THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No. 1819 OF 2003 ORDER: 1. This Criminal Revision Case is directed against the judgment dated 27.10.2003 in Criminal Appeal No.194 of 2001 on the file of the III Additional Sessions Judge, Tirupati, whereunder and whereby the conviction and sentence recorded in the judgment dated 2.8.2001 in C.C. No.55 of 2000 on the file of the Judicial Magistrate of First Class, Puttur were set aside and the matter was remanded to the trial Court to summon the Doctor G.Jayachandra and if he is not available, any other Doctor who assisted him or acquainted with his hand-writing and examine him, for proving Ex.P4-post mortem certificate. 2. The learned counsel for the revision petitioner/accused contended that Section 294(1) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) has not been followed by the prosecution, and therefore the genuineness of the document has not been admitted by the appellant. He further contended that the appellate court has no power to remand the matter under Section 391 Cr.P.C. Hence, he prays to set aside the impugned order. 3. Section 294 Cr.P.C. reads thus: “(1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. (2) The list of documents shall be in such form as may be prescribed by the State Government. (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed.” 4. The learned counsel for the revision petitioner relied on a decision in Erlapalli Prakasham v. State of A.P.,[1] wherein a learned single Judge of this Court held thus: (para 9) “It is clear from Section 294 Cr.PC that the documents have to be filed with a list before the Court either by the prosecution or by the accused and the pleader for prosecution or the accused has to be called upon to admit or deny the genuineness of each such document. When the genuineness is not disputed, such a document may be read in evidence in any enquiry, trial or other proceeding under the Code without proof of the signature of the person to whom it purports to be signed. But the Court is given power to insist upon proof of signature of certain contingencies. The contingencies for insisting on proof has been left to the discretion of the Court. Unfortunately, though this section has been introduced in the Code of Criminal Procedure, 1973, the Form under which the list of documents have to be mentioned is not prescribed by the State Government till now. This is the only provision which empowers the Court to dispense with the formal proof of certain documents before admitting them. The Court has to adhere to the provisions of Section 294 Cr.PC and mark the documents. The question of marking the documents by consent does not at all arise under the Criminal Procedure Code, since the valuable right of the accused will be taken away.” 5. But, a Division Bench of this Court in an unreported decision dated 27.06.2008 in Criminal Appeal No.1480 of 2005, held thus: “It is also a case where the Doctor was not examined to prove postmortem report. Therefore, from the above decision of the Division Bench of this Court, it is clear that when the document is admitted as evidence under Section 294(1) Cr.P.C. and no objection is taken as to the admission of the document, examination of the Doctor is not required. In the case on hand also, the postmortem report was marked by consent, as observed by the learned Sessions Judge. Therefore, in such circumstances, it is not necessary to examine the Doctor to prove the contents of Ex.P10.” Hence, the decision relied on by the learned counsel for the revision petitioner is no longer good law. 6. On this aspect, it is pertinent to refer to a decision in Aktar and others v. State of Uttaranchal[2] wherein it is held thus: “It has been argued that non-examination of the concerned medical officers is fatal for the prosecution. However, there is no denial of the fact that the defence admitted the genuineness of the injury reports and the post-mortem examination reports before the trial Court. So, the genuineness and authenticity of the documents stands proved and shall be treated as valid evidence under Section 294 of the CrPC. It is settled position of law that if the genuineness of any document filed by a party is not disputed by the opposite party it can be read as substantive evidence under sub-section (2) of Section 294 Cr.P.C. Accordingly, the post-mortem report, if its genuineness is not disputed by the opposite party, the said post-mortem report can be read as substantive evidence to prove the correctness of its contents without the doctor concerned being examined.” 7. In this case, the document was marked through the investigating officer. If the genuineness or correctness of the document was in dispute, the accused would have challenged the same. But, no challenge has been made with regard to genuineness of the document, and it seems no objection has been taken in the trial court when it is marked. It is observed by the appellate court that the trial court appeared to have marked Ex.P4 when the accused gave consent, by following the decision of this Court in Erlapalli Prakasham case (1 supra), set aside the judgment of the trial court and remanded the matter. But, the appellate court ought not to have remanded the matter when genuineness of Ex.P4 was not under challenge. No doubt, the case on hand does not come strictly under the purview of Section 294(1) Cr.P.C., but the document appears to have been marked through the investigating officer and at the time of marking of the document through the investigating officer, no objection has been taken. Therefore, it can be presumed that genuineness or correctness of Ex.P4 is not under challenge before the trial court. 8. The other contention raised by the learned counsel for the petitioner is that under Section 391 Cr.P.C., the appellate court has not power to remand the matter. Section 391(1) Cr.P.C. reads thus: “In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.” No doubt, Section 391 Cr.P.C. is not the correct provision. It deals with taking of additional evidence by the appellate court or its power to direct the court subordinate to it to do so. The correct provision is 386(b) (i) Cr.P.C. under which the appellate court has power, in case of appeal from conviction, to order for retrial. Therefore, none of the findings in the impugned order is shown to be illegal or improper. 9. The Criminal Revision Case is devoid of merit and is, accordingly, dismissed. ------------------- (K.C.Bhanu, J.) 15.12.2009 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No. 1819 of 2003 Date: 15.12.2009 Between: T.Mani …Petitioner And State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …Respondent THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No. 1819 of 2003 15.12.2009 [1] 2002(1) ALD (Crl.) 621 (AP) [2] 2009(2) ALD (Crl.) 522 (SC)