When the Autopsy Speaks but the Doctor Does Not: Why Bangladesh Must Not Let a Medical Report Convict Without Cross-Examination.

A medical report can be the most persuasive witness in a criminal trial. It does not hesitate. It does not change its statement. It quietly records the number of wounds, their direction, the possible weapon, and the probable cause of death. The person who prepared that report may never enter the courtroom. Section 509 of the Code of Criminal Procedure, 1898 in Bangladesh permits the deposition of a medical witness to be recorded before a committing Magistrate and used at trial even when the doctor is not called as a witness. The court may summon the doctor if it thinks fit.  This provision saves time, but it creates a dangerous possibility. A piece of paper may become the foundation of a conviction without questioning the person who wrote it. That possibility should concern not only Bangladeshi lawyers. It concerns every legal system that uses expert medical evidence while claiming to guarantee a fair trial.

A report records findings but cannot defend them:

A post-mortem report or injury report contains observations. It may state that death resulted from asphyxia caused by strangulation or that injuries were ante-mortem and homicidal. Bangladeshi courts routinely rely on such reports. In a death-reference case, the Supreme Court recorded a doctor’s opinion that death was caused by manual strangulation. A report does not explain itself. It cannot say whether the injuries match the eyewitness account. It cannot clarify whether an alternative medical explanation exists. It cannot respond when the defense says that the report was incomplete or prepared without proper examination. This is why the doctor matters. Medical conclusions are interpretations based on observation and professional judgment. International research on medical expert witnesses emphasizes that experts must be able to explain their reasoning and be challenged when their conclusions may affect a criminal verdict.  A report without its author is therefore not a complete piece of evidence; it is evidence awaiting explanation.

The Constitution does not allow silent conviction:

The Constitution of Bangladesh guarantees an accused person a speedy and public trial before an independent and impartial court under Article 35(3).  Article 27 guarantees equality before law.  These guarantees mean that the State must prove its case through evidence that the accused can meaningfully test.

International law reinforces the same principle. Article 14 of the International Covenant on Civil and Political Rights protects the right of an accused to examine witnesses against them.  The UN Human Rights Committee explains that this right is essential to equality of arms and a fair hearing.

Bangladesh is a party to the ICCPR.  Therefore, Section 509 cannot fairly be used as an automatic rule that doctors need not appear. It must be treated as a limited exception that gives way whenever fairness requires the doctor’s presence.

When should the court summon the doctor?

The answer is not that every doctor must attend every trial. That would make criminal proceedings slower without necessarily making them fairer. The proper test is whether the medical evidence is material and disputed. A court should require the doctor to appear when the medical report may affect the verdict or sentence. This includes cases where the defense disputes the cause or timing of injuries; where the report conflicts with eyewitness testimony; where the report is incomplete; where the prosecution relies on it to prove murder, rape or grievous hurt; or where the accused reasonably seeks to question the doctor.

Bangladeshi law already gives courts the power to do this. Section 540 of the CrPC allows a court at any stage to summon a person as a witness if their evidence is essential to a just decision.  Section 505 also recognizes examination and cross-examination of witnesses through a commission.  Thus, the law does not treat medical reports as unquestionable. The problem is that courts do not always use this power consistently.

Why questioning the doctor protects everyone:

Allowing the doctor to be questioned does not weaken the prosecution. It strengthens the integrity of the trial. If the doctor confirms the report, the prosecution gains credibility. If the doctor explains a limitation in the report, the court avoids treating an uncertain opinion as conclusive proof. If the report was defective, the court would prevent a possible miscarriage of justice. Research on forensic evidence warns that expert testimony must rest on sufficient facts and have confidence in reliable reasoning rather than professional authority alone.  Studies on adversarial trials similarly note that medical experts may face pressures affecting objectivity, but that questioning remains an important safeguard against unreliable evidence.  At the same time, scholars caution that questioning alone cannot repair weak forensic material, which makes judicial scrutiny even more important. In short, the doctor’s presence protects the accused from untested evidence and protects victims from convictions built on fragile proof.

Bangladesh needs a clear judicial practice:

Bangladesh should not abolish Section 509. The provision has a legitimate purpose in a system where courts are overburdened, and medical professionals are scarce. But the phrase “if it thinks fit” needs a disciplined meaning. When the prosecution seeks to rely on a medical deposition, the trial court should ask three questions. First, is the medical evidence disputed or merely formal? Second, can it materially affect conviction, acquittal, or sentence? Third, has the accused had a real opportunity to challenge it?

If the evidence is disputed and material, the doctor should be summoned. If the State claims that attendance is impracticable, the court should record reasons and consider alternatives such as video-link testimony or examination through commission. The official Bangladesh Code already contains the framework for depositions and commissions.  What Bangladesh needs is consistent judicial practice rather than a new law.

Justice cannot be read from paper alone:

A medical report may describe a wound, but only the doctor can explain its meaning. When that meaning can decide whether a person walks free or enters prison, the doctor’s absence is not a neutral procedural choice. It becomes a risk to accurate and fair adjudication. Bangladesh should keep Section 509 but apply it with caution. The rule should be clear: where medical evidence is material and disputed, the doctor must be heard. Otherwise, the criminal justice system risks allowing a document to do what the Constitution, international law, and forensic fairness require a witness to do.