10 MEDICAL JURISPRUDENCE
case 4 of K. E. v. Ram Narain Sharma, it was held that " in a warrant case
ordinarily it is the Government that may pay the expenses of the witnesses
both for the crown and the defence, and therefore it is the duty of the
Magistrate to fix the fees of the witnesses. He cannot leave to the parties to
negotiate with the witnesses and fix the fees, even in the case of experts.
If an expert witness on payment of a reasonable fee fixed by the Magistrate
declines to give evidence the Magistrate can compel him to do so ". The
Government have not laid down a definite scale of fees payable to medical
practitioners for attending to give professional evidence in criminal prosecu-
tions, although in framing the rules under section 544, Criminal Procedure
Code, for the payment of the expenses to the witnesses attending before any
criminal court, they have laid down that " witnesses following any profession,
such as medicine or law, shall receive a special allowance according to
circumstances and custom ". It is customary to pay the usual fee of sixteen
rupees to a Civil Surgeon and ten rupees to a member of the Provincial
Medical Service in charge of a dispensary for giving evidence in a Magis-
trate's court as expert witnesses in summons cases under section 244(3) of
the Criminal Procedure Code and for the defence in warrant cases under
section 257(2) of the Criminal Procedure Code. When summoned to give
evidence in warrant cases medical officers in Government service are not
entitled to their fees as experts, but are usually paid two rupees as travelling
expenses if they are employed in the town where the court is held.
When summoned on the same day to attend at two courts, civil and
criminal; the medical witness should attend at the criminal court, and inform
the civil court of his inability to do so on account of his presence in the
criminal court, which has preference over it. If summoned to two courts,.
both civil or criminal, the witness should first attend at the higher court.
If, however, both courts happen to be of the same status, he should go to
the court from where he received the summons first, and inform the other
court of the fact, or should attend there after he has done with the first court.
Oath..On being called into the witness-box the witness has to take the
oath before he gives his evidence. It may be noted here that the medical
witness, if he happens to be a gazetted officer, has not to stand in the witness-
box, but is usually offered a chair on the dais by the side of the presiding
officer. As a rule he is shown special consideration, as the nature of his
duties is such that he is not kept in attendance in the court longer than
necessary, and his evidence is often interposed out of its turn, so that he is
released at the earliest moment.
A Christian in taking the oath has to kiss the " book ", but this is not
right from a hygienic point of view and he would be well advised to insist^
on taking it after the Scotch form, raising his right hand above his head
and saying in a firm and loud tone :" I swear by Almighty God, as I shall
answer to God at the great Day of Judgment, that I will tell the truth, the
whole truth, and nothing but the truth." A non-Christian in taking the oath
has to repeat, while standing, " the evidence which I shall give to the court
shall be the truth, the whole truth, and nothing but the truth. So help me
God." If a witness wishes to give his evidence on solemn affirmation, he has
to say " I solemnly affirm that the evidence which I shall give to the court
shall be the truth, the whole truth, and nothing but the truth."
In whatever form the oath is taken it renders the witness liable to be
prosecuted for perjury under section 193 of the Indian Penal Code (vide
Appendix IV), if he fails to state what he knows or believes to be true. His
evidence is then recorded in the following manner:
4. 33 Criminal Law Jour,, Nov. 1932, p. 761; also vide 38 Crim. Law Jour.. 1937 p 133
(Lahore High Court Crim, Rev. Pet, No. 521 of 1936, K. E, v. Purshottam Das).