1. The learned Counsel for the Crown asks leave of the Court to treat the third prosecution witness, Anusuyabai, as a hostile witness, and to be allowed to cross-examine her by putting in a certain statement of the witness before the Coroner on January 28, 1926, at his inquest on the death of the accused's child. For permission to treat her as a hostile witness he relies, firstly, on the fact that she is related by marriage to the accused and lives with him as one of the family; and, secondly, that, as to who killed the child, she has in this Court made a statement far more favourable to the accused than her statement before the Coroner.
2. The learned Counsel for the defence objects on the ground that, on the whole, her evidence is not shown to be so favourable to the accused as to entitle the Crown to treat her as a hostile witness. The second ground is that the proceedings before the Coroner are not judicial proceedings in the same sense as the proceedings before the Committing Magistrate with the safeguard that the accused is present and has opportunity to cross-examine.
3. Under Section 8 of the Coroners Act IV of 1871, the Coroner's enquiry is a judicial proceeding within the meaning of Section 193 of the Indian Penal Code. Under Sections 19 and 20, witnesses must be sworn and their statements must be reduced to writing. Under Sections 145 and 155 of the Indian Evidence Act, it is not necessary, in order to make the previous statements admissible for the purpose of impugning the credit of a witness, that the accused should have an opportunity to cross-examine,
4. In the present case there is no question that the two state-ments differ on a very essential point-an all-important point- as to whether the witness did or did not see the accused himself as the person who kicked the deceased child. But in this case as there is a relationship between the witness and the accused, the Crown is, in my opinion, entitled to obtain the leave sought to cross-examine. On the question of the admissibility, as I have already said before, the statement is admissible under the Indian Evidence Act, and it will be for the jury, after they have both statements before them, to appraise and weigh each. I allow the contention of the Crown and give leave to the witness Anusuyabai being cross-examined on her statement and hold that her statement before the Coroner is admissible.
5. The point on which two learned Judges of this Court have differed in Emperor v. Kazi Dawood (1925) 28 Bom. L.R.79 and Emperor v. Ramnath Mahabir (1925) Bom. L.R. 111 is quite another point, namely, whether the statement on oath made by an accused before the Coroner is or is not admissible against him at the trial at Sessions. Anusuyabai was not an accused then, and is not an accused now. It is not, therefore, necessary for me to express my own opinion on the point on which my learned brothers are at variance. But in the. latter case the facts were peculiar. The Coroner did not wish to examine the suspect. The latter insisted on being sworn and tendering his statement. The principle of this decision is, therefore, not necessarily inconsistent with the principle of the former decision.