EMPEROR Vs. MAHOMED YUSUF

JUDGEMENT

(1.) THE point for decision in this case is whether the evidence of a witness who was called before the Coroner, who was enquiring into the death of a man with whose murder the accused is charged, can be taken in evidence in this Court under Section 33 of the Indian Evidence Act, the particular witness having died, and died prior to the enquiry before the Magistrate, so that he was not called before the Magistrate.

(2.) SECTION 33 provides that evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness (amongst other things) is dead; and then it is provided that "the proceeding was between the same parties or their representatives in interest". Then the explanation provides that a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section. In my opinion the inquiry before the Coroner, although it may be a judicial proceeding, is not a proceeding between the prosecutor and the accused. The proceedings before the Coroner are merely an inquiry into the circumstances leading to the death of the person whose death is under inquiry, and it is impossible to say that the Crown is a party to those proceedings, even if it can be said that the accused is a party on the ground that he was during those proceedings a suspect. In my opinion the evidence is not admissible.