Full Judgment
Wilson, J.
1. Is there any authority for saying that admissions and confessions are one and the same
2. Mr. Gasper. There is the case of Empress v. Pandharinath 6 B. 34, which lays down that a statement made to a Police officer, although made in self exculpation, may still be an admission of a criminating circumstance, and thus a confession and inadmissible under Sections 25 and 26.
Wilson, J.
3. That case fallsrfar short of holding that admissions and confessions are the same thing.]
4. Mr. Gasper.--Another case bearing on the question is that of The Queen, v. Hurribole Ghunder Ghose 1 C. 207, and the precise nature of the statement in that case is to be found in Hume's Criminal Digest, page 310. There is also the case of Queen v. Macdonald Unreported See 10 B.L.R. Appx. 2. referred to in that case. The real question here is, does the statement contain an admission of a material face necessary for the prosecution to prove or material for them to prove If it does then, it amounts to a confession and is inadmissible, and I contend that the statements I object to fall within that category, and should not therefore be admitted.
5. Mr. Pugh in raply.--There is no authority for Mr. Gasper's proposition ; a confession is an admission of guilt and not a statement made with the sole object of exculpating the maker, or, to use the words of Mr. Justice Stephen, 'a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that ha committed that crime.' See Queen-Empress v. Babu Lal 6 A. 509 (539).
6. Wilson, J. (having taken time till the following morning to consider the question).--I have come to the conclusion that evidence can be given as to what Torab said when he made over the paper to the Police, but that evidence of the other statements sought to be proved cannot be given.
7. During the trial Dr. Mackenzie, the Police Surgeon, was called to give evidence as to the cause of death, and in the course of his evidence he stated the various marks and indications he found when making the post mortem examination, and gave it as his opinion that death was due to asphyxia caused by strangulation. This opinion was challenged by counsel for the defence, and Dr. Mackenzie was cross-examined to show that death had not been caused as alleged. Subsequently the prosecution called another witness, Dr. Maclecd, who had not been present at the post mortem and had not been called before the Magistrate, nor had be had anything to do with the case, the defence having been previously furnished with a statement of what Dr. Macleod was called to prove.
8. Upon Dr. Macleod being put in the box, the appearance of the body as spoken to by Dr. Mackenzie, together with the signs spoken to by him as having been noticed by him when making the post mortem examination, were put to him, and he was asked ' upon these facts what in your opinion would be the cause of death.'
9. Mr. Gasper objected to the question.
10. Mr. Gasper.--This question cannot be put. Such a question is only admissible when the facts are admitted, and the question is one relating purely to medical science. Here the facts are not admitted--R. v. Wright R. & R. Cr. Cas. 456 ; M'Naghten's case 10 Cl. & F. 200 (211).
Wilson, J.
11. In both those cases the question put to the witness involved the truth of the evidence. Those cases don't raise the precisa point that arises here. The only ease that I know of in this Court is Boghuni Singh v. The Empress 9 C. 455, and the point raised there is the precise point raised in this case.]
12. If the judgment in that case is carefully read it is in my favour, and besides this DC. Shaw was called by the Court, and under the Evidence Act the Court may pub any question to a witness. [598] There is no case in which a question of this sort has been put, and there is no instance of a .medical officer being called who has not; been present at apostil mortem and who is asked his opinion upon a disputed state of facts. Here we are governed by Section 45 of the Evidence Act, and in this case the only evidence Dr. Macleod can give is that of an expert, and he can only give his opinion on a pure question of science. The only question this witness can be asked is. what are the usual indications of death by strangulation, and not the question put.
13. Wilson, J. (after rising to consult one of his colleagues and without calling on Mr. Pugh).--I think the question can be put.