PETITIONER:
ASHOK KUMAR
Vs.
RESPONDENT:
STATE (DELHI ADMINISTRATION)
DATE OF JUDGMENT07/03/1977
BENCH:
GOSWAMI, P.K.
KAILASAM, P.S.
CITATION:
1977 AIR 1304 1977 SCR (3) 143
1977 SCC (2) 233
ACT
Code of Criminal Procedure,--S. 288--Scope of--Evidence
of witnesses recorded in committing court---If could be
transferred to Session Courts-If substantive evidence.
HEADNOTE
The appellant was convicted under s. 302/34, Indian
Penal Code and sentenced. Statements of two witnesses
recorded in the committing court were transferred to the
record during trial under s. 288 Cr. P.C. and the trial
court treated the evidence of these witnesses as substantive
evidence. The High Court accepted the testimony of the
witnesses before the committing Court.
In appeal it was contended that the statements of wit-
nesses in the committing court transferred under s. 288 were
inadmissible in evidence and should not be acted upon, since
no specific portion of their contradictory statements had
been put to them in cross-examination.
Dismissing the appeal,
HELD: There is no legal infirmity about the transfer of
deposition of the witnesses to the record of the Sessions
Court under s. 288 Cr. P.C. It was a legitimate use of
discretion by the Sessions Judge. Evidence recorded in the
committing court is substantive evidence in this case and is
admissible. [147 E-F]
Section 288 Cr. P.C. which provides for transfer of
evidence recorded in the committing court under certain
circumstances is subject inter alia to the provisions of s.
145 of the Evidence Act. Provisions of the latter section
have been substantially complied with in this case. [147 E]
In the instant case after drawing the attention of the
witnesses to their contradictory statements recorded by the
police, the statements recorded by the committing Magistrate
were read out to the witnesses who did not deny have made
them but only explained that they had deposed in that manner
under threat and pressure from the police. [147 D]
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal NO 246
of 1976.
(Appeal by Special Leave from the Judgment and Order
dated 5-12-1975 of the Delhi High Court in Criminal Appeal
No. 111 of 1974).
R.L. Kohli and R.C. Kohli, for the appellant.
G.L. Sanghi and M.N. Shroff, for the respondent.
The Judgment of the Court was delivered by
GOSWAMI, J.--This appeal by special leave is directed
against the judgment of the Delhi High Court confirming the
conviction of the appellant under section 302/34, Indian
Penal Code, and sentence of imprisonment for life.
144
Ashok Kumar aged about 17 years and his younger
brother, Vijay Kumar, below the age of 16 years were charge-
sheeted for an offence under section 302/34 IPC for causing
the death of Rajinder Kumar aged about 23 years. Vijay
Kumar was sent for trial under the Children Act,. 1960, and
is not, therefore, before us.
In June 1971 Jai Bhagwan, father of the accused, had
complained to the police against the deceased, Rajinder
Kumar, alleging that he had kidnapped his daughter, Saroj
Kumari. It is said that Saroj Kumari was recovered from
the company of Rajinder Kumar at Ahmedabad and Rajinder
Kumar was charged for offences under sections 366 and 376,
Indian Penal Code, and the case was pending on the date of
occurrence.
The prosecution case is that on May 22, 1973, Hukum
Chand (PW 1), father of the deceased, Rajinder Kumar, was
coming back from the Fountain in Chandni Chowk on H.C. Road
and took a turn towards right leading to Mor Sarai when. he
saw the accused, Ashok Kumar, and his brother, Vijay Kumar,
having surrounded his son Rajinder Kumar. He also saw that
Ashok Kumar caught hold of the hand of Rajinder Kumar while
his younger brother stood behind him in front of the gate
of Mor Sarai. Having seen this he walked quickly and when
he was at a distance of four or five paces from them he
heard Ashok Kumar and his brother, Vijay Kumar. telling
Rajinder Kumar that they would avenge the kidnapping of
their sister no matter whether the court might punish him or
not. Hukam Chand then saw both the brothers taking out their
knives. Accused Ashok Kumar struck a blow on the left cheek
of Rajinder Kumar. Vijay Kumar struck one blow on Rajinder
Kumar which was warded off by him as a result of which his
right forearm was struck by the knife on the back of his
palm. Rajinder Kumar tried to run away but was pursued by
the two brothers and was overpowered. They then gave
several blows on the back of his waist, on left abdomen and
on the right thigh. As a result of these blows Rajinder
Kumar fell down on the footpath on the side of the quarters
of Mor Sarai. Accused Ashok Kumar ran away towards the
station along with his brother. Hukam Chand sent for a taxi
and took Rajinder Kumar in it to the Irwin Hospital where
he was examined by Dr. U. Kaul (PW 12) who found the follow-
ing injuries on his person :--
1. Stab wound 4" x 2" left inter scapular
region with surrounding surgical emphysema.
