MEDICAL EVIDENCE

Medical evidence is only corroborative evidence and it is not substantive evidence.

Importance of Medical Evidence
The purpose of expert evidence is to aid the investigation and prosecution of an accused.
With the help of such medico-legal evidence, in case of rape, it would be possible to
determine whether a sexual activity occurred or not. The sexual assault or rape occurred or
not can be understood with the help of medical examination only. When the accused is
examined or when more than one suspect is examined, it becomes easy to identify the
assailant. Though the law may not take into consideration how much resistance was there on
the part of the victim. However, to understand whether the consent of the victim was given or
not, the use of force by the accused or resistance by the victim can be established in the
medico-legal evidence. More particularly, in the case of drug-related violence, the medical
evidence can be used to indicate an inability to consent due to the influence of alcohol and
drugs.
An Expert will have to frequently give evidence to prove the innocence or guilt of the
accused or to authenticate or disprove a criminal charge of assault, rape, or murder brought
against an individual. Expert evidence consists of the doctor’s report of the examination,
reports of the ballistics, firearms, or fingerprint experts or reports of the chemical examiner
and serologist, and the doctor’s oral evidence or other expert’s oral evidence.
The expert’s evidence adduced by the prosecution has great corroborative value. It proves
that the injuries could have been caused in the manner alleged and 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 eyewitnesses should not be believed.
The defence can make use of expert evidence to prove that the injuries could not possibly
have been caused in the manner alleged or that death could not possibly have been caused in
the manner alleged by the prosecution and if it can do so, it discredits the eyewitnesses.
However, it is not always necessary to discredit oral testimony if it conflicts with medical
evidence. It depends on the quality of the respective evidence.1
Oral evidence has to get primacy in cases of conflict/variance between medical and ocular
(eyewitness) evidence since medical evidence is basically opinionative.2
Expert evidence has never been considered to be substantive evidence of the charge but has
been accepted as corroborative of the charge. Expert evidence is usually opinion evidence.
The evidence of a medical man, or other skilled witness, however eminent, as to what he
thinks, may, or may not have taken place under a particular combination of circumstances,
however confidently he may speak, is ordinarily a mere matter of opinion.
A doctor’s evidence cannot always be the last word on what he meant by implicit acceptance.
There is no irrebuttable presumption that a doctor is always a witness of truth and evidence of
1
State of MP v. Dharkole, (2004) 13 SCC 308, Rai Saheb v. State of Haryana, 1994 SCC (Cri) 239.
2
Ramanand Yadav v. Prabhu Nath Jha, (2003) 12 SCC 606.
a doctor has to be examined, analyzed, and tested in the same manner as that of any other
witness, keeping in view only the fact that he has some experience and training in the nature
of the functions discharged by him.3
In State of Haryana v. Ram Singh,4 it was held that while it is true that the postmortem report
by itself is not a substantive piece of evidence, but the evidence of the doctor conducting the
postmortem can by no means be ascribed to be insignificant. The significance of the evidence
of the doctor lies vis-à-vis the injuries appearing on the body of the deceased person and the
likely use of the weapon and then it would be the prosecutor’s duty and obligation to have the
corroborative evidence available on record from the other prosecution witnesses.
When a medical witness is called in as an expert, he is not a witness of fact. Medical evidence
of an expert is evidence of opinion, not of fact. Where there are alleged eyewitnesses of
physical violence which is said to have caused the hurt, the value evidence by prosecution is
only corroborative. It proves that the injuries could have been caused in the manner alleged
and nothing more.
In Santa Singh v. State of Punjab,5 the prosecution case was that the accused who had a rifle
with him shot at the deceased from the back. According to the medical evidence, the shot was
fired from a very close range of about 9 inches and a yard or a yard and a half, but according
to what was shown to the draftsman by the eyewitnesses, the rifle was fired from a range of
about 25 feet, justice Chandrashekhara Aiyar who delivered the majority, opinion held that in
the face of medical evidence, the testimony of the eyewitnesses could not be safely accepted.
An expert witness who performs a postmortem examination is a 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, it is also independent testimony because
it may establish certain facts quite apart from the other oral evidence. If a person is shot at a
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.6
Forensic medical experts increasingly tend to rely on non-medical ancillary investigations
provided mainly by laboratories, analysts, and serologists. Even though these specialists in
other fields quite rightly carry out their rests and deliver the results, it is still the doctor who
must interpret their findings in all cases where the medical aspects are in issue.
When a report is received from the chemical examiner containing quantitative analysis, it
should be shown to the medical officer who conducted the postmortem examination, so that

