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 summoned. 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.