v. State of U.P. (AIR 1976 SC 2423:
1976 Cr.L.J. 1883: 1976 SCC (Cri.) 629 See also Kartarey v. State of UP, AIR
1976 SC 76: 1976 Cr.L.J. 13), their Lordship of the Supreme Court again
observed:
"It is the duty of the prosecution, and no less of the Court, to
see that the alleged weapon of the offence, if available, is
shown to the medical witness and his opinion invited as to
whether all or any of the injuries on the victim could be caused
with that weapon. Failure to do so may sometimes, cause
aberration In the course of justice."
In this case on the basis of evidence on the record, it was difficult to say
whether the injury to the deceased was caused by the ballam or the bhala that
were seized and whether it was accused l or II who was responsible for it even if
6
one believed that on the day of the occurrence the former carried a ballam and
the latter a bhala. The weapons were not shown to the medical officer who
could have deposed which injury was caused by which weapon. The conviction
of the accused was set aside.
The principles laid down by the Hon'ble Supreme Court that the weapon
of offence recovered in a case should be shown to an expert and he should be
asked to say whether the injuries found on the deceased could be caused with
that weapon has no application to cases where the alleged weapon of offence
has not been recovered. (Jai Dev v. State of Punjab, AIR 1963 SC 612: 1963(1)
Cr. L.J. 495). Where the medical evidence is clear, failure to produce weapon of
offence would not negate the medical evidence (B.V. Danny Mao v. State, 1989
Cr LJ 226 (Gauh). In a recent case the Supreme Court has held that the mere
omission to elicit opinion of the medical officer in the witness box whether a
particular injury is possible by the weapon of offence by showing weapon to the
witness does not make difference where ocular testimony is acceptable and
further corroborated by the first information report. (Gurmej Singh v. State of
Punjab, AIR 1992 SC 214 at p. 219: 1992 Cr.L.J. 293).
The Court is in error when it substitutes its own opinion resting on
conjectural premises for that of the medical experts, regarding the nature of the
inflicting weapon. (State of U.P. v. Shankar, AIR 1981 SC 897: 1981 Cr.L.J.
23: 1981 A.L.J. 9).
Where weapon could not be discovered, its nature can be assessed from
the injuries caused. (Sakharam v. State of Maharashtra, (1969) 3 SCC 730 at p.
735 paragraph 1).
The serologist must mention in his report about the group of blood found
on the article sent to him for examination. Where report of the serologist
indicated that the shirt and dhoti of the accused were stained with human blood,
but did not mention about the group of the blood, the Supreme Court held that
in the absence of group of blood in the serologist report, it could not positively
be connected with the deceased. The report and the evidence of the
investigating officer did not also show the dimensions of the stains of blood.
Few small blood-stains on the clothes of a person may even be of his own blood
especially if it is a villager putting on these clothes and living in villages. The
evidence about the blood group is only conclusive to connect the blood-stains
with the deceased. The court refused to place reliance upon these circumstances.
(Kansa Behera. v. State of Orissa. AIR 1987 SC 1507 at p. 1509, 1510).
When blood stained weapon of assault is recovered from the possession
of the accused but it is not shown that the blood-stains on the weapon were of
the same group as the blood of the deceased. The recovery of blood stained
weapon of assault from the possession of the accused is of no help to the
prosecution. The accused was acquitted of the charge of murder (Surinder Singh
7
v. State of Punjab: 1989 SCC (Cri) 649: 1989 ACC 382 :(1989) Supp (2) SCC
21. The matching of the blood group on the wearing apparel of the accused and
the wearing apparel of the deceased does corroborate the prosecution story that,
however by itself is not conclusive proof of the culpability of the accused
(Binder Munda v. State, 1992 Cr.L.J. 3508 Ori. (DB) (Case Law discussed)
It cannot be laid down a general proposition that in the absence of
determination of blood group the find of human blood on the weapon or
garment of the accused is of no consequence (Khujji v. State of M.P., 1991
Cr.L.J. 2653 (SC).
The injury report or the post-mortem report given by a doctor is not
substantive evidence and is inadmissible in evidence unless he is examined. If,
however, the doctor is dead or is not available for examination in Court, under
the circumstances mentioned in Section 32 of the Evidence Act, the injury
report or the post-mortem is admissible and relevant. It may be proved by the
another doctor or the compounder available. (S.R. Singh v. State, (1976-77) 81
CWN 724 at pp. 726-727 (DB); Mohan Singh v. Emperor, AIR 1925 All. 413
(DB). State v. Rakshpal Singh, AIR 1953 All. 520; Ram Pratap v. State, 1967
All. W.R. (H.C.) 395; Ram Balak Singh v. State, AIR 1964 Pat. 62(DB);
1964(1) Cr.L.J. 214; See also Mellor v. Walnesley, 1905, 2Ch. 164 (CA); Hadi
Kisani v. State, AIR 1966 Orissa 21: 1966 Cr.L.J. 45; but see Krushna v. State,
34 Cut. LT.494; In re Ramaswami, AIR 1938 Mad. 336:40 Cr.L.J.596).
Where the medical officer who conducted the post-mortem examination
is not examined in court nor the post-mortem report is tendered in evidence, the
same cannot be used as substantive evidence. (Gofur Sheikh v. State, 1984
Cr.L.J. 559 (Cal) (DB); Bhanda Gorh v. State of Assam, 1984 Cr.L.J.217 (Gau)
(DB); Jagdeo Singh v. State, 1979 Cr.L.J.236 (All) (DB). See also K. Pratap
Reddy v. State of A.P., 1985 Cr.L.J.1446 (A.P., 1985 Cr.L.J. 1446 (A.P.) (OB).
The report of the doctor must be filled in the Court. The contents of the
report contained in the affidavit of another person are not admissible in
evidence. (Mohd. lkram Hussain v. State of U.P., AIR 1964 SC 1625: 1964(2)
Cr.L.J. 590 at p.598).
Where the case arose out of an acute faction and witness examined are all
interested, the evidence of the witnesses has to be scrutinised with great care
and caution and should be examined in the light of the earliest report, the
medical evidence and other surrounding circumstances (Ladha Shamji Dhanani
v. State of Gujarat, AIR 1992 SC 956).
From the discussions made above, the following propositions emerge-
1. The medical opinion has great bearing and is of great assistance in the
trial of criminal cases. It greatly helps the prosecution in establishing its case by
soliciting corroboration from it by showing that the injuries could have been
8
caused by the alleged weapon of offence by the accused persons in the manner
alleged. The accused persons with the assistance of medical evidence try to
demolish the prosecution story by showing that the injuries could not have been
caused by the alleged weapon of offence or the death could not have occured in
the manner alleged by the prosecution.
by the prosecution.
2. The medical opinion is merely of advisory nature. It is based on the
observations made by the medical officer of the body of the injured and the
corpse after the occurrence has taken place. In certain ways, medical opinion
can be said to be direct evidence as by the colour of the injuries, the
presence/absence of rigor mortis in the corpse, the presence of the tattooing
marks, state of nature of the food digested/semi-digested/or undigested noted by
the medical officer immediately after the incident. The time of the occurrence,
is determined.
3. Since witnesses are the eyes and ears of justice, the oral evidence has
primacy over the medical evidence. If the oral testimony of the witnesses is
found reliable, creditworthy and inspires confidence, the oral evidence has to be
believed, it cannot be rejected on hypothetical medical evidence.
4. The medical opinion pointing to alternative possibilities cannot be
accepted as conclusive. Unless the medical evidence completely rules out the
prosecution story, the oral evidence if otherwise reliable cannot be rejected.
5. The medical officer being an expert witness, his testimony has to be
assigned great importance. However, there is no irrebutable presumption that a
medical officer is always a witness of truth, his testimony has to be evaluated
and appreciated like the testimony of any other ordinary witness.
[J.T.R.