3
Main Pal v. State of Haryana, (2004) 10 SCC 692. This is because a doctor is not concerned as to who
committed the offense or whether the person brought to him is a criminal or an ordinary witness, his primary
efforts is to save the life of the person brought to him and inform the police in medico-legal cases.
4
AIR 2002 SC 620.
5
AIR 1956 SC 526.
6
Majindra Bala Mehra v. Sunil Chandra Roy, AIR 1960 SC 706.
he will be in a position to state before the committing magistrate what the medico-legal
inferences are to be drawn from the report.7
From the evidence on record, inferences are drawn as to the truth or otherwise of the
prosecution case in criminal matters, and the truth or otherwise of a claim in civil matters. In
this process, the medical evidence places a very crucial rule. If there is inconsistency or
discrepancy between the medical evidence and the direct evidence or between the medical
evidence of two doctors, one of whom examined the injured person, and the other conducted
postmortem on the injured person after his death or as to the injuries, or the weapon used, or
the time of the incident, then in criminal cases, the accused is given the benefit of doubt, and
let off. Where the direct testimony is found untrustworthy, conviction on sole medical
evidence can be done, if that is trustworthy. Conviction results, if the medical evidence
corroborate the direct evidence. So the fate of an accused hangs on the medical evidence,
whether it is a case of murder, rape, grievous injury, kidnapping, abduction. Even in dacoity
cases, injury reports and medical opinion determine to a large extent the court's opinion as to
the identity and use of firearms and other weapon of offence and their capacity to cause the
injuries found on medical examination and mentioned in the injury report.8
The evidence of a medical expert is merely an opinion which lends corroboration to the direct
evidence in the case. Omission of the doctor to mention a vital fact in his report, or the
omission of the prosecution to examine the doctor, where necessary, is often fatal to the
prosecution case, and the advantage of these omissions goes to the accused, who cannot, in
the absence of proof, be conducted. Where there was inconsistency between the injury report
and postmortem report, each prepared by a different doctor, the accused was accorded the
benefit of the doubt.
In State of UP v. Krishna Gopalan & Anr., 9 it was observed that it is trite that where the
eyewitness account is found credible and trustworthy, medical opinion pointing to alternative
possibility is not accepted as conclusive. Witnesses are the eyes and ears of justice; hence the
importance and privacy of the orality of the trial process. Eyewitnesses' account would
require a careful independent assessment and evaluation for the 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 probability of the story; consistency with the accounts of other
witnesses held to be creditworthy; consistency with the undisputed facts; the credit of the
witnesses; their performance in the Witness box; the power of observation, etc. Then the
probative value of such evidence becomes eligible to be put into the scales for a cumulative
evaluation.
Cases in which medical evidence is required
The following cases are to be considered as “medico-legal” and police notifications in all
these cases must be done. Where there is death/injury/debility/infirmity due to:

7
Happu v. Emperor, AIR 1933 All 837.
8
HWV Cox Medical Jurisprudence, 7th edition, 2002, p 4 3.
9
1989 CriLJ 288.
  Poisoning
 Injury with sharp object/fire-arms
 Tetanus
 Burns
 Drowning
 Death on the operation table or immediate postoperative death.
 Death injury in a woman within 7 years of marriage
 Conditions that require notification as per the laws for the time being in force.
 Any other conditions where there is a suspicion of some foul play
 Where the cause of death is not certain.

Witness
Types of witnesses:
Witnesses are of two types, namely, common and expert. A common witness is one who
testifies to the facts observed by himself. An expert witness is one who, because of his
professional training, is capable of deducing opinions and inferences from the facts observed
by him or noticed by others.
Expert evidence – sec 45
Opinion of Expert not Binding on Court: In the State of Haryana V. Bhagirath,10 the opinion
given by a medical witness need not be the last word on the subject. Such an opinion shall be
tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to
go by that opinion. Since opinion is what is formed in the mind of a person regarding a fact
situation, and if one doctor forms one opinion and another doctor forms a different opinion on
the same facts it is open to the judge to adopt the view which is more objective or probable.
Similarly, if the opinion given by one doctor is not consistent with probability the court has
no liability to go by that opinion merely because it is said by the doctor. Of course, due
weight must be given to the opinions given by persons who are experts in the particular
subject.
Evidence given by a witness in a previous judicial proceeding: Under section 33 of the Indian
Evidence Act, evidence given by a witness in a previous judicial proceeding or before any
person authorized by law to take it, is admissible as evidence in a subsequent judicial
proceeding or in a later stage of the same judicial proceeding, when the witness is dead or
cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse
party, or if his presence cannot be obtained without an amount of delay or expense which,
under the circumstances of the case, the court considers unreasonable; provided that the
questions in issue were substantially the same in the first as in the second proceeding and that
the proceeding was between the same parties or their representatives in interest. The adverse
party in the first proceeding was afforded an opportunity to cross-examine him.
Expert evidence on the side of the prosecution and the accused is equally balanced

