1. The two appellants have been convicted of the murder of one Sinne Goundan on the 4th March last, and have been sentenced to death.
2. The case for the Crown is that the man was murdered by the appellants near a hut in some cotton fields where the three had gone that night to watch their crops. All three men were cultivators.
3. It is common ground that the two appellants called for the deceased at his house that evening, about 9 O'clock, to accompany them to the fields, and that he went away with them.
4. In consequence of information given to the Police by the two appellants at 5 O'clock next morning, a constable arrived upon the scene and found the dead body of Sinne Goundan lying in the cotton field, about 50 or 60 feet away from the hut. It was also seen there by the village munsif P.W. 9 who arrived later.
5. But an extraordinary thing happened at the trial. We are told that the medical witness, who had made a deposition before the committing Magistrate, was present in court. But the Public Prosecutor asking the defence advocate if he wished to examine this witness, and the defence advocate aswering in the negative, the witness was not called. The result was that no evidence was given at the trial with regard to the injuries received by Sinne Goundan, or to the cause of death, or whether the injuries received by him were responsible for death. Section 509 Criminal Procedure Code is not intended to be applied where the medical witness is present in court, and it does not even appear that his deposition to the Magistrate's Court was given in evidence. It is an elementary rule, that except by a plea of guilty, admissions dispensing with proof, as distinguished from admissions which are evidential, are not permitted in a criminal trial. (See Phipson on Evidence page 19). Therefore, no consent or admission by the prisoner's advocate to dispense with the medical witness could relieve the Prosecution of proving by evidence the nature of the injuries received by the deceased and that the injuries were the cause of death. The consequence was that an essential element of proof of the crime alleged against the two accused was wanting, and the conviction which has taken place in the absence of this evidence cannot stand.
6. The learned Sessions Judge referred to the autopsy made upon the body as establishing beyond doubt that the man was murdered. But a post mortem report proves nothing. It is not even evidence, and can only be used by the witness who conducted the post mortem inquiry as an aid to memory. These propositions have already been stated in Queen Empress v. Jadub Das (1899) 10 L.W. 140. The question is whether a retrial should be ordered or whether, acting under Section 428 Criminal Procedure Code, we should direct the medical witness' evidence to be taken. The second Course would obviously be the preferable one. But as we have come to the conclusion that the other evidence in the case is so unsatisfactory that it leaves considerable doubt of the guilt of the two accused, there is no necessity to call for the medical evidence to be taken.
[After dealing with the other evidence and rinding that it was not sufficient to support the conviction, their Lordships concluded].
7. We accordingly allow the appeals, set aside the conviction, and direct that the appellants be set at liberty.