CHAPTER – III

POSITION OF MEDICAL EVIDENCE

IN COURT PROCEEDINGS

3.1 Advisory Character

Expert evidence in a criminal trial would be just a fraction of the totality of the
evidence on the appreciation of which the judge takes decision. The Court takes into
account all the other evidence at hand along with the opinion of the scientific expert,
which is just one piece of evidence required to be taken into consideration and
appreciated for its evidentiary value.

An expert witness is not a witness of fact. His evidence is really of an advisory

character. The duty of a medical witness is to furnish the judge with the necessary
scientific criteria for testing the accuracy of the conclusions so as to enable the judge
to form his independent judgement by the application of such criteria to the facts
proved by the evidence of the case.

Ordinarily medical evidence is corroborative evidence. Medical evidence alone will

not convince the Court beyond reasonable doubt that a particular person is guilty of a
crime. Where the medical evidence describes the injuries and the same corroborated,
the former can be relied upon -

This was clearly summed up by Justice Monir (as he then was) in his principles and
Digest of the Law of Evidence where he states that ‘when a medical person is called
as an expert, he is not to witness the facts, because his evidence is not direct evidence
of how an injury in question was done. He gives his opinion only on how that, in all
probability was caused. The value of such evidence lies only to the extent it supports
and lends weight to direct evidence of eye-witnesses or contradicts evidence and
removes the possibility of the injury in question and could take the manner alleged by
the witness.

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Although the substantive evidence case is that of the eyewitnesses who have seen the
incident, expert evidence has corroborative value. The prosecution on medical
evidence (which is consistent with eye-witness testimony) to corroborate the
eyewitness account that the injury places in a particular manner. The medical
evidence used to discredit the witness account and to show that they could not
possibly have been caused in the manner alleged by the prosecution.

In the instant case Pratap Mishra V. State of Orissa61 according to prosecution, the
incident of rape took place and the prosecutrix was produced before the doctor on
next day i.e. about 18 to 19 hours after the incident. Thus, the possibility that the
sexual intercourse may have been examined with the prosecutrix even before 24 hours
but more than 18 to 19 hours before she was produced before the doctor cannot be
ruled out. Therefore, it is evident that the doctor who has examined the victim is in a
best position of depose about the medico legal aspect of the offence committed on the
victim.

In Gafur Shaikh V. State62, the post mortem report is used by the doctor who
conducted the post-mortem examination for the purpose of refreshing his memory as
permitted by law while giving evidence in Court. No evidence has been laid in this
case to show that the post-mortem report was being pondered in evidence under any
of the relevant provisions of Chapter II of the Evidence Act. The Judge has erred the
law in treating the post-mortem report as substantive evidence in this case without any
foundation having reason for applicability of any of the relevant provisions of Chapter
II of the Evidence Act.

In the case of Balwant Singh V. State of Punjab63, the prosecutrix has stated that all
the appellants committed rape on her. Whereas, as per medical evidence, it is not
possible to say about the number of persons committing rape on the prosecutrix. It
was contended that since according to medical evidence there was no injuries on the
back of prosecutrix raped by four persons would be ruled out. But, Court repelled the

61
AIR 1977 SC 1307
62
1984 Cri. L. J. 559 (Cal)
63
AIR 1987 SC 1080

42
contention and has held that the absence of injuries on the back of the prosecutrix or
any part of her body, does not falsify the rape.

In Fakir Mohamed Ramzan V. Emperor64, it was pointed out that the numerous
decisions in which it had been held that Courts ought not to rely upon the evidence of
an expert alone, went further than was justified. It was pointed out in that case that a
Court should be careful not to delegate its authority to a third party and should itself
be satisfied that the accused was guilty, and not hold him guilty merely because an
expert comes forward and says that in his opinion that the accused was guilty.