MedicalLawEthicsF R I D A Y 25 NOVEMBER

Introduction:
Law of evidence allows a person –who is a witness to state the facts related to either to a fact in issue or to
relevant fact, but not his inference. It applies to both criminal law and civil law. The opinion of any person
other than the judge by whom the fact has to be decided as to the existence of the facts in issue or relevant
facts are as a rule, irrelevant to the decision of the cases to which they relate for the most obvious reasons-
for this would invest the person whose opinion was proved with the character of a judge1. The rule however,
is not without its exceptions. “If matters arise in our law which concern other sciences or faculties, we
commonly apply for the aid of that science or faculty which it concerns”.2
The expert witness is, thus, an exception to the exclusionary rule and is permitted to give opinion evidence.
The Judge is not expected to be an expert in all the fields-especially where the subject matters involves
technical knowledge. He is not capable of drawing inference from the facts which are highly technical. In
these circumstances he needs the help of an expert- who is supposed to have superior knowledge or
experience in relation to the subject matter. This qualification makes the latter’s evidence admissible in
that particular case
though he is no way related to the case. Because an expert has an advantage of a particular knowledge vis-
à-vis a judge who is not equipped with the technical knowledge and hence not capable of drawing an
inference from the facts presented before him.

Who is an expert?
An expert is a person who devotes his time and study to a special branch of learning. The Supreme Court of
United State of America defined an expert as a person who possesses knowledge and experience not
possessed by mankind in general. The Courts in India in their judgments described an expert as a person who
has acquired special knowledge, skill or experience in any art, trade or profession. Such knowledge need not
be imparted by any University. He might have acquired such knowledge by practice, observation or careful
study. The expert operates in a field beyond the range of common knowledge. When the Court has to form
an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting (or finger
impressions)3, the opinions upon that point of persons especially skilled in such foreign law, science or art
(or in questions as to identity of handwriting) 4 (or finger impressions)5 are relevant facts 6. Such persons
are called experts. To sum up an expert is one who is skilled in any particular art, trade or profession being
possessed of peculiar knowledge concerning the same 7.

Expert as a witness:
The phrase expert testimony is not applicable to all species of opinion evidence. A witness is not giving
expert testimony who without any special knowledge simply testifies as to the impressions produced in his
mind. Question of common knowledge such as whether the hammering of the steel plates with hammers
weighing 10 kg cause noise or not does not need an expert. Expert evidence is often sought in the matters
of handwriting, age, on weather, general conduct of a business etc. A person having special knowledge of
the value of land by experience though not by any profession can be treated as an expert 8 . All these years
the Courts in India have been accepting the testimony of a goldsmith about the metal being gold and the
extent of its purity though the test is very crude carried out by rubbing the metal on the touch stone 9. Now
as the technology has been invented to test the purity of gold- the evidence by goldsmiths might become
redundant.

The Cases in which Expert Evidence can be Admitted:

The Supreme Court of New Hampstead has classified the cases under three heads and declared that experts
may give opinions on the following:
1. Questions of science, skill or trade or other subjects.
2. When the subject matter of enquiry is of such a nature that inexperienced persons are not likely to form a
correct judgment over it without assistance.
3. When the subject matter of investigation so far as it partakes of the nature of a science as to mean a
course of previous habit or a study in the attainment of knowledge of it 10.

Expert Evidence in Indian Evidence Act:

Expert evidence is covered under Ss.45-51 of Indian Evidence Act. S.45 of the Act allows that when the
subject matter of enquiry partakes of science or art as to require the course of previous habit or study and
in regard to which inexperienced persons are unlikely to form correct judgment.
Therefore the opinion of persons having special knowledge of the subject – matter of the enquiry and
described as experts is made relevant. However, whether a particular person is a competent witness or not
is to be proved in the Court of Law before his testimony is admitted. The competency of an expert is a
preliminary question before the Judge. An expert need not be a paid professional expert who makes living by
giving such evidence, but he must have devoted sufficient time and study to the subject so that he can make
his evidence trustworthy.
Subject Matters of Expert Evidence: The subjects of expert testimony mentioned by the section are foreign
law, science, art and the identity of handwriting or finger –impressions. Expert on any other subject is not
admissible.11 This was the position in 1954. No more it is the law. Law related to expert evidence has
developed in a piece meal method growing hand by hand with the development of technology in every
field. The word science or art if interpreted in a narrow sense, would exclude matters upon which expert
testimony is admissible such as matters related to trade, handicrafts, ballistics and many more. Every
business or employment which has a particular class devoted to its pursuit is an art or trade.12
When the question of foreign law is raised the evidence of professional lawyer or the holder of an official
situation which requires and therefore implies legal knowledge or a teacher of law is admissible. As far as
science and art concerned they are to be broadly construed so as to include all subjects on which a course of
special study or experience is necessary to the formation of an opinion and embrace also the opinion of an
expert in footprint as well 13. The opinion of the medical men are admissible upon questions within their
own province such as insanity, the causes of diseases the nature of the injuries, the weapons which might
have
been used to cause such injuries the cause of death, the weapons might have been used in causing the
death, medicines, poisons, the conditions of gestation, effects of hospitals upon the health of the
neighborhood etc., Other expert evidence includes those of naturalists as to the ability of fish to overcome
obstacles in a river: those of chemists as to the value of a particular kind of guano as a fertilizer: the safety
of a non-explosive camphene and fluid lamp: the constituent part ofa certain chemical compound; the
effects of a particular poison: fermentation of a liquor; those of geologists as to the existence of a coal
seams: those of botanists as to the effects of working coke ovens upon trees in the neighborhood: those of
persons of specially skilled in insurance matters, such as the opinion of an insurance agent and examiner
that a partition in a room increased the risk in a fire policy: an so with other branches of science.14 In the
field of art the opinion of artists are admissible as to the genuineness or value of a work of art: the opinion
of a photographer as to the good execution of a photograph, the opinions of engineers regarding
constructions, erection of dams etc., are admissible. The list is only illustrative.
It is not exhaustive. However, it depends on the discretion of the judge to accept or reject such evidence.
S.47 of the Indian Evidence Act exclusively deals with the opinion as to the handwriting 15. The explanation
further elaborates the circumstances under which a person is said to have known the disputed
handwriting.16
Under this section a person who is deposing the evidence need not be a handwriting expert. Indeed
the knowledge the general character of any person’s writing which a witness has acquired incidentally and
unintentionally, under no circumstance of bias or suspicion, is far more satisfactory than the most elaborate
comparison of even an experienced person. One can get acquainted with others handwriting in many ways.
The former might have seen the latter writing a particular handwriting. He might be receiving letter from
the latter regularly. A superior officer might have seen his subordinate’s writing on several occasions and
vice versa. But, the evidence given by a person who has insufficient familiarity should be discarded 17.
Indian Evidence Act insists that documents either be proved by primary evidence or by secondary
evidence.18
S.67 of the Indian Evidence Act prescribes the mode of proving the signature in a document. 19 However,
the opinion as to handwriting is admissible only if the condition laid down in S. 47 is fulfilled, that is the
witness is established to have been acquainted with the writing of the particular person in one of the modes
enumerated in this section.20 However, the opinion of an expert is relevant when the Court has to form an
opinion on a point of science or art. At times expert opinion differs on proven or admitted facts. But when
the facts are not admitted the Court will have first to come to a conclusion on the evidence as to what facts
have been proved and then to apply to such facts the various expert opinions which have been offered. The
opinion of an expert in handwriting should be received with great caution and should not be relied on unless
corroborated.21 But no such corroboration is need in the case of finger prints. Of course, an expert can
always refresh him memory by referring to the text books. A doctor can refer to medical books, a valuer to
the price lists, a foreign lawyer to legal codes, texts and other journals.
At one time expert evidence is limited to medical doctors, engineers, architects, stockbrokers etc. Now the
science and technology have reached to such heights no more the expert evidence is confined to the above
mentioned but also to the scientists in each field. As far as criminal law is concerned ballistic experts,
forensic experts, scientists who decide the legitimacy by DNA tests, chemical examiners, psychiatrists,
radiologists and even track-dogs are playing a vital role in investigation of crimes and their evidence is
admissible in the court of law.
Scientific evidence is evidence which serves to either support or counter a scientific theorem or hypothesis.
Such evidence is expected to be empirical and properly documented in accordance with scientific method
such as is applicable to the particular field of inquiry. Standards for evidence may vary according to whether
the field of inquiry is among the natural sciences or social sciences 22. Scientific evidence is demonstrative
evidence. Unlike oral testimony which depends on the deposition of a witness, scientific evidence is
obtained by using the scientific method. Scientific evidence which is admitted in the trial must not only be
relevant but also trustworthy. An expert witness is called to testify about the reliability of the scientific
evidence sought to be introduced at trial.23 Foot Prints: Footprint identification is reliable. Our bare feet
contain friction ridge patterns which are unique to each individual. Hence, the finger prints and footprints
found at the scene of offence can be used to help identify the offender. They can be used for identifying the
victim as well. The
validity of the scientific method used for fingerprinting and foot printing is accepted by the Courts. In Pritam
Singh vs. State of Punjab 24 disputed footprints in blood near a dead body and going towards the bathroom,
were compared with those of the accused taken in printer’s ink. The expert gave evidence giving points of
nine similarities in respect of the right foot and ten in respect of the left foot: and three dissimilarities only
in each case and explained the dissimilarities with reference to the different densities of blood and ink. It
was held that the comparison stood the test well and under the circumstances these foot impressions in
blood near the place of the incident, were proved to be those of the accused.