2. Stab left lumber region 2" x 2".
3. Stab left thigh 2" x 1".
4. Stab left cheek 2" x 2".
5. Stab left hand 4" x 1" on the dorsum.
Constable, Vijay Kumar, (PW 7) who was on duty at the
Irwin Hospital informed the Police Station, Kotwali, about
the admission of Rajinder Kumar in the Hospital. Constable,
Ram Saran (PW
145
14) made an entry in the daily diary about the report re-
ceived from the irwin Hospital. He sent a copy of this
report to S.I. Dewan Singh (PW 20) who proceeded to the
Hospital. When PW 20 arrived. Rajinder Kumar was not in a
position to make a statement and he recorded the statement
of Hukam Chand (Ex. PW 1/A) at about 8.40 P.M. which is the
first information report registered under section 307/34
IPC. According to the Doctor the punctured injury at the
left inter scapular region was sufficient to cause his death
in the ordinary course of nature. On the death of Rajinder
Kumar at 11.35 P.M., the same night, the section under which
the case was registered was altered to section 302 IPC and
investigation proceeded accordingly. Names of Ashok Kumar
and Vijay Kumar appeared in the first information report, as
the assailams. The first information report also dis-
closed that there was another person, Mohar ’Singh (PW 2)
with Hukam .Chand. The accused, Ashok Kumar, was arrested
on May 25, 1973, near Jat Dharamshala in Jamuna Bazar. It
is said that on the following day Ashok Kumar made a state-
ment before Inspector Sardar Singh, Station House Offi-
cer, P.S. Kotwali, Delhi (PW 21) in pursuance of which on
May 28, 1973, a blood stained knife (Ex. P-7) was recov-
ered. Evidence was also led by the prosecution to prove
recovery of a shirt and pantaloons having stains of blood
although these had already been washed from the person of
the accused, Ashok Kumar, when he was arrested on May 25,
1973. The serological report showed the origin of these
stains as human blood. At the trial not only Hukam Chand
gave evidence as an eye witness, but Mohar Singh (PW 2),
Rajinder Kumar Jain (PW 3) and Puran Singh (PW 4) were also
produced as eye witnesses. While PW 1, Hukam Chand, contin-
ued to tell his melancholy story, PWs 3 and 4 did not sup-
port the prosecution and were accordingly declared hostile.
It was shown in the course of their cross-examination that
they had earlier during the investigation made statements
as eye witnesses to the occurrence. The statements of PWs
3 and 4 which were recorded in the committing court were
transferred to the record during the trial under section
288, Criminal Procedure’ Code. In the committing court
these witnesses had stated that they had seen the accused
assaulting the deceased with a knife. P.W. 2, Mohar Singh,
was not examined before the committing court.
The accused denied the charge and stated that he was arrest-
ed by the police in Agra on May 24, 1973, and not on the
following day at Jat Dhararashala as alleged by the
prosecution. After examining the evidence of the defence
witnesses as well as the station diary entries about the
departure of the Head Constable. Manohar Lal and Constable
Balbir Singh, to outside districts the Sessions Judge held
that it was "not at all improbable" that the two policemen
accompanied by Jai Bhagwan went to Agra and brought the
accused from there. The Sessions Judge also did not rely
upon the disclosure statement made by the accused and also
ignored the recovery of the knife as being in pursuance of
that disclosure statement.
146
The Sessions Judge observed that it was very unusual in a
murder case that recovery of the offending weapon was so
belated.