It becomes necessary in each and every case where the expert evidence is admitted to
check and counter-check it by producing the expert witness before the court. Without
examining the expert witness, his evidence may become inadmissible.’65

3.2 Data Evidence and Opinion Evidence

In the case Ram Deo Chauhan V. State of Assam.66, the doctor had opined the age of
the accused to be admittedly more than 20 years an less than 25 years. The statement
of the doctor is no more than an opinion; the Court has to base its conclusions upon
all the facts and circumstances disclosed on examining of the physical features of the
person whose age in question in conjunction with such oral testimony as may be
available. An X-ray ossification test may provide a surer basis for determining the
age of an individual than the opinion of a medical expert but it can by no means be so
infallible and accurate test as to indicate the exact date of birth of the person
concerned. Too much of reliance could not be placed upon textbooks, on medical
jurisprudence and toxicology while determining the age of an accused. In this vast
country with varied latitude, heights, environment, vegetation and nutrition, the height
cannot be expected to be uniform.

64
AIR 1936 Bom. 151
65
Thanawalla Hanishi K. (1996) , “Development and Liberalisation of Hearsay doctrine”, Journal of
the Indian Law Institute, Vol 38.1
66
AIR 2000 SC 2231

43
In Annakodi V State of Madras67 case , the father of girl deposed that his daughter
was about 13 years or age. However according to radiologist, who conducted
ossification test she was between 17 and 18 years of age.

In the case Systolic laboratories (Pvt) Ltd. V. Prem Gupta & Others68, the decision
clearly gives the answer on the question whether the findings of the expert body in
technical and scientific matters can be interfered by the court. The court mentioned
as, ‘we must express our inability to make an assessment about the relative merits of
the various studies and reports which are placed before us. Such an evaluation is
required to be done by the Govt. while exercising its powers on the basis of expert
advice. And it cannot be said that the medical experts in clinical medicine were not
associated in the Expert committee for evaluation of the material that was furnished
by the manufactures.’

In Akhil Bharat Gosewa Sangh V. State of Andhra Pradesh / State of Karnataka69,

with various other issues under Environment Protection Act and Mysore Presentation
of Cow Slaughter and Cattle Prevention Act, it was discussed under Art 226 and Art.
32 of the constitution for permission to run slaughter house as-

That the appellant sought to challenge the veracity and correctness of the figures
given in the report of Central Govt. as in the Quinquennial census.

In the court’s view this submission is devoid of merit. It is now well settled by
various decisions of the Supreme Court that the findings of expert bodies in technical
and scientific matters would not ordinarily be interfered with by courts in the exercise
of their power under Art. 226 and Art. 32 of the Constitution.

Opinion Evidence
The Rule of accepting medical evidence -
Medical evidence is opinion evidence. Sometimes it may happen that such an opinion
points out total improbability of a certain event and at the same time direct evidence is

67
1995 Cri. L. J. 3387
68
AIR 1994 SC 160
69
AIR 2006 SC 1832

44
showing that the event actually happened. Now, as per the general rule, direct
evidence is always admissible this rule will not be made applicable Direct evidence
may be discarded on the basis of opinion evidence. Where the direct evidence is
doubtful and it is improbable because of the expert evidence then also the Court may
not accept the both.

It means that the expert evidence though valuable, though scientifically proved to be
correct, it always should go hand in hand with other type of evidence.

It has been observed in Milkiyat Singh V. State of Rajasthan70 as follows –

“In this state of evidence, specially the medical evidence, it is difficult to hold with
any certainty that the occurrence had taken place in the way the prosecution witnesses
allege. From the medical evidence it is difficult to reach a firm conclusion that the
defense version is altogether false. In these circumstances, Court do not find it safe to
maintain the conviction of the appellants. The court, allow the appeal, set aside the
conviction of the appellants and the sentences passed on them and acquitted them of
the charges framed against them; they are on bail, the bail bonds furnished by them
are discharged.”

There is a line of thinking that it is too much for the judges to be able to appreciate
scientific methodology and some sort of specialized set up to deal with the
admissibility of scientific evidence should be set up to improve scientific
adjudication. Introducing a separate set up specially for evaluating the testimony or
scientific expert may carry with it the drawback of interference with the judicial
process of decision-making. The Judges are experts, by virtue of their calling, in
appreciating evidence including expert evidence. The authenticity of the expert
evidence, its genuineness and relevance can be appreciated by the Court alone and the
expert’s opinion, which is subject to cross examination during the court proceedings,
can be tested and appreciated by the Court for its evidentiary value without resort to
any complex system of setting up different forums for dealing with the admissibility
of scientific evidence. The judges, especially of the Higher Courts, are well equipped
to train themselves by seeking proper assistance from the relevant material to be able

70
AIR 1981 SC 1579

45
to appreciate the methodology of any new scientific tools of investigation and
evaluate the results in the context of the other evidence of the case.

