Norris and Gordon, JJ.
1. We are of opinion that this appeal should be allowed. As regards the charge under Section 363, Indian Penal Code, we think that the evidence as to the girl's ago is unsatisfactory and by no means sufficient to warrant the finding that she way under 16 years of age on 18th April last, the day on which it is alleged that she was kidnapped.
2. As regards the charge under Section 366, the only evidence of abduction is that of the girl herself, and looking at the palpable falsehood of her story of having been ravished by the prisoner and four other men, we do not think it would be safe to rely upon it.
3. In this connection we have to observe that the Sessions Judge ought not to have admitted the deposition of Dr. Kelly, the Civil Surgeon, taken before the Committing Magistrate, as evidence against the prisoner. To render the deposition of a civil surgeon or other medical witness admissible in evidence under Section 509, Code of Criminal Procedure, it must be shown to have been taken in the presence of the accused, and to have been attested by the Magistrate in his presence. The deposition in question is signed by the Civil Surgeon and by the Committing Magistrate, and it appears that the Civil Surgeon was cross-examined, but there is nothing on the face of the deposition to show that it was attested by the Magistrate in the prisoner's presence. No doubt this fact might have been proved by calling the Committing Magistrate or any other person who was present at the inquiry before him and able to testify thereto. In the case of Queen-Empress v. Riding I.L.R., 9 All. 720 the deposition of an assistant surgeon, signed by him and by the Committing Magistrate, was tendered in evidence on behalf of the prosecution under Section 509, Code of Criminal Procedure. Edge, C.J., refused to receive it. The learned Judge pointed out that 'under Section 509, Code of Criminal Procedure, it was essential that the deposition should have been taken and attested in the presence of the accused,' and he added, 'since the prosecution are bound to prove every step of the case against the prisoner before such a deposition can be admitted it must appear on the Magistrate's record, or must be proved by the evidence of witnesses, to have been taken and attested in the prisoner's presence.' The learned Judge's attention was called to Section 114 of the Evidence Act, and to illustration (e) thereto. That section says the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business in their relation to the facts of the particular case,' and illustration (e) is as follows:' The Court may presume that judicial and official acts have been regularly performed.'
4. Upon this the learned Judge observed 'that section did not direct the Court to presume the existence of facts likely to have happened, such as the regular performance of judicial acts, but left the Court free to make the presumption or not according to its discretion. This being a criminal case, in which, as he had said, the prosecution must prove every step of its case, he did not think it proper or expedient to act on a presumption that the requirements of Section 509, Code of Criminal Procedure, had been complied with.'
5. There is a reporter's note appended to that case which is as follows: 'Section 80 of the Evidence Act, under which the Court is bound, subject to certain conditions, to presume that evidence recorded by a Judge or Magistrate was 'duly taken,' was not referred to either in the argument or the judgment in this case; but it would doubtless have been held inapplicable. Though, as a general rule, all evidence must be taken in the presence of the accused, there is nothing in Chapter XXV of the Criminal Procedure Code or elsewhere which expressly requires a Magistrate to attest depositions in the accused's presence. Such attestation, therefore, does not fall within the scope of the presumption provided for by Section 80; and if required for any special purpose, such as that of Section 509 of the Criminal Procedure Code, must be established aliunde. Assuming the deposition to have been duly taken so as to be good evidence quoad the proceedings before the Magistrate, it could not be given in evidence at a further inquiry without satisfying the further condition of attestation in the presence of the accused, and there is no provision in the Evidence Act (apart from Section 114) under which the fulfillment of this condition could be presumed.' This view of the law does not appear to be correct. Section 80 of the Evidence Act is as follows: 'Whenever any document is produced before any Court purporting to be a record or memorandum of the evidence or of any part of the evidence given by a witness in a judicial proceeding or before any officer authorised by law to take such evidence, or to be a statement or confession by any prisoner or accused person taken in accordance with law and purporting to be signed by any Judge or Magistrate or by any such officer as aforesaid, the Court shall presume that the document is genuine; that any statements as to the circumstances under which it was taken purporting to be made by the person signing it are true, and that such evidence, statement, or confession was duly taken.' No doubt this section will be of no assistance in a case under Section 509, Criminal Procedure Code, where there are no 'statements as to the circumstances under which the deposition was taken purporting to be made by the person signing it,' but if the Magistrate records a statement at the foot of the deposition to the effect that the deposition was taken in the presence of the accused and was attested by him, the Magistrate, in the presence of the accused, and signs such statement, the Court would be bound to presume that such statement was true, and to admit the deposition under Section 509, Criminal Procedure Code. This is clearly the view of Edge, C.J., who says in Queen-Empress v. Pohp Sing I.L.R. 10 All. 174 where the reporter's note to Queen-Empress v. Riding I.L.R. 9 All. 720 is discussed.--'A Magistrate should take and attest a deposition in the presence of the accused, and should also, by the use of a few apt words on the face of the deposition, make it apparent that he has done so.'