M.C. Desai, J.
1. It is not necessary that before a person can be convicted under Section 323 or 325, I. P. C. there should be a first information report; therefore, even if the first information report was not proved in this case it would not vitiate the conviction. The doctor who examined the injuries of the prosecution witnesses was examined before the charge was framed and was also cross-examined at considerable length. After the charge the applicants were asked by the magistrate whether they wanted to cross-examine any of the prosecution witnesses. They simply answered 'yes'. Obviously the answer given was vague.
It does not necessarily mean that they wanted to cross-examine all the witnesses. Anyhow the doctor was summoned for cross-examination but he did not appear because he was transfered to another district and the magistrate ordered interrogatories to be issued for his examination on commission. The complainant failed to pay the fee for the issue of commission and no commission was issued. The magistrate however read the deposition of the doctor recorded before the charge purporting to act under Section 509(1) Cr. P. C.
It seems to me that what he did is covered by the language of Section 509(1) Cr. P. C. I was referred to Bharosey v. Emperor AIR 1947 Avadh, 41 in which it was held that when a doctor, who was examined before the committing magistrate, is produced at the trial before the Sessions Court, the deposition made by him m the court of the magistrate cannot be read as evidence under Section 509, Cr. P. C.
The reason given was that he was examined at the trial and, therefore, there arose no question of applying Section 509. This case was dissented from by the High Court of Lahore in Hasbmat v. Emperor, AIR 1947 Lah 377, in which it was laid down that having regard to the provision of Sub-section (2) of the section the deposition of a medical witness taken and attested by a Magistrate may be given in evidence at any trial even though the deponent has been called and examined as a witness. I prefer the view taken in the case of Hasmat AIR 1947 Lah 377 to the view taken in the case of Bharosey AIR 1947 Oudh 41.
It is important to note that the word used in Subsection (1) is 'although', and not 'if': 'If' introduces a condition, which must be fulfilled, while 'although' which means 'even if' makes the existence of a certain fact irrelevant. If it is irrelevant whether the deponent has been examined as a witness or not, the deposition can be given in evidence even if he has been examined as a witness. The main provison that the deposition may be given in evidence in any trial is unconditional and of general application; the clause 'although the deponent is not called as a witness' has been enacted simply to provide against fha plea that the deposition cannot be given in evidence if the deponent has not been called as a witness.
The language of the sub-section implies that the deposition can be given in evidence although the deponent has been called as a witness. Under Sub-section (2) the deponent may be summoned and examined after the deposition has been given in evidence. Nothing turns upon the relative order in which the deposition is given in evidence and the deponent is examined as a witness; if the deponent can be examined as a witness after the deposition has been given in evidence, there is no good ground for saying that if he has been examined as a witness the deposition cannot be given in evidence.
What is the use of the law laying down that ifthe deponent has been examined as a witness thedeposition cannot be given in evidence, if in practice one can always get round the law by first giving the deposition in evidence and then examining the deponent as a witness as permitted under Sub-section (2)? I would, therefore, hold that the deposition can be given in evidence even though the deponent has been called and examined as a witness. Even otherwise the present case is distinguishable from AIR 1947 Oudh 41. Here it can be said that the doctor has not been examined as a witness.
Because he was not recalled for cross-examination his evidence is said to be incomplete and, therefore, not fit to be treated as evidence given in the trial by a witness under Section 252, in other words, he is not to be treated as a witness examined under Section 252 and Section 509 will apply even if AIR 1947 Lah 377 were to be followed. Even if 'deposition' means evidence given in examination-in-chief and cross-examination, the doctor was cross-examined before the charge and that was done by way of right as held by this court in Banwari Lal v. State : AIR1956All385 and consequently his evidence is 'deposition' within the meaning of Section 509.
Denial of the right conferred by Section 256, which is that of only further cross-examination, does not deprive it of its character as 'deposition'. The deposition of the doctor was attested by a Magistrate in the presence of the accused. Any deposition of a medical witness can be given in evidence provided it was taken and attested by a Magistrate in the presence of the accused; no other condition is imposed and it is immaterial that the deposition was taken in the trial itself at an earlier stage.
2. On merits I am not at all satisfied that anycase for interference is made out. There was hardly any relevant fact to be ascertained from the doctor in his cross-examination. The revisional jurisdiction is discretionary and if justice has been done,it should not be exercised merely on the groundthat some provision of law was ignored or infringed.When nothing relevant was to be elicited from cross-examination of the doctor after the charge, his failureto appear for cross-examination must be treated asonly a technical defect.