3.3 Correctness of Opinion based on Reasoning

The most extra-ordinary events occur in medico-legal practice and a careful
evaluation be always made to ensure that dogmatic statements by medical witnesses
should not mislead the courts. The medical witness should not be dogmatic about his
opinion, and the lawyers should not expect him to do so. They should be reasonable in
their opinions and should not overstate the likelihood of a relationship between cause
and effect. The doctor should be ready to defend every finding and conclusion on the
report on clinical & scientific grounds.71

The problem here is that the judge has to decide where medical experts specialized in
the field disagree. The whole object of the expert is to tell the judge, not facts of the
specific case, but general truths from his specialized experience. But how can the
judge decide between two statements, each founded upon an experience foreign to his
own? It is because they need assistance with the task, that the expert is necessary in
the first place. Even when two proposition not in direct conflict, the real recon grace
which may lurk between them bestowed, save upon one familiar with whole line of
experience to which the long; and when the conflict in direct open, the absurdity of
our present is apparent. The evidence of experts is essentially weak evidence. The
evidence of a medical expert is his personal opinion of a fact situation (which he may
not even have observed) and even a renowned expert can make a miscalculation or
error. All human judgment is fallible. An expert may make an incorrect finding
because of some defect of observation, some error of premises or an honest mistake of
conclusion. Not only is human knowledge imperfect, but also medical science is not
an exact science and it is impossible for a doctor to enumerate the exact details of a
crime with absolute certainty. New and previously not observed medical phenomena,
which hitherto were not considered possible and therefore not on record, are
continuously becoming known.72

71
Parekh & Singh (2007), ‘Crime, Investigation and Medical Science’, 1st Ed., Dwewadi and Co.
Allahabad.,p.154.
72
id p.55 supra p.187

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If there is difference between medical evidence of two doctors, one of whom
examined the figured parson and the other conducted the autopsy on the injured
person after his death, as to the injuries, or the weapon used, or the time of infliction
of injuries, etc. the accused gets the benefit of doubt. Where the direct evidence is not
trustworthy, conviction may result on medical evidence, if that is trustworthy. An
expert witness may refer to books to refresh his memory, or to correct or confirm his
opinion (Section 159, I.E.A.) Books as such are not evidence, but if an expert refers to
specific passages as representing his views they may be taken down as his own
evidence. A witness may adopt the views of the authority as his own provided he has
an honest belief in them.73

It cannot be said that the opinion of these authors were given in regard to
circumstance exactly similar to those which arose in the case now before the Court
nor is this a satisfactory way of disposing of the evidence of medical expert unless the
passages which are sought of discredit his opinion are put to him. The Court
disapproved of Judge drawing conclusion adverse to the accused by relying upon such
passages in the absence of their being put to medical witnesses. This view is
expressed in the following cases –

State of Madhya Pradesh V. Sanjay Rai 74 -

Though opinions expressed in text books by specialist authors may be of considerable
assistance and importance for the Court in arriving at the truth, cannot always be
treated or viewed to be either conclusive or final as to what such author says to
deprive even a Court of law to come to an appropriate conclusion of its own on the
peculiar facts proved in a given case. In substance, though such views may have
persuasive value cannot always be considered to be authoritatively binding, even to
dispense with the actual proof otherwise reasonably required of the guilt of the
accused in a given case. Such opinions cannot be elevated to or placed on higher
pedestal than the opinion of a medical witness examined in Court and the weight
ordinarily to which it may be entitled to or deserves to be given.

73
id p.55 supra p.194
74
AIR 2004 SC 1919

47
The only circumstance which the trial Court relied upon to hold guilt was by referring
to some textbooks on medical jurisprudence. With reference to them it was held that
case of strangulation was clearly made out.

It cannot be said that the opinions of these authors were given in regard to
circumstances exactly similar to those which arose in the case now before us nor is
this a satisfactory way of dealing with or disposing of the evidence of an expert
examined in this case unless the passages which are sought to relied to discredit his
opinion are put to him.