10
AIR 1999 SC 2005.
Where the expert evidence on both sides is equally balanced, the benefit of doubt must be
given to the accused. In such a case, the Supreme Court, in the case of State (Delhi
Administration) v. Guljari Lal,11 refused to interfere with the order of the acquittal recorded
by the High Court.
Doctor as a witness:
On being called into the weakness box, the witness has to be administered the oath before he
tenders his evidence. The opinion of the doctor who is an expert must be supported by
reasons and it is the reasons and not ipse dixit which is of importance in assessing the merits
of the opinion. In the case of Paloniswami v. State,12 the opinion written was in the form of a
reply to certain queries made by the sub-inspector of the police. The doctor was not examined
in the case. The doctor's report was rejected as it did not contain reasons.
A medical practitioner is a common witness when he gives evidence us to the variety, size
and position of injuries, and is an expert witness when he mentions the nature of this injuries
as to whether they were caused during life or after death, whether they were accidental,
suicidal or homicidal and so on. The supreme court held that the expert must state essential
academic background, professional training and experience in the concerned subject. It is for
the court to decide the competence of witness as an expert if a dispute arises over
competency.13
A witness is considered 'adverse', 'hostile', or 'unfavourable' only when, in the opinion of the
court, he bears a hostile animus to the party calling him, if he does not give his evidence
fairly.
In Madan Gopal Kakkad v Naval Dubey,14 the Supreme Court held that a medical witness
called in as an expert to assist the court is not a witness of fact and the evidence given by the
medical officer is really of an advisory character given on the basis of symptoms found on
examination. The expert witness is expected to put before the court all materials inclusive of
the data which included him to come to the conclusion and enlighten the court on the
technical aspect of the case by explaining the terms of science so that the court, although not
an expert, make form its own judgment on those materials after giving due regard to the
expert's opinion because once the expert's opinion is accepted, it is not the opinion of the
medical officer but of the court.
Right to testify as an expert witness in medico-legal cases:
The Indian Medical Council Act, 1956 in Section 15(2)(C) states that no person other than a
medical practitioner enrolled on a state medical register shall be entitled to give evidence at
any inquest or in any Court of law as an expert under section 45 of the Indian Evidence Act,
1872 on any matter relating to medicine.

11
AIR 1979 SC 1382.
12
AIR 1968 Born 127.
13
Chand Batra v. State of Uttar Pradesh, AIR 1975 SC 139.
14
1992 SCC(Cri) 598.
A medical practitioner is neither a prosecution witness nor a defence witness, is only an
expert witness even though, he frequently appears on the prostitution side. Medical witness is
to be tendered within the limits of science to assist the court in determining the truth, so it
may or may not favour the prosecution or the party calling him.
Volunteering a Statement
It is said that a witness is not supposed to volunteer a statement in court, unless called upon to
do so. This may be true in the case of a common witness, but it cannot be so in the case of a
medical expert. If a party calls a medical witness to give evidence in court, he must not forget
his duty of honesty and fair dealing with the opposite party. He must also remember that the
judge regards him not as a medical advocate put forward by one side to established the case,
but as an officer of court to help the cause of Justice to arrive at truth. It is, therefore, the duty
of a medical witness to fairly state all the medical facts bearing on the case without any
reservation. Hence, it is proper for him to seek the permission of the court and volunteer
statements and suggest questions to court, especially when he finds that is a danger of Justice
being miscarried owing to the court having failed to elicit any important point.

Reference to Books on Medical Jurisprudence: 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
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. 15 Exceptional cases referred to in
the textbooks of medical jurisprudence cannot be relied against positive and clear evidence of
the case before the court.16 Where conflicting views have been expressed in different books
on medical jurisprudence, the conflict can be resolved by preferring the more specialized
book on the subject.17
In Mohd. Zahid v. State of Tamil Nadu,18 it was held that sufficient weightage should be given
to the evidence of the doctor who has conducted the postmortem, as compared to the
statements found in the textbooks, but giving weightage does not ipso facto mean that each
and every statement made by a medical witness should be accepted on its face value even
when it is self-contradictory.
Conflict in the opinions of two doctors
There could be situations that doctors' opinions themselves vary and the question could be
whose evidence the court will accept. In Majju v State of M.P.,19 the doctor who examine the
injured immediately after the occurrence and prepared the wound certificate, found an incised
wound on the head as likely to have been caused by a sharp-cutting weapon, whereas the
doctor Who conducted a postmortem examination stated that those injuries were caused by
some blunt weapon. The doctor who first examined the deceased described the nature of the
15
Kusa v. State of Orissa, AIR 1980SC 559.
16
Miglani v. Miglani, AIR 1979 SC 879.
17
Mahendra Manilal Nanavati v. Sushila Mahendra Nanavati, AIR 1965 SC 364, 380.
18
AIR 1999 SC 416.
19
(2001) 9 SCC 449
injuries which were fully in conformity with the oral evidence given by the eyewitnesses. The
reliance on his evidence, discarding the evidence of the doctor who performed post-mortem
was held by the Supreme Court to be appropriate. It is the right of the Court to act on the
testimony of one doctor rather than on the testimony of another. It can prefer to act on the
testimony of that medical officer whose evidence accords with the prosecution version. 20
In State, Govt of NCT of Delhi v. Sunil,21 the court resolved the conflict by observing that the
correctness of the postmortem report could not be doubted merely because it did not conform
to the noting made in the Medico-Legal Certificate by the doctor who had initially checked
up the deceased in the hospital without properly making any detailed examination and had
pronounced her dead.
Where Expert Evidence Deficient, Court can come to its own Conclusion: In an appropriate
case on a consideration of the nature of the inquiries and other relevant evidence, the court
can come to its own conclusion, if the medical evidence is deficient.22

