P L, D 1962 Dacca 205 (PLP)

Mr. Abdus Salam Khan drew our attention more particularly to subsection (2) of section 509 of the Code of Criminal Procedure which reads as follows: "The Court may, if it thinks fit, summon and examine such deponent as to the subject‑matter of his deposition." It was argued that, once a Court summons a medical man under subsection (2) of section 509, his evidence cannot be received under the provisions of subsection (1) of the said section of the Code. In support of this contention, he has cited a number of decisions of this Court, to which we shall presently refer. The first of the cases, which were cited before us by Mr. Salam Khan, is the case of Mozaffar Sarkar and others v. The Crown reported in (2 D L R190). Ellis, J., in delivering the judgment of the Division Bench, has observed as follows at page 195 of the report: "Once again we have to draw the attention of a subordinate Court to the fact that in regard to this medical evidence he has made an improper use of the provisions of section 509 of the Code of Criminal Procedure. That section, as its terms show, clearly applies only when the Civil Surgeon or other medical evidence is not called as a witness in the Sessions trial. If the doctor is called as a witness in the Sessions Court then his evidence must be recorded in extenso just the same as the evidence of any other witness in the case and the Courts are not following the correct procedure when they lift the evidence given by the Doctor In the committing Court from the record and place it bodily in the Sessions Court under section 509 of the Code of Criminal Procedure." The next case is the case of The Crown v. Abdul Barik reported in {2 D L R 120). In this case as well, delivering the judgment of a Division Bench, Ellis, J., has observed as follows at page 123: "We drew the attention of the Subordinate Courts to the fact that section 509 of the Code of Criminal Procedure only applies if the Medical Officer concerned is not summoned as a witness in the Court of Sessions. If he is not summoned, then his evidence can be taken in under section 509 of the Code. If he is summoned, then the evidence under section 509 of the Code ought not to be put in and the Court should proceed to examine him regularly exactly as any other witness in the case." The next decision, of this Court is the case of Fazar and others v. Crown reported in (4 D L R 99). Here again Ellis, J., delivering the judgment of the Division Bench, has repeated his earlier observations at page 103 of t(se report as follows: "We have drawn the attention of Subordinate Courts that if the Medical Officer In question is summoned as a witness in the Court of Sessions then he must be examined just as any other witness is examined in that Court and his statement in the lower Court should not be put in under section 509 of the Code of Criminal Procedure. Section 509 was not designed for the convenience of indolent Sessions Judges but was designed in order to allow evidence given by Medical Officers to be put in at the trial in their absence." In the case of Sajaluddin Bepari v. The State reported in (9 D L R 225), Ispahanl, J. has expressed his opinion similar to that stated by Ellis, J., in the aforesaid cases. At page 226 of the report, he has observed as follows: "But if the Medical Officer is summoned as a witness, he must be examined as any other witness and his statement in the lower Court should not tie put in under section 509 by a Court of Sessions. From the aforesaid decisions Mr. Salam has argued that according to the decisions cited above the evidence of a medical man cannot be put in under section 509 of the Code of Criminal Procedure when the medical man is summoned to give evidence and that such reception of evidence would be illegal. We do not think that that is the decision of this Court. In none of the cases cited above, it has been held that it will be illegal to receive medical evidence under the provisions of the said section 509, if the medical man, whose evidence is sought to be so received, has been summoned to give evidence in Court. All that has been stated is that it is not desirable or proper that, if the medical man is summoned and available ire Court, the provisions of section 509 of the Code should not (sic) be utilised in order to save the prosecutor and the Court the trouble of examining the medical man in Court in the same manner as other witnesses in the case. It is certainly of the utmost importance that, if the medical man is easily available, or is in attendance in Court, he should be examined as a regular witness and normally his evidence should not be taken into the records of the Sessions Court by praying in aid the enabling provisions of section 509 of the Code. But this certainly does not amount to saying that, once a medical man is summoned to give evidence under the provisions of subsection (2) of section 509, his evidence cannot be received under the provisions of subsection (1) of the said section. This point was fully discussed and decided in a decision of a Division Bench of the Lahore High Court in the case of Hashmat and another v. Emperor reported