1. The following question has been referred to this Bench:
Whether the deposition of a medical witness taken and attested by a Magistrate in the presence of the accused may be given in evidence at the trial in spite of the fact that the deponent had been called as a witness before the statement is tendered in evidence
2. Section 509, Cr. P. C. lays down the rule that
the deposition of a Civil Surgeon or other medical witness, taken and attested by a Magistrate in the presence of the accused, or taken on commission under Chap. XL, may be given in evidence in any inquiry, trial or other proceeding under this Code, although the deponent is not called as a witness.
There has been some conflict of opinion on the meaning of, Section 509 on the question whether a deposition as mentioned in Section 509 can be admitted into evidence when the deponent is also called as a witness. In Rangappa Goundan v. Emperor AIR 1936 Mad 426(A), Cornish J. observed as follows:
Section 509, Criminal P. C. is not intended to be applied where the medical witness is present in Court.
In that case the medical witness was summoned and he appeared before the Court at the trial. He was produced only for cross-examination of the accused and the counsel of the accused declined to cross-examine him. The witness was, therefore, discharged. The statement of the medical witness recorded by the Committing Magistrate was also not tendered in evidence at the trial.
There was, therefore, no evidence on record whatsoever as regards the cause of death and the nature of injuries and it was in this context that the learned Judge made the aforesaid observations. The opinion of Cornish J. is obiter as no Statement of a medical witness having been tendered into evidence the question regarding admissibility of such a statement could not arise for determination. Further more, no reasons have been given in support of the opinion expressed by the learned Judge. The other case which lays down a similar rule is of Bharosey v. Emperor AIR 1947 Oudh 41 (B). In that case Kaul J. observed:
Section 509, Criminal P. C. is a special provision forming an exception to the ordinary rule of evidence that the statement of a person who is alive and is not called is not evidence. It was intended to be confined to cases in which a medical witness was not called at the trial. It cannot be extended to cases where the medical witness is called and examined.
The learned Judge, however, did not discuss the language of Section 509 in arriving at the conclusion that a deposition made by a medical witness earlier in the committing Court in the presence of the accused could not be admitted in evidence when the witness is called to appear. Even if Section 509, Criminal P. C. be regarded as an exception to the general rule contained in Section 33 of the Indian Evidence Act, it has to be given effect to in all cases falling within the scope of Section 509, and merely because it is construed to be an exception it would not be proper to interpret it strictly so as to exclude the depositions of medical witnesses in cases when Such witnesses are called to give evidence at the trial.
Answer to the question must, however, depend on an interpretation of the language of Section 509 rather than on the extraneous consideration that the provision of Section 509 is by way of an exception to the general rule of Evidence. Bapna J. in Gahar Singh v. The State, S. B. Criminal Appeal No. 133 of 1954, D/-18-1-1956(Raj)(C), has made certain observations in this connection which deserve to be considered. The learned Judge has observed:
I am not quite sure whether this procedure was correct. Section 509, Cr. P. C. permits the prosecution to give in evidence at the trial the statement of a medical witness recorded before a Magistrate in the presence of the accused, although such medical witness may not be called as a witness and administered an oath for the purpose of giving evidence, it is somewhat novel to tender his statement before the Magistrate in evidence and leave him in the witness box to stand any cross-examination.
Learned counsel for the appellants relied on AIR 1947 Oudh 41 (B), wherein Kaul J. held the evidence of the doctor before the Committing Magistrate to be inadmissible when the witness was called at the trial and examined with reference to some of the matters deposed to by him before the Committing Magistrate. On the other hand, the Assistant Government Advocate relied on Hashmat v. Emperor AIR 1947 Lah 377(D), where after the statement of the medical witness made before the Magistrate had been tendered, the Sessions Judge put a few questions to the doctor at the trial, and it was held that the procedure was permitted by Section 509 of the Code of Criminal Procedure.
The Lahore case is, however, distinguishable. In the present case the statement of the doctor was not tendered in evidence before the witness was called. The witness was called and given an oath, at the trial, and thereafter his statement was tendered in evidence. Ordinarily the evidence of any witness utilised by the Court for forming an opinion has to be received in Court at the trial.
In order, however, to obviate certain administrative difficulties, Section 509 makes an exception to this general rule and permits the evidence of a medical witness taken before a Magistrate to be received in evidence without the deponent being called as a witness. But when all that trouble and difficulty sought to be avoided by Section 509 is surmounted and the witness appears in Court and is given an oath us a witness, it passes comprehension why his previous statement only is to be tendered and his examination in Court is done away with.
3. It may be noted that the learned Judge was not sure as regards the correct view to be adopted on this point and he has only expressed his doubt for accepting the depositions of medical witnesses in evidence in cases when such witnesses are themselves called and produced at the trial. In AIR 1947 Lah 377(D), on the basis of the language of Sub-section (2) of Section 509 of the Criminal R C., it has been held that the intention of the legislature was to make the depositions of medical witnesses recorded in the presence of the accused to be made admissible even in cases when such witnesses were called and produced as witnesses.
Similar opinion has been expressed by Chopra J. in Jangir Singh v. State AIR 1951 Pepsu 111 (E). Section 509(2) provides that the Court may if it thinks fit summon and examine such deponent as to the subject-matter of his deposition. It is evident that a discretion has been given to the Court for summoning a medical witness and examining him even in cases where his deposition is admitted into evidence under Sub-section (1) of Section 509, Cr. P. C.
This shows that the fact that a witness is summoned and examined would have no bearing on the point of admissibility of the statement of such witness into evidence. The term 'although the deponent is not called as a witness', in our opinion, does not lay down a condition for making the earlier statement of such witness admissible but it only describes that even in cases where such witnesses are not called to give evidence their earlier depositions can be tendered into evidence.
These words have been used in the section to make it clear that it is not at all necessary to summon such witnesses to give evidence when their duly recorded depositions are available for being used as evidence. Though the object of Section 509 as pointed out by Bapna J. was to avoid the trouble and expense of producing medical witnesses before the Court, yet when the opinion of such a witness has already been recorded and an opportunity has been allowed to the accused to cross-examine him much useful purpose cannot be served by recording the same opinion over again even if the witness is summoned again.
Tendering of the earlier deposition might well save the time of the Court and of the parties as well. In the Lahore case this reasoning has been stressed while discussing the import of Sub-section (2) of Section 509. In cases where earlier depositions of medical witnesses are considered defective, it is, however, open to the Courts to resummon and examine them. The fact that such witnesses are summoned cannot affect the legality of admitting their earlier statements into evidence.
We do not think it would make any difference if the earlier deposition is brought on record before or after his statement, if considered necessary, is recorded at the trial. In either case the result would be the same. This would be so in view of the language of Section 509, Cr. P. C. Ordinarily, of course, statements of such witnesses are to be tendered in evidence and they are to be summoned if it is so required by the Court.
As a measure of precaution in serious cases the prosecution may procure the attendance of such a witness at the time of the trial in order to avoid the risk of adjournment and to save the time of the court so that if the court finds it necessary to examine such witness, he may be made available readily, without necessitating an adjournment of the trial, but this cannot have a bearing on the point of admissibility into evidence of earlier depositions of such witnesses. In our opinion, the opinion expressed in Hashmat's case AIR 1947 Lah 377(D), lays down the correct law.
4. The answer to the question, referred to above, is that the deposition of a medical witness taken and attested by a Magistrate in the presence of the accused can be given in evidence at the trial in spite of the fact that the deponent is also called as a witness before his statement is tendered in evidence,
5. Reference is answered accordingly.