Ranawat, J.—The following question has been referred to this Bench : "Whether the deposition of a medical witness taken and attested by a Magistrate in the presence of the accused may be given in evidence at the trial in spite of the fact that the deponent had been called as a witness before the statement is tendered in evidence ? 2. Sec. 509 Cr.P.C. 1ays down the rule that "the deposition of a civil surgeon or other medical witness taken and attested by a Magistrate in the presence of the accused, or taken on commission under Chapter XL, may be given in evidence in any inquiry, trial or other proceeding under this Code, although the deponent is not called as a witness." There has been some conflict of opinion on the meaning of sec. 509 on the question whether a deposition as mentioned in sec. 509 can be admitted into evidence when the dependent is also called as a witness. In Rangappa Goundan vs. Emperor (1) Cornish J. observe as follows:

"Sec. 509, Criminal P.C. is not intended to be applied where the medical witness is present in court".

In that case the medical witness was summoned and he appeared before the court at the trial. He was produced only for cross-examination of the ac

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