Deoxyribonucleic Analysis (DNA)

Each person's genetic makeup contains DNA. This differs from individual to individual. DNA can be
obtained through blood, saliva, semen, or hair. This helps in identifying a person. If a drop of blood or a
strand of hair is found at a crime scene, it can be compared to a person's known DNA to see if there is a
match, thereby linking the person to the crime. An expert witness can give an opinion about the likelihood
that the blood that was found at the crime scene came from the individual whose sample was compared.
DNA analysis is also used to establish paternity. Experts believe that the ability to link the culprit to the
crime scene through his DNA prints is unquestionable as unlike conventional fingerprints that can be
surgically altered, DNA is found in every tissue and no known chemical intervention can change
it. 25 Tracker Dog: In India we have yet to accept the evidence of tracker dog as a substantive piece
of evidence. The Supreme Court of India opined that even the evidence of dog-tracking, if admissible also
does not have much weight in the present state of scientific knowledge. 26 The same was reiterated in
another case 27 where it was held that evidence of tracker dog was of little importance.
No adverse inference could be drawn against the prosecution on the ground tracker was not examined by the
prosecutor. However, it was observed that in construing the words science or art a static view can be no
longer be tenaable since expert testimony on subjects like telephony, psychiatry, identification of foot
marks and tracker evidence is now admitted 28 . As recently as in 1993 the Court held that tracker dog’s
evidence must be scrutinized and it reliability is as good or as bad as any other piece of evidence. 29
Lie Detector: Generally Courts refuse to admit the results of a polygraph test as evidence. Polygraph
measures a person's unconscious physiological responses, such as breathing, heart rate, and galvanic skin
response while the person is being questioned. The underlying theory is that stress occurs when a person lies
and that this stress is measured by changes in the person's physiological responses. There is a concern that
an individual can conceal stress when he or she is lying. Polygraph tests are also considered unreliable
because it is not possible to tell whether the stress that is measured during the test is caused by the test
itself or by a lie 30.
Ballistic Expert Evidence: Ballistics is the science that deals with the motion, behavior, and effects of
projectiles, especially bullets, gravity bombs, rockets, or the like; the science or art of designing and hurling
projectiles so as to achieve a desired performance 31.Where the opinion is given by the Expert of Ballistics
who after conducting all the tests deposes in the Court of law, there is no reason to distrust his opinion. It
can be accepted.32 That does not mean in spite having direct evidence, one should call for the opinion of
the expert. In every case where a firearm is alleged to have been used by an accused person, in addition to
the direct evidence, prosecution must lead the evidence of a ballistic expert, however good the direct
evidence may and though, on the record, there may no reason to doubt the said direct evidence 33.
Medical Expert: As far as medical experts are concerned the Courts in India have different opinions. In
certain cases they have accepted the evidence. The husband alleged his wife was pregnant at the time of
marriage. The doctor who was an expert in mid-wifery had deposed the contention to be true. Though he
was not gynecologist, the Court accepted his evidence.34
But, again the Court held in other cases medical evidence is hardly conclusive and decisive, because it is
primarily an evidence of opinion. The Court has to consider not merely medical evidence but also the other
evidence and circumstances appearing on the point.35
But as far as post mortem reports are concerned sufficient weightage is given to the doctors’ deposition
who had conducted the postmortem. When the post mortem report is more favourable to the accused and
there are discrepancies between the medical evidence and the inquest report, the benefit of
discrepancies should be given to the accused by accepting the post-mortem report instead of inquest
report.36
Where the report of the serologist stated that the blood on the two items of clothes was human blood and
the items belonged to the accused, they connect him with crime.37
Regarding injuries and time of death the evidence of the experts is accepted depending on the other
circumstances.
Regarding age positive evidence furnished by birth register, by members of the family, with regard to the
age, will have preference over the opinion of the doctors: but, if the evidence is wholly unsatisfactory, and
if the ossification test in the case is complete, such test can be accepted as a surer ground for determination
of age.
38
As far as paternity is concerned now it has become very usual to direct the use of blood tests. Blood groups
according to the scientists have a causative relation between the trait of the progenitor and that of the
progeny. In other words the blood compositor of child may be of some evidence as to the child’s paternity.
The blood group tests are useful only to exclude the possibility that a man is the father. Sophisticated blood
tests are now
being adopted which are so advanced as capable of providing a very high or low probability of paternity.
Tests made of the DNA can provide what can practically be regarded as certainty in paternity cases. 39
The expert opinion is not confined to handwriting alone. The opinions in relation to customs are also
admissible according to S. 48 of Indian Evidence Act.40
Section 13 41and S.32 (4) also mentions about custom.
42S.13 deals with all rights and customs, public, general and private and refers to specific facts which may
be given in evidence. The latter is a hearsay evidence where a secondhand opinion can be admissible in the
Curt of law where the person who opined cannot be brought before the Court ( because of death or
inability) upon the question of the existence of any public right or custom or matter of public or general
interest made ante litem motan. But S.48 deals with the evidence of a living witness, who stood before the
Court sworn to depose and subject to cross examination. Not only custom under this section opinion
regarding usage is also admissible.
The only condition Courts insist is that while deposing about custom it is to be established by unambiguous
evidence. S.49 43 is about the opinions regarding tenets and S.50 44 is about the opinion on relationships.
S.32 (5) of Indian Evidence Act 45 also is about the admissibility ofopinions in relation to relationships. The
Apex Court in several cases made it clear that relationship proved under any other provision other than
these provisions is inadmissible. But, there is a basic difference between these two provisions. Section 32 (5)
relates to statements of deceased persons only where as S.50 takes into consideration the opinion of living
persons also. The essential features of S.50 are there must be a case where the Court has form an opinion
as to the
relationship of one person to another, in such a case the opinion is formed by conduct as to the existence of
such relationship, he must have been a member of the family or otherwise has special means of knowledge
on the particular subject of relationship. This section does not make evidence of mere general reputation
admissible as proof of relationship.46
The gathering of special means of knowledge is not confined only to the members of the family but has
been given a wide connotation by the expression “otherwise”. Special means of knowledge must however be
proved independent of the opinion expressed by conduct 47. The language of S.50 leaves no room for doubt
that opinion expressed by conduct of a person who as a member of the family or otherwise, has a special
means of knowledge as to the relationship of one person to another about which the Court has toform an
opinion is relevant irrespective of the fact whether the person is himself called as a witness or not 48.
However, the proviso to S.50 49 cannot however be applied to ordinary civil cases where the facts
of marriage or of divorce are in dispute. The Act had adopted the requirements of the prudent man as an
appropriate concrete standard by which to measure proof. Because, in civil cases mere preponderance of
probability is sufficient. In criminal cases the guilt is to be proved beyond all reasonable doubt. From the
proviso it appears that evidence which is considered sufficient for one purpose is not considered sufficient
for another. In proceedings founded on charge of adultery, strict of the marriage is always necessary. 50
In case the Court wants to convict under. S.498 of the Indian Penal Code the prosecution has to prove that
the complainant and the woman, in respect of whom the charge was made, lived together as man and wife.
It is necessary that the fact constituting a valid marriage should be proved in accordance with S.60 the
Indian Evidence Act.51
In view of the provision to S.50 a number of authorities have laid down that for prosecution under. S.494,
497 and 498 of IPC marriage must be strictly proved as a fact and no presumption can be drawn by the
Courts. As the opinions of certain persons are relevant in the same way the ground on which such an
opinion is formed also becomes relevant. This principle is envisaged in S. 51 of the Indian Evidence Act.52
The mere opinions of the witnesses are entitled to little or no regard unless they are supported by good
reasons, founded on facts, which warrant them the opinion of the jury. If the reasons are frivolous or
inconclusive, the opinions of the witnesses are worth nothing 53. The opinion of an expert witness is
admissible in evidence not only when it rests on the personal observation and inquiry but also when it is
founded on the cases as proved by other witness at the trial.
Opinion as to the character: In civil cases evidence of the character of any party to the suit, to prove the
probability or improbability of any conduct imputed to him is irrelevant 54. The general exclusion of
character evidence is based on grounds of public policy and fairness. The general rule is that the evidence
as to the character of a person is irrelevant in a civil case. The Evidence of character relates either to
character of witness or to character of parties. Character of a witness affects his credit and is always
material, as it helps the Court to come to the conclusion whether his evidence should be treated as
trustworthy. Questions touching the character of a witness are allowed to be put to a witness who comes to
give evidence in a case
55. This is not the same with criminal cases.56 However, good character is not a defence, for –one would
then be convicted, as everyone starts with a good character. The defendant is, however, entitled to rely on
the fact that he is of previous good character as making it less likely that he would have committed the
offence. If there is any room for doubt, his good character may be thrown in the scales in his favor 57. S.54
envisages that previous bad character is not relevant except in reply.58
Under S.55 the character affects the damages. 59 However, the opinion regarding the character would not
come under expert opinion.
To sum up it is chiefly on question of science or trade (where there often is a difficulty, and occasionally, an
impossibility, of obtaining more direct and positive evidence) that person of peculiar skill on the subject
(sometimes called experts), are allowed to give their opinions in evidence as well as testify to facts. Thus
the opinions of medical men are constantly admitted in matters related to time of death, age of the parties,
cause of death, possibility of the weapons used, disease, injury, sanity and insanity of the parties so on and
so forth. Now a day the DNA test is often used in fixing the paternity of the child in family law related cases
such as maintenance and legitimacy of the child. It is in short, a general rule the opinion of a person who has
special skill in that particular field shall be admissible in the Court of law. There may exceptions to this rule,
in spite of it when there is dearth of direct evidence and in certain cases to corroborate the already existing
evidence the expert opinion is sought.
?

