SUKHA SONIYA MINA Vs. STATE

JUDGEMENT

(1.) THE following question has been referred to this Bench:

(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:

(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 Subsection (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.