Deposition/Statement of an Expert Witness taken in a Lower Court: Under section 291 of

the CrPC, evidence given by an expert witness in a Lower court is accepted in a Higher
Court, provided it is recorded and attested by a Magistrate in the presence of the accused, and
a certificate signed at the bottom of the deposition in the following form - "The foregoing
deposition was taken in the presence of the accused, who had an opportunity of cross-
examining the witness. The deposition was explained to the accused and was attested by me
in the presence of the accused."
Without this certificate, his evidence is not accepted in a Higher Court. Hence the medical
witness should himself see that the above certificate is written by the magistrate at the bottom
of his deposition, especially in those cases which are likely to be sent up for trial before a
court of session, if he wants to avoid the trouble of being summoned there. He is, however,
liable to be summoned in the case in which his deposition taken by the magistrate is
essentially deficient or requires further explanation or elucidation or on the application of the
prosecution or the accused.

Stages of evidence recording – OPTIOAL TO TEACH

Evidence is to be recorded in the following four stages:
1. Examination -in -chief;
2. Cross-examination;
3. Re-examination; and

20
Makan Jivan v. State of Gujarat, (1971) 3 SCC 297.
21
(2001) 1 SCC 652.
22
Brij Bhukhan v. State of Uttar Pradesh, AIR 1957 SC 474; Union Territory of Mizoram v. Vannallawanna,
1977 Cr LJ 1831 (Gau) (DB).
4. Questions put by the judge
Examination-in-chief: Examination-in-Chief is the first and the main examination of a
witness by the party who calls him. In government prosecution cases, as a rule, the public
prosecutor first examines the witness to elicit the principal facts concerning the case. If the
witness is summoned by a private party, he is at first examined by the pleaders of that party.
The objective is to place before the court, all the facts that have a bearing on the case, and if
the witness is an expert, his interpretation and opinion are based on these facts. In this part of
the examination, leading questions,23 i.e., questions which directly or indirectly suggest their
desired answers, are not allowed, except in those cases in which the judge is satisfied that a
witness is hostile and tries to conceal the facts. The court shall not permit leading questions as
to matters which are introductory or undisputed, or which have, in its opinion, been already
sufficiently proved: 'Did you or did you not see X striking Y with a stick on a certain
afternoon' is a leading question, as that suggests the answer 'yes'. It cannot, therefore, be put
to the witness. The proper form of the questions in a case of an assault is: ' When did this
incident occur? Where were you at that time? What did you notice? and so on. The witness
will narrate the whole incident of X striking Y as he saw it.
Cross-examination: Cross-examination in criminal trials may be regarded as the most
reliable procedure of testing the value of the evidence, and is conducted by the counsel for
the accused or when a witness is treated as hostile, by the person who calls the witness to
testify on his behalf. The main objectives of cross-examination are:
1. To elicit facts favorable to his case;
2. To test the accuracy of the statement made by the witness;
3. To shift, modify, or explain what has been said;
4. To discrete the witness; and
5. To remove an undue or unwarranted emphasis.
Cross-examination is useful to demonstrate the possibility of theories, and not necessarily
inconsistent with the evidence the witness has given, but helpful to his own case. In this
examination, leading questions are permissible and the witness should be very cautious in
answering them. He should not attempt to answer the questions, unless he clearly and
completely understands them, as the cross-examiner often tries every possible means to
weaken his evidence, thereby showing to the court that the evidence in question is conflicting
and not worthy of credence.
The witness may also be asked any question which tends to test his veracity, to discover his
knowledge, experience, and qualifications and even to injure his character. It must, however,
be remembered that the court can always forbid any question which appears to insult or
annoy, or which though proper in itself, appears to the court as needlessly offensive in form.24
In some instances, cross-examination acts as a double-edged sword, which cuts both ways,
i.e., it may damage the defence as much as, may, sometimes more than the prosecution,
especially if the Counsel is not familiar with medical science, and the witness happens to be
up-to-date in his subject, and at the same time honest and straight forward.

