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MEDICAL EVIDENCE                                                      15

opinions are held, may be proved in court "by the production of such treatise
if the author is dead, or cannot be found, or has become incapable of giving
evidence, or cannot be called as a witness without an amount of delay or
expense which the court regards as unreasonable (section 60, I.E. Act, vide
Appendix II).

3.    Deposition of a Medical Witness taken in a Lower Court.—Under
section 509 of the Criminal Procedure Code  (vide Appendix HE), evidence
given by a medical witness in a lower court is accepted in a higher court,
provided it is recorded and attested by a Magistrate in the presence of the
accused, and a certificate signed at the bottom of the deposition in the follow-

• ing form: " The foregoing deposition was taken in the presence of the
accused, who had an opportunity of cross-examining the witness. The
deposition was explained to the accused and was attested by me in the pre-
sence of the accused.7' His evidence without this certificate is not accepted
in a higher court; hence the medical witness should himself see that the
above certificate is written by the Magistrate at the foot of his deposition,
specially in those cases which are likely to be sent up for trial before a
Court of Session, if he wants to avoid the trouble of being summoned there.
He is, however, liable to be summoned in the case in which his deposition
taken by the Magistrate is essentially deficient or requires further explana-
tion or elucidation. It must also be noted that after he has given evidence
in the Presidency Magistrate's Court, Bombay, in those cases which are
triable before the Criminal Sessions of the High Court, the medical witness
is required to sign an undertaking to appear before the High Court when

4.    Chemical Examiner's Report.—Section 510 of the Code of Criminal
Procedure (vide Appendix III) provides that a report signed by any Chemical
Examiner or Assistant Chemical Examiner to Government upon any matter
or thing duly submitted to him for examination or analysis and report may
be admitted in  evidence  without requiring  the  officer concerned to be
examined in court to prove the report.   In connection with the rule of
evidence embodied in this section a bench of the Oudh, Chief Court, consist-
ing of Chief Justice Sir Wazir Hasan and Mr. Justice B. N. Srivastava, made
the following observations in the case of K. E. v. Mst. Gaya Kunwar charged
under section 302 of the Indian Penal Code with murdering her husband,
Lalta Singh, by administering arsenic to him13 : —

" We regret to note that what the law intended to "be done as a matter of
discretion, has been used almost as a general rule according to the practice
obtaining-in this province. It is to be expected that whenever a Magistrate
or a Court of Sessions finds that the report of the Chemical Examiner is
inadequate, they should not admit it in evidence unless the officer concerned
submits a full and satisfactory report or he has been examined in support
of it."                       -                                                                           ^

5.    Evidence given by a Witness in a Previous Judicial Proceeding.__

Under section 33 of the Indian Evidence Act (vide Appendix II), evidence
given by a witness in a previous judicial proceeding or before any person
authorized by law to take it is admissible as evidence in a subsequent judicial
proceeding or in a later stage of the same judicial proceeding, when the
witness is dead or cannot be found or is incapable of giving evidence, or is
kept out of the way by the adverse party, or if his presence cannot be
obtained without an amount of delay or expense which, tinder the Cir-
cumstances of the case, the court considers unreasonable, provided
adverse party in the first proceeding was afforded an opportunity 1
examine him.

13.   Leader, Nov. 18, 1933, p, 6; also vide K. E. v. Happu   (A.LR.
Crimmol Law Journal, 1935, p. 17.