- (1.)THIS is a reference to the full bench by the Division Bench of this Court involving a question of some legal importance as to the true interpretation of S. 294 of Cr. P. C. As the Division Bench of this Court in Crl. A. No. 338/99 (Boraiah alias Shekar v. State) was not in agreement with and did not propose to accede to the proposition of law laid down earlier by a Division Bench of this Court in the case of Anjinappa v. State of Karnataka, reported in ILR 2000 Kant 3501 and having been pursuaded to accept the view taken by the full bench of the Bombay High Court in the case of Shaikh Farid Hussinsab v. The State of Maharashtra, reported in 1983 Cri LJ 487 and being of the view that where the Post Mortem report is marked by consent and where its genuineness is not disputed, it is clearly admissible in evidence notwithstanding the fact that the author of the Post-mortem report is not called into the Court to give evidence, and moreso or especially where the defence has not chosen to cross-examine the doctor who conducted the post-mortem examination on the dead body of the deceased, has referred this question for decision or for resolution of the said legal issue by a larger bench under S. 10 of the Karnataka High Court Act and accordingly the matter is placed before this Bench.
(2.)HEARD the arguments of the learned Amicus Curiae for the appellant Sri Somashekar Angadi and the learned Addl. SPP Sri B. C. Muddappa as well as the learned advocates who were requested by issue of notice to assist this bench in resolving the issue referred by the Division Bench viz. , Sriyuths A. H. Bhagwan, S. G. Bhagwan, Hashmath Pusha and R. B. Deshpande. The said advocates effectively assisted this bench.
(3.)IT would appear from the case papers placed before this Bench that the earlier judgment of the Division Bench of this Court in the case of Anjinappa v. State of Karnataka, reported in ILR 2000 Kant 3501 was brought to the notice of the Division Bench of this Court hearing the Crl A. No. 338/99. The Division Bench of this Court hearing the said Crl. A. 338/99 did not share the view or did not propose to accede to the proposition of law laid down by the Division Bench in the case of Anjinappa v. State of Karnataka, reported in ILR 2000 Kant 3501 and on the other hand being pursuaded to accept the view taken by the full Bench of the Bombay High Court in the case of Shaikh Farid Hussinsab v. The State of Maha-rashtra, reported in 1983 Crl LJ 487, has observed as under :
"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. "