23
Section 141 of the Indian Evidence Act.
24
Section 152 of the Indian Evidence Act.
There is no time limit for cross-examination. It may last for hours or even days, although the
presiding officer can always disallow irrelevant questions and cut short the cross-
examination.
Re-Examination: The prosecuting counsel, who conducts the examination-in-chief, has the
right to re-examine the witness. The objective of re-examination is to explain any
ambiguities, or correct any mistake, or to clarify or amplify statements the witness has made
in cross-examination. However, the witness cannot introduce any new subject without the
consent of the judge or opposing Counsel, lest he should be liable to cross-examination on the
new point thus introduced. Leading questions are not allowed. Under section 311 of CRPC,
the court has the power to recall and re-examine any witness already examined, if his
evidence appears to the court to be essential to the just decision of the case.
Court questions: The judge or the presiding officer of the court can put questions to the
witness at any stage to clear up doubtful points.

Types of Medical evidence

Forensic evidence given before a Court of Law is of two forms: documentary and oral
1. Documentary Evidence
The documentary evidence is the evidence presented by the doctor, i.e.,
 a medical certificate including the physical and mental state of a person
 a medico-legal report
 a dying declaration
In the documented evidence, first, the physical injuries are taken into consideration. In the
case of rape, more particularly anogenital injuries as well as extra injuries (injuries on the rest
of the body) are examined properly. In other cases, only the victim is examined. In rape cases,
both the victim and the accused are examined. In the case of the victim, in the medical
examination, the age of the victim, marks of violence on the body, blood stains, virginity, and
depth of the injury, such factors are taken into consideration. The emotional state is also
examined. The victim may be in a depressive or maniac state. The intellectual state of the
victim may have been hampered. She may be suffering from illusions and hallucinations, and
sometimes her behavior may have become psychopathic. The mental state of the accused is
also examined. Sometimes it may happen that the accused wants to prove himself as an
insane person, which he may not be. He may be pretending to get exempted from the
punishment.
The samples and specimens are collected from bodies or clothing, including Seminal fluids;
Head hair, public hair; Blood examination; Bones and Debris
Medical certificate: A medical certificate is the simplest form of documentary evidence, and
generally refers to ill health, unsoundness of mind, and death. These certificates should not be
given carelessly, but with a due sense of responsibility for the opinion expressed in them.
They are not accepted in a court of law unless they are given by a duly qualified medical
practitioner who is registered under the State Medical Council Act.
Medico-Legal Report: Medico-legal reports are the documents prepared by medical officers
in obedience to a demand by an authorized police officer or a Magistrate and are chiefly
referred to in criminal cases relating to assault, rape, murder, and poisoning. These reports
consist of three parts namely:
1. Introductory or preliminary data, for example, full name, age, address, date, place,
and time of examination, including identity marks;
2. The facts observed on examination; and
3. The opinion or the inference drawn from the facts.
In order that they may be admitted as exhibits in evidence, these reports should be written by
the medical officer at the time of the examination or immediately afterward. They form the
chief documents in judicial inquiries and are likely to pass from the lower to the higher
courts, as well as to be placed in the hands of pleaders. Hence, utmost care should be taken in
preparing them. No exaggerated terms, superlatives, or epithets expressing one's feelings
should be used; they should not be judgmental.
After noting the facts accurately and in detail, the opinion should be expressed briefly and to
the point. The medical officer must remember that he should always base his opinion on the
facts observed by him and must not be influenced by the statements made by others. In
drawing conclusions in medico-legal reports, he should not depend upon information derived
from any other source. However, if these opinions tally with the information supplied, he
should say so in his report.
If it is not possible to form an opinion immediately after examining him, an inquiry case
should be kept under observation, and the facts notified to the police. A hasty opinion must
not be formed, even if pressed by the police.
A postmortem or injury report is a private document; it must be proved by the examination in
the court of the medical officer who conducted the postmortem or injury examination unless
the case falls under section 291 of CRPC, its genuineness has been admitted by the accused
under section 294 of the CrPC. Mere tender of postmortem report or injury report in evidence
is not enough.
The injury report or the postmortem report given by a doctor is not substantive evidence and
is inadmissible in evidence unless he is examined. If, however, the doctor is not available for
examination in court under the circumstances mentioned in section 32 of the Indian Evidence
Act, the injury report or the postmortem is admissible and relevant. It may be proved by
another doctor or the available compounder.25