Subscribe to: Post Comments (Atom)

Court of United State of America defined an expert as a person who possesses knowledge and experience not
possessed by mankind in general. The Courts in India in their judgments described an expert as a person who
has acquired special knowledge, skill or experience in any art, trade or profession. Such knowledge need not
be imparted by any University. He might have acquired such knowledge by practice, observation or careful
study. The expert operates in a field beyond the range of common knowledge. When the Court has to form
an opinion upon a point of foreign law, or of science or art, or as to identity of handwriting (or finger
impressions)3, the opinions upon that point of persons especially skilled in such foreign law, science or art
(or in questions as to identity of handwriting) 4 (or finger impressions)5 are relevant facts 6. Such persons
are called experts. To sum up an expert is one who is skilled in any particular art, trade or profession being
possessed of peculiar knowledge concerning the same 7.

Expert as a witness:
The phrase expert testimony is not applicable to all species of opinion evidence. A witness is not giving
expert testimony who without any special knowledge simply testifies as to the impressions produced in his
mind. Question of common knowledge such as whether the hammering of the steel plates with hammers
weighing 10 kg cause noise or not does not need an expert. Expert evidence is often sought in the matters
of handwriting, age, on weather, general conduct of a business etc. A person having special knowledge of
the value of land by experience though not by any profession can be treated as an expert 8 . All these years
the Courts in India have been accepting the testimony of a goldsmith about the metal being gold and the
extent of its purity though the test is very crude carried out by rubbing the metal on the touch stone 9. Now
as the technology has been invented to test the purity of gold- the evidence by goldsmiths might become
redundant.

The Cases in which Expert Evidence can be Admitted:

The Supreme Court of New Hampstead has classified the cases under three heads and declared that experts
may give opinions on the following:
1. Questions of science, skill or trade or other subjects.
2. When the subject matter of enquiry is of such a nature that inexperienced persons are not likely to form a
correct judgment over it without assistance.
3. When the subject matter of investigation so far as it partakes of the nature of a science as to mean a
course of previous habit or a study in the attainment of knowledge of it 10.

Expert Evidence in Indian Evidence Act:

Expert evidence is covered under Ss.45-51 of Indian Evidence Act. S.45 of the Act allows that when the
subject matter of enquiry partakes of science or art as to require the course of previous habit or study and
in regard to which inexperienced persons are unlikely to form correct judgment.
Therefore the opinion of persons having special knowledge of the subject – matter of the enquiry and
described as experts is made relevant. However, whether a particular person is a competent witness or not
is to be proved in the Court of Law before his testimony is admitted. The competency of an expert is a
preliminary question before the Judge. An expert need not be a paid professional expert who makes living by
giving such evidence, but he must have devoted sufficient time and study to the subject so that he can make
his evidence trustworthy.
Subject Matters of Expert Evidence: The subjects of expert testimony mentioned by the section are foreign
law, science, art and the identity of handwriting or finger –impressions. Expert on any other subject is not
admissible.11 This was the position in 1954. No more it is the law. Law related to expert evidence has
developed in a piece meal method growing hand by hand with the development of technology in every
field. The word science or art if interpreted in a narrow sense, would exclude matters upon which expert
testimony is admissible such as matters related to trade, handicrafts, ballistics and many more. Every
business or employment which has a particular class devoted to its pursuit is an art or trade.12
When the question of foreign law is raised the evidence of professional lawyer or the holder of an official
situation which requires and therefore implies legal knowledge or a teacher of law is admissible. As far as
science and art concerned they are to be broadly construed so as to include all subjects on which a course of
special study or experience is necessary to the formation of an opinion and embrace also the opinion of an
expert in footprint as well 13. The opinion of the medical men are admissible upon questions within their
own province such as insanity, the causes of diseases the nature of the injuries, the weapons which might
have
been used to cause such injuries the cause of death, the weapons might have been used in causing the
death, medicines, poisons, the conditions of gestation, effects of hospitals upon the health of the
neighborhood etc., Other expert evidence includes those of naturalists as to the ability of fish to overcome
obstacles in a river: those of chemists as to the value of a particular kind of guano as a fertilizer: the safety
of a non-explosive camphene and fluid lamp: the constituent part ofa certain chemical compound; the
effects of a particular poison: fermentation of a liquor; those of geologists as to the existence of a coal
seams: those of botanists as to the effects of working coke ovens upon trees in the neighborhood: those of
persons of specially skilled in insurance matters, such as the opinion of an insurance agent and examiner
that a partition in a room increased the risk in a fire policy: an so with other branches of science.14 In the
field of art the opinion of artists are admissible as to the genuineness or value of a work of art: the opinion
of a photographer as to the good execution of a photograph, the opinions of engineers regarding
constructions, erection of dams etc., are admissible. The list is only illustrative.
It is not exhaustive. However, it depends on the discretion of the judge to accept or reject such evidence.
S.47 of the Indian Evidence Act exclusively deals with the opinion as to the handwriting 15. The explanation
further elaborates the circumstances under which a person is said to have known the disputed
handwriting.16
Under this section a person who is deposing the evidence need not be a handwriting expert. Indeed
the knowledge the general character of any person’s writing which a witness has acquired incidentally and
unintentionally, under no circumstance of bias or suspicion, is far more satisfactory than the most elaborate
comparison of even an experienced person. One can get acquainted with others handwriting in many ways.
The former might have seen the latter writing a particular handwriting. He might be receiving letter from
the latter regularly. A superior officer might have seen his subordinate’s writing on several occasions and
vice versa. But, the evidence given by a person who has insufficient familiarity should be discarded 17.
Indian Evidence Act insists that documents either be proved by primary evidence or by secondary
evidence.18
S.67 of the Indian Evidence Act prescribes the mode of proving the signature in a document. 19 However,
the opinion as to handwriting is admissible only if the condition laid down in S. 47 is fulfilled, that is the
witness is established to have been acquainted with the writing of the particular person in one of the modes
enumerated in this section.20 However, the opinion of an expert is relevant when the Court has to form an
opinion on a point of science or art. At times expert opinion differs on proven or admitted facts. But when
the facts are not admitted the Court will have first to come to a conclusion on the evidence as to what facts
have been proved and then to apply to such facts the various expert opinions which have been offered. The
opinion of an expert in handwriting should be received with great caution and should not be relied on unless
corroborated.21 But no such corroboration is need in the case of finger prints. Of course, an expert can
always refresh him memory by referring to the text books. A doctor can refer to medical books, a valuer to
the price lists, a foreign lawyer to legal codes, texts and other journals.
At one time expert evidence is limited to medical doctors, engineers, architects, stockbrokers etc. Now the
science and technology have reached to such heights no more the expert evidence is confined to the above
mentioned but also to the scientists in each field. As far as criminal law is concerned ballistic experts,
forensic experts, scientists who decide the legitimacy by DNA tests, chemical examiners, psychiatrists,
radiologists and even track-dogs are playing a vital role in investigation of crimes and their evidence is
admissible in the court of law.
Scientific evidence is evidence which serves to either support or counter a scientific theorem or hypothesis.
Such evidence is expected to be empirical and properly documented in accordance with scientific method
such as is applicable to the particular field of inquiry. Standards for evidence may vary according to whether
the field of inquiry is among the natural sciences or social sciences 22. Scientific evidence is demonstrative
evidence. Unlike oral testimony which depends on the deposition of a witness, scientific evidence is
obtained by using the scientific method. Scientific evidence which is admitted in the trial must not only be
relevant but also trustworthy. An expert witness is called to testify about the reliability of the scientific
evidence sought to be introduced at trial.23 Foot Prints: Footprint identification is reliable. Our bare feet
contain friction ridge patterns which are unique to each individual. Hence, the finger prints and footprints
found at the scene of offence can be used to help identify the offender. They can be used for identifying the
victim as well. The
validity of the scientific method used for fingerprinting and foot printing is accepted by the Courts. In Pritam
Singh vs. State of Punjab 24 disputed footprints in blood near a dead body and going towards the bathroom,
were compared with those of the accused taken in printer’s ink. The expert gave evidence giving points of
nine similarities in respect of the right foot and ten in respect of the left foot: and three dissimilarities only
in each case and explained the dissimilarities with reference to the different densities of blood and ink. It
was held that the comparison stood the test well and under the circumstances these foot impressions in
blood near the place of the incident, were proved to be those of the accused.

Deoxyribonucleic Analysis (DNA)