“Though opinions expressed in the text books assistance and importance for the
Court, in arriving at the truth, yet they cannot be treated or viewed to be either
conclusive or final as to what such author says to deprive even a Court of Law to
come to an appropriate conclusion of its own on the peculiar facts of a given case. In
substance, though such views may have persuasive value, yet they cannot be always
considered to be authoritatively blinding, even to dispense with the actual proof
otherwise reasonably required of the guilt of the accused in a given case.”75

3.4 Admissibility of Evidence

According to S. 294 of Criminal Procedure Code, where the genuineness is not
disputed, such document may be read in evidence. It means, that it is not necessary to
examine the witness to prove the contents of the documents and so in this case the
report of the Inspector is admissible.

S. 293 of Criminal Procedure Code expressly mentions categories of persons who

have to be present in the court with their report and must be examined. But, otherwise
it is the discretion of the Court to summon the expert or not.

It means that medical witnesses report cannot be discarded on the basis of non-
examination of the medical witness.

75
Ratanlal & Dhirajlal (2006), ‘The Law of Evidence’, 20th Ed , Wadhwa, Nagpur, p.715

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In Phool Kumar V. Delhi Administration76, Supreme Court particularly stated that the
accused to file an application for summoning and examining the expert if he wants to
challenge the report on the granting of the application, the court can summon the
expert. If the application has not been filed by the accused, the accused cannot take
the objection, that the report of the expert is being used without his examination in the
court. Generally, the doctor who gives post-mortem report is taken as a witness. But
sometimes there is a possibility that the doctor who had conducted autopsy over dead
body was not examined.

Here, the court as evidence is accepted or discarded is dependent decides the

admissibility of such report.

In Debi Prasad Panda V. State of Orissa77, the doctor giving the report was not
examined. Summons was issued & letters were sent to authorities to procure his
attendance; but he never attended the court. With the consent of the advocate of both
the parties post-mortem report was marked as exhibit. It was held by the Court that as
no prejudice had been caused to the accused, post mortem report was admissible as
evidence.

In Suresh V. State of M.P.78, it is interesting to note how the medical evidence is

useful in convicting the accused. The doctor in this case recorded dying declaration,
treated the patient before death gave ante-mortem report and after her death gave post
mortem report. It means that the doctor followed her duty and used her expertise to
assist the Court at a great extent.

The prosecution case was that Lacchibai was the mistress of the appellant and they
had been living together for a period of 15/16 years. There used to be frequent
quarrels between them. It is not disputed that the appellant’s married wife was living
separately from him. In the night of June 8, 1983 there had been a quarrel between the
appellant and Lachhibai. On the next day, that is, on June 9, 1983 at 10.45 a.m. the
appellant poured kerosene oil on her and thereafter set fire to her with the help of a

76
AIR 1975 SC 128
77
2003 Cri. L. J. 105 (Ori)
78
AIR 1987 SC 860

49
lighted matchstick, inconsequence of which the whole body of Lachhibai got burnt
externally. She was removed to the hospital at the instance of Station House Officer,
Manohar Lal Bhandari (P.W. 10).

Dr. (Smt.) Asha Bharagava (P.W.1) examined Lachhibai and found that the whole of
her body had sustained hundred percent burns of second degree. She was conscious
but her condition was serious. At the request, Dr. Bhargava recorded her dying
declaration. In her dying declaration it was stated by Lachhibai that after a quarrel the
appellant had poured kerosene oil on her and burnt her. At about 12.45 p.m. she
succumbed to her injuries on the same day. The post-mortem examination was also
conducted by Dr. Bhargava and she found that Lachhibai died on account of hundred
percent burns of second degree. In her opinion, these burns were ante-mortem and
were sufficient to cause death. After the conclusion of investigation, the appellant was
prosecuted on a charge under Section 302, I.P.C. for murdering Lachhibai.

The defense of the appellant was that as he had married one Sharadabai, the deceased
used to quarrel with him in order to severe his relation with Sharadabai on the threat
of committing suicide and false implication. It was alleged by him that in the morning
of June 9, 1983, he was at the radio shop of his friend, Ramesh (D.W.1), and on
information given to him by one Raj Bhanwar that Lachhibai has sustained burns, he
had reached home and found Lachhibai lying in an unconscious burnt state.