25
Mohan Singh v. Emperor, AIR 1925 All 413 (DB).
Dying Declaration:
Examination of exhibits: Articles of clothing, and weapons sent for medical examination
must be described with full particulars to facilitate their identification later in the court. They
should be labelled with differentiating numbers or marks and returned to the Superintendent
of Police or Magistrate in a sealed cover, with one's private seal being used; the signature of
the person, usually the police constable, receiving them should also be taken. The articles
which are likely to be sent to the Chemical Examiner should be kept under lock and key in
the custody of the medical officer.
Chemical Examiner’s Report
Section 293 of the CRPC provides that a report to the government, signed by any chemical
examiner or assistant chemical examiner, upon any matter or thing duly submitted to him for
examination or analysis, may be admitted in evidence without requiring the officer concerned
to be examined in court to prove the report. 26 The court may, if it thinks fit, summon and
examine any such expert about the subject matter of his report.27
The serologist must also mention in his report about the blood group found on the article sent
to him for examination. Where reports of the serologist indicated that the shirt and dhoti of
the accused were stained with human blood, but did not mention the blood group, the
supreme court held that in the absence of the blood group in the serologist's report, it could
positively be connected with the deceased. The report and the evidence of the investigating
officer did not also show the dimensions of the blood stains. Few small blood stains on the
clothes of a person may even be his own blood especially if it is a villager's clothes. 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.28
Where blood was found on the Chaddi of the accused, recovered 10 days after the
occurrence, but the blood group of the stains on the Chaddi was not proved, it was held that
no reliance could be placed on it.29
In ordinary circumstances, there would have been nothing wrong in taking reports of these
persons on record as permitted by the Criminal Procedure Code. When, however, there is a
difference of opinion in the reports, the duty to explain the difference is on the prosecution
and the mere production of the report does not, under the circumstances, prove anything
which can weigh against the accused.30

When a certificate is acceptable to the Council without cross-examination

26
Rajesh Kumar and Anr. v. State Government of NCT of Delhi, (2008) 4 SSC 493.
27
S 293 of the Code of Criminal Procedure.
28
Kasna Behera v. State of Orissa, AIR 1987 SC 1507.
29
Rameshwar v. State of Rajasthan, 1980 Raj Cr C 127 (DB).
30
Tulsiram Kanu v. State, 1954 Cr LJ 225.
The Supreme Court, in Parmanand Katara v. Union of India,31 advised the lawyers to accept
the medical reports, and the judge to admit them in evidence, if both the lawyers were
satisfied about the veracity, and not to trouble the medical expert by unnecessarily
summoning him to the court for rendering the oral evidence. This is a step in the right
direction, as section 293 of the CRPC already confers such lenience to the personnel of
forensic science laboratories.
2. Oral evidence
Oral evidence must, in all cases whatever, be direct, that is, if it refers to a fact which could
be seen, heard, or perceived by any other sense, or in any other manner, it must be the
evidence of a witness who said he saw, heard or perceived it by that sense or in that manner;
if it refers to an opinion or to the ground on which that opinion is held, it must be the
evidence of the person who holds that opinion on those grounds. 32 If oral evidence refers to
the existence or condition of any material article other than a document, the court may, if it
thinks fit, require the production of such an article for its inspection. Oral evidence is more
important than documentary evidence since a person has to prove on oath or affirmation, the
documentary evidence supplied by him to the court, that it is true and correct and is in his
own handwriting. Exceptions to oral evidence are:
1. Dying declaration;
2. Expert opinions expressed in a treatise;
3. Depositions of a medical witness taken in a Lower court;
4. Chemical examiner's report;
5. Evidence given by a witness in a previous judicial proceeding;
6. When the certificate is acceptable to the Council without cross-examination.
Inconsistency between Direct Evidence and Medical Evidence
A glaring inconsistency between the direct evidence and the medical evidence with respect to
the entire prosecution case is a defect in a presentation case. Unless the medical evidence
goes so far that it completely rules out all possibilities whatsoever of injuries taking place in
the manners alleged by eyewitnesses, the testimony of eyewitnesses cannot be thrown out on
the grounds of inconsistency between it and the medical evidence.33
Ordinally when a witness says that a particular 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.
Where neither in the FIR nor in the statements recorded under section 161 CrPC, it was stated
that any of the assailants was armed with a spear, but the eyewitnesses at the trial stated that
the appellant-accused was armed with spear and he inflicted injuries with the same on the
deceased and one of the prosecution witnesses, whereas in the medical examination, the
incised wounds on the two victims were not punctured or piercing wounds, on charge of
murder, the accused was given benefit of doubt and was acquitted.34