Each person's genetic makeup contains DNA. This differs from individual to individual. DNA can be
obtained through blood, saliva, semen, or hair. This helps in identifying a person. If a drop of blood or a
strand of hair is found at a crime scene, it can be compared to a person's known DNA to see if there is a
match, thereby linking the person to the crime. An expert witness can give an opinion about the likelihood
that the blood that was found at the crime scene came from the individual whose sample was compared.
DNA analysis is also used to establish paternity. Experts believe that the ability to link the culprit to the
crime scene through his DNA prints is unquestionable as unlike conventional fingerprints that can be
surgically altered, DNA is found in every tissue and no known chemical intervention can change
it. 25 Tracker Dog: In India we have yet to accept the evidence of tracker dog as a substantive piece
of evidence. The Supreme Court of India opined that even the evidence of dog-tracking, if admissible also
does not have much weight in the present state of scientific knowledge. 26 The same was reiterated in
another case 27 where it was held that evidence of tracker dog was of little importance.
No adverse inference could be drawn against the prosecution on the ground tracker was not examined by the
prosecutor. However, it was observed that in construing the words science or art a static view can be no
longer be tenaable since expert testimony on subjects like telephony, psychiatry, identification of foot
marks and tracker evidence is now admitted 28 . As recently as in 1993 the Court held that tracker dog’s
evidence must be scrutinized and it reliability is as good or as bad as any other piece of evidence. 29
Lie Detector: Generally Courts refuse to admit the results of a polygraph test as evidence. Polygraph
measures a person's unconscious physiological responses, such as breathing, heart rate, and galvanic skin
response while the person is being questioned. The underlying theory is that stress occurs when a person lies
and that this stress is measured by changes in the person's physiological responses. There is a concern that
an individual can conceal stress when he or she is lying. Polygraph tests are also considered unreliable
because it is not possible to tell whether the stress that is measured during the test is caused by the test
itself or by a lie 30.
Ballistic Expert Evidence: Ballistics is the science that deals with the motion, behavior, and effects of
projectiles, especially bullets, gravity bombs, rockets, or the like; the science or art of designing and hurling
projectiles so as to achieve a desired performance 31.Where the opinion is given by the Expert of Ballistics
who after conducting all the tests deposes in the Court of law, there is no reason to distrust his opinion. It
can be accepted.32 That does not mean in spite having direct evidence, one should call for the opinion of
the expert. In every case where a firearm is alleged to have been used by an accused person, in addition to
the direct evidence, prosecution must lead the evidence of a ballistic expert, however good the direct
evidence may and though, on the record, there may no reason to doubt the said direct evidence 33.
Medical Expert: As far as medical experts are concerned the Courts in India have different opinions. In
certain cases they have accepted the evidence. The husband alleged his wife was pregnant at the time of
marriage. The doctor who was an expert in mid-wifery had deposed the contention to be true. Though he
was not gynecologist, the Court accepted his evidence.34
But, again the Court held in other cases medical evidence is hardly conclusive and decisive, because it is
primarily an evidence of opinion. The Court has to consider not merely medical evidence but also the other
evidence and circumstances appearing on the point.35
But as far as post mortem reports are concerned sufficient weightage is given to the doctors’ deposition
who had conducted the postmortem. When the post mortem report is more favourable to the accused and
there are discrepancies between the medical evidence and the inquest report, the benefit of
discrepancies should be given to the accused by accepting the post-mortem report instead of inquest
report.36
Where the report of the serologist stated that the blood on the two items of clothes was human blood and
the items belonged to the accused, they connect him with crime.37
Regarding injuries and time of death the evidence of the experts is accepted depending on the other
circumstances.
Regarding age positive evidence furnished by birth register, by members of the family, with regard to the
age, will have preference over the opinion of the doctors: but, if the evidence is wholly unsatisfactory, and
if the ossification test in the case is complete, such test can be accepted as a surer ground for determination
of age.
38
As far as paternity is concerned now it has become very usual to direct the use of blood tests. Blood groups
according to the scientists have a causative relation between the trait of the progenitor and that of the
progeny. In other words the blood compositor of child may be of some evidence as to the child’s paternity.
The blood group tests are useful only to exclude the possibility that a man is the father. Sophisticated blood
tests are now
being adopted which are so advanced as capable of providing a very high or low probability of paternity.
Tests made of the DNA can provide what can practically be regarded as certainty in paternity cases. 39
The expert opinion is not confined to handwriting alone. The opinions in relation to customs are also
admissible according to S. 48 of Indian Evidence Act.40
Section 13 41and S.32 (4) also mentions about custom.
42S.13 deals with all rights and customs, public, general and private and refers to specific facts which may
be given in evidence. The latter is a hearsay evidence where a secondhand opinion can be admissible in the
Curt of law where the person who opined cannot be brought before the Court ( because of death or
inability) upon the question of the existence of any public right or custom or matter of public or general
interest made ante litem motan. But S.48 deals with the evidence of a living witness, who stood before the
Court sworn to depose and subject to cross examination. Not only custom under this section opinion
regarding usage is also admissible.
The only condition Courts insist is that while deposing about custom it is to be established by unambiguous
evidence. S.49 43 is about the opinions regarding tenets and S.50 44 is about the opinion on relationships.
S.32 (5) of Indian Evidence Act 45 also is about the admissibility ofopinions in relation to relationships. The
Apex Court in several cases made it clear that relationship proved under any other provision other than
these provisions is inadmissible. But, there is a basic difference between these two provisions. Section 32 (5)
relates to statements of deceased persons only where as S.50 takes into consideration the opinion of living
persons also. The essential features of S.50 are there must be a case where the Court has form an opinion
as to the
relationship of one person to another, in such a case the opinion is formed by conduct as to the existence of
such relationship, he must have been a member of the family or otherwise has special means of knowledge
on the particular subject of relationship. This section does not make evidence of mere general reputation
admissible as proof of relationship.46
The gathering of special means of knowledge is not confined only to the members of the family but has
been given a wide connotation by the expression “otherwise”. Special means of knowledge must however be
proved independent of the opinion expressed by conduct 47. The language of S.50 leaves no room for doubt
that opinion expressed by conduct of a person who as a member of the family or otherwise, has a special
means of knowledge as to the relationship of one person to another about which the Court has toform an
opinion is relevant irrespective of the fact whether the person is himself called as a witness or not 48.
However, the proviso to S.50 49 cannot however be applied to ordinary civil cases where the facts
of marriage or of divorce are in dispute. The Act had adopted the requirements of the prudent man as an
appropriate concrete standard by which to measure proof. Because, in civil cases mere preponderance of
probability is sufficient. In criminal cases the guilt is to be proved beyond all reasonable doubt. From the
proviso it appears that evidence which is considered sufficient for one purpose is not considered sufficient
for another. In proceedings founded on charge of adultery, strict of the marriage is always necessary. 50
In case the Court wants to convict under. S.498 of the Indian Penal Code the prosecution has to prove that
the complainant and the woman, in respect of whom the charge was made, lived together as man and wife.
It is necessary that the fact constituting a valid marriage should be proved in accordance with S.60 the
Indian Evidence Act.51
In view of the provision to S.50 a number of authorities have laid down that for prosecution under. S.494,
497 and 498 of IPC marriage must be strictly proved as a fact and no presumption can be drawn by the
Courts. As the opinions of certain persons are relevant in the same way the ground on which such an
opinion is formed also becomes relevant. This principle is envisaged in S. 51 of the Indian Evidence Act.52
The mere opinions of the witnesses are entitled to little or no regard unless they are supported by good
reasons, founded on facts, which warrant them the opinion of the jury. If the reasons are frivolous or
inconclusive, the opinions of the witnesses are worth nothing 53. The opinion of an expert witness is
admissible in evidence not only when it rests on the personal observation and inquiry but also when it is
founded on the cases as proved by other witness at the trial.
Opinion as to the character: In civil cases evidence of the character of any party to the suit, to prove the
probability or improbability of any conduct imputed to him is irrelevant 54. The general exclusion of
character evidence is based on grounds of public policy and fairness. The general rule is that the evidence
as to the character of a person is irrelevant in a civil case. The Evidence of character relates either to
character of witness or to character of parties. Character of a witness affects his credit and is always
material, as it helps the Court to come to the conclusion whether his evidence should be treated as
trustworthy. Questions touching the character of a witness are allowed to be put to a witness who comes to
give evidence in a case
55. This is not the same with criminal cases.56 However, good character is not a defence, for –one would
then be convicted, as everyone starts with a good character. The defendant is, however, entitled to rely on
the fact that he is of previous good character as making it less likely that he would have committed the
offence. If there is any room for doubt, his good character may be thrown in the scales in his favor 57. S.54
envisages that previous bad character is not relevant except in reply.58
Under S.55 the character affects the damages. 59 However, the opinion regarding the character would not
come under expert opinion.
To sum up it is chiefly on question of science or trade (where there often is a difficulty, and occasionally, an
impossibility, of obtaining more direct and positive evidence) that person of peculiar skill on the subject
(sometimes called experts), are allowed to give their opinions in evidence as well as testify to facts. Thus
the opinions of medical men are constantly admitted in matters related to time of death, age of the parties,
cause of death, possibility of the weapons used, disease, injury, sanity and insanity of the parties so on and
so forth. Now a day the DNA test is often used in fixing the paternity of the child in family law related cases
such as maintenance and legitimacy of the child. It is in short, a general rule the opinion of a person who has
special skill in that particular field shall be admissible in the Court of law. There may exceptions to this rule,
in spite of it when there is dearth of direct evidence and in certain cases to corroborate the already existing
evidence the expert opinion is sought.
? that
manner; If it refers to an opinions or to the grounds in which that opinion is held, it must be the evidence of
the person who holds that opinion on those grounds - Provided that the opinion of experts expressed in any
treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the
production of such treatise if the author is dead or cannot be found or has become incapable of giving
evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as
unreasonable. Provided also that, if oral evidence refers to the existence or condition of any material thing
other than a document, the Court may, if it thinks fit, require the production of such material thing for its
inspection.

100 Boraiah Alias Shekar vs State on 20 December, 2002

10. In the case on hand, the genuineness of the document-

post mortem report is not disputed by the defence. The defence Counsel
had no objection to mark the document in evidence and therefore there was
no prohibition for the Court, which had admitted the document
in evidence to rely upon to find corroboration or contradiction to the
other evidence on record. Therefore, we are of the opinion that where post-
mortem report is marked by consent and where its genuineness is not
disputed, it is clearly an admissible evidence. Notwithstanding the fact that
the author of the post-mortem report is not called into the Court to
give evidence, specially where the defence has not chosen to cross-examine
the post-mortem Doctor. Therefore, the observations made by Their
Lordships in the case of Anjinappa v. State of Karnataka, reported in ILR
2000 Kant 3501), extracted supra, with great respect, we do not propose to
accede to this proposition laid down by the Division Bench in Anjinappa's
case and in our opinion, it needs further consideration by a larger Bench."

