EMPEROR Vs. RAGHOO GANPAT

JUDGEMENT

(1.) The learned Counsel for the Crown asks leave of the Court to treat the third prosecution witness, Anusuyabai, as a hostile witness, and to be allowed to cross-examine her by putting in a certain statement of the witness before the Coroner on January 28, 1926, at his inquest on the death of the accused's child. For permission to treat her as a hostile witness he relies, firstly, on the fact that she is related by marriage to the accused and lives with him as one of the family and, secondly, that as to who killed the child, she has in this Court, made a statement far more favourable to the accused than her statement before the Coroner.

(2.) The learned Counsel for the defence-objects on the ground that, on the whole, her evidence is not shown to be so favourable to the accused as to entitle the Crown to treat her as a hostile witness. The second ground is that the proceedings before the Coroner are not judicial proceedings in the same sense as the proceedings before the committing Magistrate with the safeguard that the accused is present and has opportunity to cross-examine. Under Section 8 of the Coroners Act IV of 1871, the Coroner's enquiry is a judicial proceeding within the meaning of Section 193 of the Indian Penal Code. Under Secs.19 and 20, witnesses must be sworn and their statements must be reduced to writing. Under Secs.145 and : 155 of the Indian Evidence Act, it is not; necessary, in order to make the previous; statements admissible for the purpose of; impugning the credit of a witness, that's the accused should have an opportunity to cross-examine.

(3.) In the present case there is no question that the two statements differ one very essential point an all important point as to whether the witness did or did not see the accused himself as the person who kicked the deceased child. But in this case, as there is a relationship between the witness and the accused, the Crown is, in my opinion, entitled to obtain the leave sought to cross-examine. On the question of the admissibility, as I have already said before, the statement is admissible under the Indian Evidence Act, and it will be for the jury, after they have both statements before them, to appraise and weigh each. I allow the contention of the Crown and give leave to the witness Anusuyabai being cross-examined on her statement and hold that her statement before the Coroner is admissible.