31
(1989) 4 SCC 286.
32
Indian Evidence Act, Section 60.
33
Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484.
34
Mayappa Dhondanna Padeade v. State of Maharashtra, 1981 SCC (Cr) 790.
The mere probability stated by the doctor does not render the prosecution case doubtful.
The prosecution evidence showed that three separate blows were given to the deceased. The
medical officer who performed the postmortem 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 clear cut margins and such dimensions and other characteristics as those of the
external wound found by the medical officer on the head of the deceased. 35 The Supreme
Court held that the version of the prosecution witnesses with regard to the vital fact work was
inherently improbable and intrinsically incredible. The ocular account of the occurrence was
falsified by the medical evidence and the accused were acquitted.36
When there is a conflict between oral and medical evidence and there exists genuine doubt,
the accused is entitled to the benefit of the doubt and must be acquitted.37 [EXAMPLE - Thus,
where the prostitution witnesses stated that the accused person inflicted injuries by swords
and dharia on the deceased, but in the postmortem examination no incised wound was found,
the accused were acquitted.38
Where the medical evidence is such as to completely rule out all possibility that injuries had
been caused in the manner as alleged by the prosecution, such medical evidence is a very
important factor in assessing the testimony of eyewitnesses and in determining whether the
testimony of the eyewitnesses can be safely accepted.39
In Hulla v. State of Madhya Pradesh,40 the postmortem certificate revealed that on the body
of one of the victims, three bruises and a haematoma were found, on the body of another
victim, there were four lacerated wounds and two bruises. According to the prosecution
witnesses the two victims were attacked with lathis, spears, and axes, which was clearly
falsified by the medical evidence. The medical evidence was that none of the injuries found
on both persons could be caused by a spear or an axe. The Madhya Pradesh High Court
refused to attach any importance to this aspect of the matter by saying that the witnesses had
not stated that the miscreants dealt axe blows from the sharp side or used the spears as a
piercing weapon, and the spears might have been used from the blunt-side. On appeal, the
Supreme Court set aside the conviction in view of the conflict between medical evidence and
the evidence.

35
State v. Ratan Jit Singh, Jivanji Vaghela, 1984 (1) Cr LC 306.
36
Purshottam v. State of Madhya Pradesh, AIR 1980 SC 1873.
37
State of Gujarat v. Thakarda Mataj Thakarda Ruberji Kethaji, 1982 Cr LC 113 (Guj) (DB); Soundarapandi v.
State, 1983 LW (Cr) 92 (Mad) (DB).
38
State of Gujarat v. Thakarda Mataj Thakarda Ruberji Kethaji, 1982 Cr LC 113 (Guj) (DB).
39
Re Mandivalappa AIR 1966 Mys 142
40
AIR 1974 SC 1936.
If the evidence of the witness for the prosecution is totally inconsistent with the medical
evidence, it is a most fundamental defect in the prosecution case and unless reasonably
explained, it is sufficient to discredit the entire case.41
Medical expert evidence cannot override reliable direct evidence
If direct evidence is satisfactory and reliable, the same cannot be rejected on hypothetical
medical evidence.
In Maghar Singh v. State of Punjab, 42 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 rmerely a probability and it was not
fatal to the precipitation case.
In Babu Ram v state of Madhya Pradesh, 43 some transversely placed ligature marks found on
the front side of the neck at the level of thyroid cartilage about 3/4 inch wide. According to
the doctor Who conducted postmortem examination, first there must have been partial
strangulation and thereafter deceased might have been burnt or after the start of burning
deceased might have been strangulated or after she was burnt the deceased might have
survived for about an hour during which she was strangulated. The doctor was not sure what
exactly was the effect of the so-called ligature marks that were found on the body of the
deceased. His evidence is rather uncertain in terms since that evidence postulates more than
one possible circumstance. It also indicates that the deceased could have been conscious for
nearly an hour after she was burnt and also contemplates the deceased being strangulated as
she was being burnt. If this probabilities are analysed, it will be extremely difficult to accept
the prosecution case that there was strangulation by the appellant for the reason that if the
strangulation had taken place during the process of burning then the probabilities are that the
accused also would have some signs of burns on his hands, if not the burn injuries itself. But
that was not the prosecution case. It is also evident from the said doctor's evidence that there
was a possibility that the deceased might have survived for an hour after she was strangulated
but the other evidence adduced by the prosecution clearly goes to show that even though
there were neighbours in the proximity, nobody ever heard any shrieks from the deceased
during her alleged strangulation or burning. Therefore, the evidence of the doctor does not in
any manner support the prosecution case to prove beyond all reasonable doubt that the
appellant had caused the strangulation of the deceased. It was held that strangulation of
deceased by accused-appellant not established on the basis of evidence of the doctor.