6. As against this, the learned Amicus Curiae for the appellant has contended
that Section 294 of Cr. P.C. does not refer to a document which even if
exhibited cannot be read in evidence as a substantive piece of evidence.
While elaborating this submission, he contended that the post-
mortem report by itself proves nothing as it is not a substantive piece
of evidence and on the other hand it is only a previous statement of the
doctor who conducted the post-mortem examination on the dead body of
the deceased and that it is the testimony of the doctor in Court which alone
is the substantive evidence and that the Post-Mortem report can be used
only to corroborate the evidence of the doctor in Court under Section 157 or
for refreshing his memory under Section 159 of the Evidence Act or for
contradicting his evidence in Court under Section 145 of the Evidence Act.
He further contended that: if the doctor conducting the Post-
Mortem examination is dead or is not available for being examined in Court
under the circumstances mentioned in Section 32 of the Evidence Act,
the Post-Mortemreport is admissible under clause 2 of Section 32 of
the Evidence Act. In view of this legal position, he contended that the mere
marking of the Post-Mortem report under Section 294 of Cr. P.C. will not
transform the report into a substantive piece of evidence until and unless
the doctor concerned has been examined in Court. According to the learned
counsel for the appellant, the Post Mortem reportbeing not a
substantive evidence, the mere marking of such document under Section
294 of Cr. P.C. even by consent will not make that report a
substantive evidence and hence it cannot be relied upon in the absence of
the evidence of the doctor to speak to the contents of the
PM report prepared by him.

8. They have relied upon the following decisions :

1. In the case of Jagdeo Singh v. State, reported in 1979 Cri LJ 236, the
Division Bench of the Allahabad High Court has held as under :

"A reading of Section 294 would reveal that it contemplates reading

in evidence, upon admission about genuineness by the opposite party, only
such documents which, when formally proved speak for themselves. It does
not refer to a document which even if exhibited, cannot be read
in evidence as a substantive piece. Post-mortem report by itself proves
nothing as it is not a substantive piece of evidence. It is only a previous
statement of the doctor based on his examination of the dead body. It is the
statement of the doctor made in Court which alone is the
substantive evidence. The post-mortemreport can be used to corroborate
the statement of the doctor concerned under Section 157 of
the Evidence Act. The doctor can also use it to refresh his memory
under Section 159 of the Evidence Act or it can be used to contradict his
statement in the witness-box under Section 145 of the Evidence Act. If the
doctor is dead or is not available for examination in Court under the
circumstances mentioned in Section 32 of the Evidence Act,
the postmortem examination report is admissible under Clause (2)
of Section 32 of the Evidence Act.

7. In the case of K. Pratap Reddy v. State of A.P., reported in 1985 Cri LJ

1446, the Division Bench of the Andhra Pradesh High Court has observed
as under :

"Sections 293 and 294 of the Code are obviously intended to slim the
proceedings by dispensing with elaborate and sometimes long drawn
procedure of examining the concerned person when the genuineness of
document is not in dispute. The refrain from such procedure is not invariable
and the Court is empowered to examine depending upon the circumstances
and expediency. In the instant case, the report of the Deputy Controller of
Explosives is taken as evidence as the Court did not consider it necessaiy to
examine the expert in view of express consent of accused for reception of
the report. Similarly post mortem report is admitted as evidence as no
exception is taken for reception of the same. Section 294, Cr. P.C. empowers
Court to admit the document as evidence in the situation embodied
in Section 294 Cr. P.C. namely, when no objection is taken as to the
admission of the document by either side and when it is not possible to
examine the person connected with the document. Both these requirements
have been satisfied as there was no objection for the admission of the
document and further the doctor who conducted the post-mortem was laid
up in the hospital. The trial Court is justified in admitting the report of the
Deputy Controller of Explosives and post-
mortemreport as evidence without insisting upon the evidence of expert
or doctor."
Shaikh Farid Hussinsab vs The State Of Maharashtra on 9 February, 1981
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
investigation 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 to do so
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 to liable to be waived as of any other document.

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
unexceptional. This is precisely what appears to have mainly weighed with the learned Judges
deciding Ganpat Raoji's case 1980 Cri LJ 853 (Bom) and the cases of two other High Court's
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.

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 evidenceunless 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, S. 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 authentic by the author or anybody else, by force of S. 294 on its conditions being
complied with. S. 510 of the repealed Code (corresponding to S. 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 author as on the efficacy of the mechanical
process through which the concerned data is collected. S. 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 par and are receivable in evidence without anything 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.

State vs Gian Singh on 13 October, 1980

Author: C Talwar
Bench: A B Rohatgi, C Talwar

JUDGMENT Charanjit Talwar, J.

1. The facts, so far as they are relevant for the decision of this petition, are stated in my order
of July 29, 1980, by which I had referred the case to a larger Bench. Before analysing the rival
contentions, the two questions, which were formulated for considerations, may be noted :

"First - Whether the post-mortem reports and the medico legal examination report are public
documents, and, Second - Whether the accused are entitled to receive copies of the public
documents on which the prosecution is relying during investigation of the case."

2. Bawa Gurcharan Singh, learned counsel for the respondent, has fairly conceded before us
that the accused would be entitled to copies of those documents during investigation of the
case only if the documents are held to be public documents. He, therefore, limited his
arguments to the first question. Mr. Dinesh Chand Mathur learned counsel for the petitioner,
besides controverting the submission on that question, urged that even if the documents are
held to be so, the accused-respondent is not entitled to receive copies of the same till such time
a report under S. 173 of the Code is filed by the prosecution. He further submitted that in any
case the learned Magistrate was incompetent to direct the Investigating Agency to supply
copies of those documents as he was not the custodian of the original three reports, two post-
mortem reports and one medico-legal examination report, which contain the observations as
well as the opinion of Dr. Bharat singh, the police surgeon who performed the autopsy. It is
the admitted case of the parties that the original reports were forwarded by the police surgeon
to the Investigating Officer and they continue to be in his custody. According to Mr. Bawa,
the reports of Dr. Bharat Singh squarely fall within the purview of S. 74 of the Evidence Act.
The post-mortem was conducted by Dr. Bharat Singh in his capacity as a public officer and
his reports recording his findings or observations are a record of that official Act. The
documents are thus covered by Clause (iii) of sub-section (1) of S. 74 which reads as under :-

"74. The following documents are public documents :-

(1) Documents forming the acts, or records of the Acts - (i) of the sovereign authority.

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive, of any part of India or of the
Commonwealth, or of a foreign country;

(2) Public records kept in any State of private documents."

The contention of Mr. Bawa is that the investigation of the case is supervised under the Code
by the Magistrate and therefore, the above reports, which are ex facie public documents as
per Section 74, are within his overall control and custody. He is, therefore, empowered to direct
supply of certified copies of the same.

3. To appreciate the submissions made by the learned counsel for the parties, the provisions
enabling the Investigating Officer to seek post-mortem report may be noticed.

4. Under S. 174 of the Code an officer in charge of a police-station or some other police-officer
specially empowered by the State Government in that behalf, on receipt of information that a
person has died under suspicious circumstances, is duty bound to give intimation of this fact
to the nearest Executive Magistrate empowered to hold the inquest, and on reaching the spot
he is obliged to draw up a report describing the injuries found on the body. The report, which
is to be made in the presence of two or more inhabitants of the neighborhood, has also given
apparent cause of death and the weapon or instrument by which the injuries were caused. This
report is to be submitted in a prescribed form as per the provisions of Rule 25.35 of Chap.
XXV of the Punjab Police Rules, 1934 (Vol. III).

5. The object of S. 174 of the Code is merely to ascertain the cause of death. The inquiry at
that stage is to be confined for that purpose. Under sub-section (3) of S. 174 of the Code when
there is a doubt as to the cause of death or where the police-officer otherwise considers it
expedient to do so, the body is to be forwarded for post-mortem examination to the nearest
Civil Surgeon or other qualified officer appointed in this behalf by the State Government. The
authorised medical officer, after examining the body and conducting the autopsy, is to fully
record the result of his external as well as internal observations. The observations have to be
recorded in the form prescribed by the State Government. As per Punjab Police Rule 25.47 the
duty is cast upon the Medical Officer to give his detailed opinion. The rule reads as under :

"25.47. (1) The medical officer having completed his examination of the person, body, or
article shall record in full the result arrived at, and in the case of a post-mortem examination,
his opinion as to the cause of death. He shall also record a list of any articles which he may
intend to send to the Chemical Examiner. The report shall be written on the back of, or attached
to, form 25.39 (1) and shall contain such reference to the person or object examined as will
leave no possible doubt as to which case the remarks apply.