in (A I R 1947 Lah. 377). The judgment was delivered by Falshaw, J., and Cornelius, J., (as he then was) concurred in that judgment. On this point Falshaw, J., observes at page 378 of the report as follows: "Before concluding, I should like to deal with a somewhat noval point which was raised by the learned counsel on behalf of Hashmat and Tufail accused. This was that there was no proper evidence on the record regarding the injuries of the deceased and the cause of his death. It appears that the usual procedure was followed in the present case, namely, that the doctor who conducted the post‑mortem on the deceased was fully examined in the Court of the committing Magistrate and his statement was placed in evidence on the Sessions file in accordance with the provisions of section 509, Cr. P. C. As, however, is the common practice in most districts, the doctor was also in attendance at the Sessions trial and a few further questions were put to him and his answers recorded as evidence by the learned Sessions Judge. It was contended by the learned counsel that as the doctor appeared as a witness in the Sessions trial he should have been examined in full again and his statement before the committing Magistrate was inadmissible and could not be read as evidence in the case. In support of his contention a recent decision of tile Oudh Chief Court reported as A I R 1947 Oudh 41 was cited In which a Single Judge had expressed the view that 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 is intended to be confined to cases in which a medical witness is not called at the trial and cannot be extended to cases where the medical witness is called and examined, and it was, accordingly, held that in such cases a post‑mortem examination report prepared by him and his deposition before the committing Magistrate based upon the report cannot be legally admitted in evidence and must be excluded from consideration. With all due respect to the learned Judge who has expressed this opinion, I cannot believe that this is a correct view in the light of the terms of section 509 itself It seems to me that subsection (2) clearly contemplates the treating as evidence in the Sessions case of the deposition of the medical witness before the committing Magistrate even in cases where he is again called and examined in the trial with a view to throw light on any doubtful parts of his previous statement, and it does not appear to me that there is anything in the section which can be held to justify the conclusion that where a medical witness is called as a witness in the Sessions trial it is necessary to discard his previous deposition and examine him afresh altogether. I thus consider that there is nothing illegal in the practice which has gone on for many years in this Province of transferring the deposition of the medical witness to the Sessions file and at the same time examining him again to clear up any doubtful points." We are in complete agreement with the observations of Falshaw, J., in the aforesaid case. It would appear that in the aforesaid case the medical man was, in fact, examined in the trial Court and his evidence in the Committing Court was also received into the records of the Sessions Court. In this case, however, the medical man was only summoned as a witness but, in fact, not examined. This does not make any difference whatso ever. It would not be correct to say that according to the provisions of section 509 of the Code of Criminal Procedure the evidence of the medical man in the Committing Court cannot be received as evidence in the Sessions Court once the medical man is summoned to give evidence in that Court, and we are also clearly of the view that the observations of this Court in the cases cited above do not suggest that such a course is illegal. It seems that this Court has persistently tried to tell the Subordinate Courts that they ought not to take recourse to section 509 and thereby refrain from examining the medical man who is present, or is easily available, in the trial Court. This Court has discouraged the practice of substituting the evidence of the medical man as a witness in the trial Court by receiving into the Sessions Court such evidence as was given in the Committing Court. But that is far from saying that the reception of such evidence is not legally permissible. We, therefore, hold that there is no substance in this point urged by the learned Advocate for the appellants. We shall now take up the next point, namely, that the witnesses in this case are not worthy of credit. The main evidence in this case comes from the complainant Dhalu Mridha (P. W. 1), P. W. 3 Makram Ali Chowkidar, P. W. 4 Manchan Ali, P. W. 5 Eshaque Ali Chowkidar and P. W. 7 Mosabbar Chowkidar. P. W. 6 Akabar Chowkidar was tendered as a witness but neither examined nor cross‑examined in this case. This exhausts all the material witnesses who have been examined on behalf of the prosecution. With regard to the evidence of the aforesaid witnesses, other than that of P. W. 1 Dhalu Mridha, learned Additional Sessions Judge felt the difficulty that all of them had not stated before the investigating officer