Rules for giving evidence

41
Ram Narain v. State of Punjab, AIR 1975 SC 1727.
42
(1987) 2 SCC 642.
43
[2002] 4 LRI 948.
 1. While attending court duty, the medical practitioner should be well-dressed and
preferably wear a white apron since it helps the judge to identify him in the
courtroom. The judge, however, cannot compel medical practitioners to wear an apron
when they come to the court to give evidence. [Some of the judges of Tamil Nadu
refused to record the evidence of the doctors when they attended the courts without
wearing an apron and also declined to issue Court attendance certificates to those
doctors. The inconvenience caused to the doctors due to the aforesaid procedure
adopted by the presiding officers of the courts in Tamil Nadu was brought to the
notice of the High Court by the Director, Professor, and Head of the Department of
Forensic Medicine, Pondicherry for me. The aforesaid inconvenience experienced by
the doctors was considered by the full Court of Madras High Court and it directed that
all the judicial officers of the court in Tamil Nadu should not insist upon the doctors to
wear an apron when they appear in courts to give evidence.]44
2. When a doctor attends the court, he should address the judges by their proper titles. A
High Court judge is addressed as 'My Lord' and a District Court/ Sessions Judge as
'Your Honour'. It is not any longer necessary to address a High Court judge as ' My
Lord', after the resolution of the Bar Council of India passed on 9th April 2006 and as
per chapter III A, Part IV, Bar Council of India Rules read with Rule 99(1)j) framed
under the Advocates Act, 1961. The supreme court and High Court Judges could be
addressed as 'Your Honour' or ' The Honorable Court' and the subordinate Court
Judges as 'sir' or any other respectable equivalent term.
3. His evidence should be relevant, reliable, clear, honest and impartial. As far as
possible, he should give a definite opinion with reasons and avoid sitting on the fence.
The object of the medical evidence is to assist the court in determining the truth. The
medical witness, therefore, must remember that he is there to tell the truth, the whole
truth and nothing but the truth, and should, therefore, give it evidence irrespective of
whether it was likely to lead to conviction or acquittal of the accused.
4. He should speak slowly, distinctly, and audibly to enable the judge and Counsel to
hear him to take notes of his evidence. He should use plain and simple language to
avoid all technicalities.
5. He should avoid long discussions, especially theoretical arguments. His answer
should be to the point, brief and precise, and if possible, in the form of yes or no. [If
he does not know or remember any particular point, he should not be ashamed to say
so, and must not hazard a guess in a doubtful case. In addition, he should never
assume the function of the judge or jury by giving an opinion on the merits of the
case.]
6. He should remember that the lawyer has practically unlimited license and latitude in
putting questions to the witness in cross-examination, even attempting to browbeat or
giving a rough cross-examination. Consequently, he should never lose temper, and
should appear cool and courteous, even though questions of an irritable nature and put
to you.
7. Proper preparation before giving evidence is essential. The medical witness may
refresh his memory from his own report already forwarded to the court, but should not
44
ROC No. 1511/95/F1, Madras High Court, circular dated 7 September, 1995.
 do so from his private notes, unless they agree word to word with the original, were
made at the time of, or immediately after the occurrence of the event, and were
written by him or certified to the correct if written by his assistant. Besides, he should
be prepared to have them put in as exhibits if desired by the judge or counsel. After
the medical man who made the autopsy deposes as to its correctness, the postmortem
report becomes evidence. Not only can the report be used to refresh his memory of the
medical witness who made the Autopsy, but he can also be contradicted by it. He
should not quote the opinion of other medical men or quote from textbooks
concerning the case. He is required to express an opinion from his own knowledge
and experience.
8. The medical man should be fair and unbiased; concede points which should be
conceded and always have adequate reasons for the opinion given. When the Counsel
quotes a passage from a textbook and ask the witness whether he agrees with it, he
should, before replying, take the book, note the date of its Publication, read the
paragraph and context, and then state whether he agrees or not; as the counsel usually
reads only that portion which is favourable to his case, and the meaning may be
completely altered if the whole passage is read. In spite of this precaution, he is
entitled to hold his opinion if it is still his opinion, even if he finds that it differs from
the one expressed in the book. To avoid being surprised by such quotations, it is
advisable to study all the available literature on the subject before giving evidence in
court.
9. Professional secrets: Under Section 126 of the Indian Evidence Act, a lawyer can
claim privilege and will not at any time, be permitted to disclose in the court any
Communications made to him in the course and for the purpose of his employment as
such by his client, except with his express consent. The Common law accords
confidentiality of communication made by a patient to a doctor and even medical
ethics as an enunciated by the Indian Medical Council (Professional Conduct, and
Ethics) Regulations, 2002 extends this protection. Disclosure on public interest, such
as when the patient has AIDS may become necessary when information is sought by a
prospective bride or groom whether the patient has such communicable disease.
Under the English law, a medical witness, like any other witness in court, is
absolutely privileged, and not liable to any action with respect to his statement in the
Witness box. He is not compelled to answer questions which have a tendency to
expose him (or the wife or husband of the witness) to any criminal charge, for no one
is bound to incriminate himself and to place himself in peril. Under section 132 of the
Indian Evidence Act, a witness is not excused from answering any question upon the
ground that the answer to such question will incriminate, or may tend directly or
indirectly to criminate himself, but no such answer which he shall be compelled to
give shall subject him to any arrest or prosecution, or be proved against him in any
criminal proceeding, except a criminal proceeding for giving false evidence for such
an answer.