The only point that has been urged by the counsel appearing on behalf of the appellant
is that the dying declaration which was recorded by Dr. Bhargava should not be relied
upon in as much as at the time when the dying declaration was stated to have been
recorded by her, Lachhibai was sinking and was unable to make any statement.
Court’s attention has been drawn by the counsel to the post-mortem report of Dr.
Bhargava. It is submitted that in view of the serious injuries sustained by Lachhibai
on account of the burns, she must be in an unconscious state at the time her dying
declaration was stated to have been recorded.

Dr. Bhargava had examined Lachhibai. According to her Lachhibai was in a fit state
of health to make a declaration. Indeed, her evidence is that when she recorded the
dying declaration of Lachhibai, she was capable of deposing and was in her senses.

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She further stated that when she was recording her dying declaration. “She had started
going into coma."

The 1st Additional Sessions Judge and the High Court have believed the evidence of
Dr. Bhargava and have placed reliance upon the dying declaration in convicting the
appellant. Courts do not find any reason not to believe the evidence of Dr. Bhargava.
In the circumstances, in view of the Courts that the Courts below were justified in
convicting the appellant under Section 302 of I.P.C. No other point has been urged on
behalf of the appellant.

In another case, the circumstance of violent death of the deceased who was hale and
healthy when her husband left the house is a circumstance which points at the accused
as the only person who did this job only to get some money for his gambling. It has
come in the evidence that even the ornaments like Karimanisar, havaladasaras and
gold bangles which were always worn by the deceased were missing at that time. The
evidence of witness coupled with the circumstance of violent death of the deceased in
her house and then missing of some of her god ornaments are enough to lead to the
inference that it is the accused who had done this heinous offence of murdering his
mother-in-law. There is evidence to show that the accused was absconding after the
incident she did not see her husband. The deceased was none other than the mother-
in-law of the accused. If the accused was innocent, he would have certainly attended
the funeral of his mother-in-law. The Serologist’s report is to the effect that M.O., the
shirt of the accused was stained with B group blood and the clothes of the deceased
were also stained with ‘B’ group blood. Therefore, this piece of evidence is also
proved that the accused shirt which was found in the suit case in his house and which
was handed over to the police by Gopala Bhat was stained with ‘B’ group blood,
which was the blood group of the deceased. This had happened because the accused
had committed the offence wearing that shirt and before leaving the house, he had
kept that shirt in the suit case. Otherwise, if he had gone wearing that shirt, he would
have incurred the danger of being apprehended as the blood-stains on the shirt would
have attracted the attention of the people.

The Courts to make it clear that even if this circumstances is excluded from
consideration, the other circumstances that have been considered above are more than

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enough to prove the guilt of the accused for the offence punishable under Section 302,
I.P.C.

This decision given in N. Rajendra Prasad V. State Of Karnataka79. 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 experts opinions which have been offered.

In the case Mayur Panabhai Shah V. State of Gujrat 80, where a doctor has deposed
in Court, his evidence has to be appreciated like the evidence of any other witness and
there is no irrefutable presumption that a doctor is always a witness of truth. The case
was not a case which should have been summarily rejected by the learned Judges and
moreover, it is impossible to think that the learned Judge was right in observing that
“Our Courts have always taken the doctors as witness of truth”.

In Daubert v. Merrell - Dow Pharmaceuticals Inc.81, required judges to undertake

independent legal fact-finding and reach conclusions of evidentiary reliability and
sufficient based on the judgments and criticisms passed by the scientists through
institutional mechanisms, such as peer review, created by the scientific community.
The court believed that the Judges possessed the capacity to undertake such review. In
Daubert, the Court identified several factors that may bear on the determination of
admissibility of scientific evidence. These include: (i) whether a theory or techniques
can be or has been tested; (ii) whether it has been subjected to peer review and
publication; (iii) whether a techniques has a high known or potential rate of error and
whether there are standards controlling its operation; and (iv) whether the theory or
technique enjoys general acceptance within a relevant scientific community.

79
1996 Cri. L. J. 257 (Kar.).
80
AIR 1983 SC 445
81
509 U.S.579

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