The report shall be placed with the police file of the case and may be used by the medical
officer to refresh his memory when giving evidence."

6. Mr. Mathur submits that the post-mortem report, which has been prepared by Dr. Bharat
Singh in the present case, was merely a step in investigation to enable the Investigating Officer
to ascertain the cause of death. The above quoted Punjab Police Rule clearly shows that the
report is to be kept on the police file, the intent being that it is confidential as long as the
investigation is in progress. The argument is that only in the event of it being relied upon by
the prosecution, a copy of it is mandatory to be supplied to the accused as per the provisions
of S. 207 of the Code. The learned counsel further submits that the reports of Dr. Bharat Singh
are not admissible in evidence except for the purpose of contradicting him, although under
sub-rule (2) of the Punjab Police Rule 25.47 he is permitted to use it for refreshing his memory
while giving evidence. Another aspect put forth is that as the post-mortem report is not covered
by the provisions of S. 293 of the Code, it cannot, therefore, be tendered in evidence. Section
293 relates to reports of certain Government Scientific Experts obtained by the Investigating
Agency during the course of investigation which reports can be used as evidence in any inquiry
or trial under the Code. Sub-section (4) of that Section confines (to) the report made by :

(a) any Chemical Examiner or Assistant Chemical Examiner to Government;

(b) the Chief Inspector of Explosives;

(c) the Director of the Finger Print Bureau;

(d) the Director, Haffkeine Institute, Bombay;

(e) the Director, of a Central Forensic Science Laboratory or a State Forensic Science
Laboratory;

(f) the Serologist to the Government.

Dr. Bharat Singh the Police Surgeon, admittedly does not fall in any of the above categories.
His report, therefore, cannot be used in evidence in any inquiry, trial or other proceedings
under the Code, so urges Mr. Mathur.

7. Mr. Bawa, the learned counsel for the respondent, however, submits that an Executive
Magistrate, a judicial officer, is empowered to hold inquest as contemplated under S. 174 of
the Code. The inquest report drawn up by the police-officer and the report of the post-mortem
which is either to be written on the back of that report or is to be attached with it, vide Punjab
Police Rule 25.47, have to be produced before him. The inquest proceedings, according to him,
are judicial proceedings and the accused, therefore, is entitled to the inspection of the inquest
report as well as the post-mortem report. As such, he has a right of obtaining a copy thereof
on payment of requisite fee even during the investigation of the case. He has referred to various
provisions of the Code under which the Investigating officer is to submit to the Magistrate the
result of his investigation. The contention is that the report, made pursuant to the issuance of
search warrants, forms part of the judicial file and, therefore, is a public document as envisaged
under Section 74 of the Act. Similarly, he says that post-mortem report since it is to be
produced before a magistrate ought to be deemed to be a public document. It is further
submitted that it is not the mode of proof of a document which makes it a public document.
The mode of proof is not a test to determine whether the document is a public document. If the
document is a public document as provided in Section 74 of the Evidence Act, the accused are,
ex facie, entitled to its inspection and as such can get a copy of the same. The authority cited
on behalf of the petitioner , State of Madras v. G. Krishnan) in support of the contention that
the accused is not entitled to a copy of a public document on which the prosecution is relying
during investigation, is sought to be distinguished by Mr. Bawa on the ground that the said
case is to be confined only to the statements recorded by a Magistrate under S. 164 of the Code.
Mr. Bawa submits that keeping in view the policy of the Legislature that the statement of a
witness recorded under S. 161 of the Code can only be used to contradict a witness when he
appears in the witness-box, and for no other purpose and that the accused are entitled to its
copy only if the prosecution cites the maker of it as a witness, the statement recorded under S.
164 of the Code, which has been recorded by a Magistrate while performing his judicial
functions, cannot also be made public during investigation of the case. The Investigating
Agency may or may not rely on the statement of that witness. Mr. Bawa, however, submits
that on the petitioner's own showing a copy of the injury report including the post-mortem
report are to be provided on payment of requisite fee to the Insurance Companies, or the
victims or the dependents of the deceased, as the case may be, as per the order of Commissioner
of Police passed on August, 14, 1980. The plea is that by virtue of the said order the dependents
of the deceased can get a copy of the post-mortem report during investigation of the case, the
accused ought not to be deprived of the same. According to him, he said order (A copy of
which has been placed on the record by the learned counsel for the State), makes it clear that
the post-mortem and/or the injury report are public documents.

8. In my view, the plea being put forth on behalf of the respondent that the post-mortem report
and the injury report are public documents is misconceived. A bare reading of the provisions
of S. 174 of the Code and the relevant Punjab Police Rules shows that the post-mortem report
is obtained by the investigating Officer during investigation of the case to find out the cause
of the death. The inquiry as contemplated under S. 174 of the Code so not to be extended for
the purpose of finding out the person who caused the death. The post-mortem report is to form
a part of the police file. Although this file is to be produced before the Magistrate at the time
of remand, yet the report of the Medical Officer forming part of it cannot be made public by
the Magistrate. The contention of Mr. Bawa that as the post-mortem report is to be shown to
the Magistrate, it, therefore, becomes a part of the judicial record and as such he is empowered
to permit inspection of the same is without any merit.

9. As a rule the post-mortem report is bound to contain the opinion of the Medical Officer. He
is to opine whether the injuries were post-mortem or ante-mortem; he is to state the
approximate time of death. Invariably he must mention the kind of weapon which was used in
causing the injuries. In the printed form prepared as per Punjab Police Rule 25.39, three facts,
on which the medical officer must give his opinion, have been enumerated in column 4. Those
are :-

"(a) As to the means by which the injuries were caused.

(b) In the case of injuries, poisoning not causing death, the extent of the injuries or sickness,
and, in the latter case, the nature of the poison ascertained or suspected.

(c) In the case of death - (1) whether death by violence is ascertained and cause of death, and
(2) whether death is suspected from poisoning, the poison ascertained or suspected.' In my
view the post-mortem report, as contemplated by the said Rule, is a report by an expert. I agree
with the rule laid down in Abdul Halim Khan v. Saadat Ali Khan, AIR 1928 Oudh 155,
wherein it is observed that "when a Civil Surgeon reports to a Magistrate he is merely giving
his expert opinion and is not making a record of his 'Act' in official capacity for the use of the
public. It is only his act of making a record in such a capacity that would be considered to be
an 'Act' within the meaning of S. 74." In the present case the opinion of the Medical Officer
contained in the post-mortem report is only to aid the Investigating Officer in investigation.
The report cannot be held to be a record of Medical Officer of his official "Act" for the use of
the public. It is well settled that the post-mortem report or an injury report is not substantive
evidence. It has to be proved by the maker of it. It cannot, therefore, be termed as a public
document as envisaged under S. 74 of the Evidence Act.

10. I hold that the respondent is not entitled, during the investigation of the case, to either
inspect or obtain copies of the said post-mortem reports or the injury report. The order of the
Commissioner of Police referred to by Mr. Bawa is of no help to the respondent as by virtue
of the same it cannot be held that the documents referred to in that order are public documents
within the meaning of S. 74 of the Evidence Act. The underlying idea of the said order appears
to be to make it easier for the Insurance Companies or the victims or the dependents of the
deceased to obtain the copies of those documents without undue delay. The concession has not
been made available to the accused by the Cr.P.C.

11. Accordingly, the petition is allowed and the order of the learned Magistrate passed on June
30, 1980, is set aside.

12. Petition allowed.