the material particulars of their evidence as given in the trial Court. Learned Additional Sessions Judge has made a sweeping observation to the effect that the investigating officer in this case did not record the statements of the witnesses as stated by them. If the statements made by these witnesses have been correctly recorded by the inves tigating officer, then there is no escape from the conclusion that none of them are worthy of credit inasmuch as they failed to make any statement to the investigating officer in regard to the most material and vital points of their evidence in this case. We have ourselves examined the case diary in this case with a view to find out whether there was any substance in the remarks made by the learned Additional Sessions Judge against the investigating officer. Section 162 of the Code of Criminal Procedure gives the accused' a valuable right to contradict the prosecution witnesses with reference to the statements made by them to the investigating officer and which were recorded under the provisions of section 161 of the said Code and Courts should not lightly deprive the accused of the benefit of cross‑examination with reference to statements recorded under section 161 of the said Code. From a perusal of the case diary in this case, the view that we take is that the learned Additional Sessions Judge was not justified in holding that the statements of the witnesses were not correctly recorded by the investigating officer. Mr. Abdul Hye, learned Deputy Legal Remembrancer, has also frankly conceded that he cannot support the observations of the learned Additional Sessions Judge against the investigating officer. It Is also evident that on behalf of the prosecution there was no allegation that the investigating officer had not correctly recorded the statements made to him by the witnesses in this case. In these circumstances, it is impossible for us to hold that the investigating officer mis- recorded the statements of the said witnesses. The result, therefore, is, that having regard to the wholesale omission to state before the investigating officer the most vital points of the evidence given by these witnesses in the trial Court, for example, as to whether the complainant Dhalu Mridha stated the names of the assailants soon after the occurrence and also whether they had themselves seen the appellants or some of them, we cannot place any reliance on their evidence in the trial Court. Thus by a process of elimination we are left with the evidence of only P. W. 1 Dhalu Mridha. Mr. Hye has submitted that this witness is substantially corroborated by the first information report, which he had lodged at the police station. We consider it most unsafe to base the conviction of the appellants on the sole testimony of this witness, particularly, because it appears doubtful whether he had stated the names of the appellants in the first instance as soon as the other witnesses had arrived at the place r of occurrence soon after the alarm that was set up by him. It is interesting to note that P. W. 1 Dhalu Mridha in his evidence in the trial Court has stated that he did not name the appellants to the witnesses who came to the place of occurrence because he was not in possession of his consciousness due to the severe) injuries that he had received. In the Committing Court, however, be has stated that he named the appellants to the witnesses after the occurrence. It also Transpires that the other witnesses have been contradicted on this point with reference to the statements that they had made to the investigating officer. The investigating officer has stated that none of the said witnesses had stated to him that P. W. I Dhalu Mridha had named the appellants soon after the occur rence when the witnesses had arrived at the spot. Furthermore P. W. I Dhalu Mridha himself has omitted to say so in the first Information report lodged by him. When we consider the aforesaid circumstances in the background of the case, namely, that there are two factions in the village and some of the witnesses on behalf of the appellants as well as most of the appellants belong to one party or other. For the aforesaid reasons, we do not think that it would be safe to base the conviction of the appellants on the evidence of P. W. I Dhalu Mridha alone. The result, therefore, is, that we allow this appeal and set aside the conviction of the appellants and the sentences pro nounced on them. It is directed that the appellants be discharged from the bail bonds furnished by them. It appears that appellants Tazem alias Tajem Ali and Dhalu Molla are still in jail. If so, we direct that they be set at liberty forthwith, if not wanted in any other connection. We issued a suo mote Rule calling upon the District Magis trate of Bakerganj as well as the appellants to show cause as to why the sentences imposed on the appellants should not be enhanced, because we had felt that, if the charges against the appellants were brought home against them, the punishment imposed on them was insufficient. However, in view of our findings recorded above, we discharge the Rule. SIDDIKY, J.‑I agree. S. B. Appeal allowed.