The trial court convicted the accused on the testimony
of Hukam Chand (PW 1) and accepted the evidence of PWs 3 and
4 recorded in the committing court. Referring to PWs 3 and
4, the trial court observed as follows :--
"I treat the evidence of PW 3 Rajinder
Kumar Jain and PW 4 Puran as substantive
evidence under section 288 Cr. P.C. I find
abundant corroboration thereof in the testimo-
ny of PW 1 Hukam Chand. This evidence
treated as substantive evidence under section
288 Cr. P.C. taken into consideration with the
testimony of PW 1 Hukam Chand provides a
complete picture by ocular evidence of what
happened to the victim Rajinder Kumar on that
fateful evening at the hands of Ashok accused
and his brother Vijay. I accept this part of
the testimony".
With regard to the evidence of PW 1 the trial court observed
as follows :--
"In the case before me Hukam Chand is
a father of the deceased. He admits the
enmity on the part of the accused towards
the deceased. He mentioned the name of the
accused in the FIR and gave complete sequence
of events. He did not lose any time. He had
no time to manufacture things so as to be
incorporated in the report. This is a strong
circumstance in favour of the prosecution in
this case".
The High Court, as stated earlier, confirmed the convic-
tion by accepting the testimony of Hukam Chand as well as
the statements made by PWs 3 and 4 before the committing
court in which they had clearly supported the prosecution
case.
Since the accused had opportunity to cross examine
the PWs 3 and 4 in the committing court the fact that he had
not actually cross-examined these witnesses is of no conse-
quence. Apart from that during the Sessions trial their
explanation was that they had made the statements before the
committing court under the threat of the police. This
explanation had been rejected by both the courts.
Mr. Kohli submits that PWs 3 and 4 were not mentioned in
the first information report although PW 1 mentioned,.
therein, at threeplaces about the presence of Mohar Singh
(PW 2) who was not even examined before the committing
court. Since PW 2 denied having seen the occurrence, his
evidence is of no assistance and the fact that he was con-
tradicted by his previous statement made before the
police only dubs him as an unreliable witness.
147
So far as PWs 3 and 4 are concerned, we do not see
much force in the contention that their names were not
mentioned in the first information report. It is possible
that even if they had seen the occurence from some other
point, PW 1 hastening away to the Hospital might not have,
noticed them. Besides, when S.I. Diwan Singh (PW 20) went
to the place of occurrence with PW 1 (Hukarn Chand) at about
9.45 P.M. the same night he found a large crowd there. PW 20
stated that he recorded at that time the statements of Mohar
Singh (PW 2), Rajinder Kumar Jain (PW 3) and Puran Singh
(PW 4). The omission of the names of PWs 3 and 4 in the
first information report lodged at 8.45 P.M. cannot, there-
fore, be of much significance to reject their testimony on
that score.
Next, Mr. Kohli submits that the statements
of PWs 3 and 4 recorded in the committing court and trans-
ferred under section 288, Criminal Procedure Code, is inad-
missible and should not be acted upon, since no specific
portion of their contradictory statements had been put to
them in the course of their cross-examination by the public
prosecutor. We find that after drawing the attention of
these two witnesses to their contradictory statements re-
corded by the police with regard to their having seen the
assault which they denied, the entire respective state-
ments recorded by the committing magistrate in Hindi were
read out to the witness who did not deny to have made the
same but only explained that they had deposed in that manner
under threat and pressure from the police.
Section 288, Criminal Procedure Code, which provides
for transfer of evidence recorded in the committing court
under certain circumstances, is subject, inter alia, to the
provisions of section 145 of the Evidence Act, and the
provisions of the latter section have been substantially
complied with in this case. Under the circumstances there
is no legal infirmity about the transfer of the deposition
of the two witnesses to the record of the Sessions Court
under section 288, Criminal Procedure Code, and it was a
legitimate use of discretion by the Sessions Judge in
adopting this course. Their evidence recorded in the
committing court is substantive evidence in this case and
is clearly admissible.
Rajinder Kumar Jain (PW 3) had written an inland
letter which the Inspector General of Police received on
January 18, 1974, complaining about the police torture in
threatening him to give evidence in the court. He was
examined before the Sessions Judge on January 19, 1974, when
he, for the first time, denied in court to have seen the
occurrence. He had been examined in the committing court on
November 21, 1973, about six months after the occurrence
when he had made no complaint about police torture and gave
evidence as an eye witness to the occurrence. The trial
court was, therefore perfectly justified in not accepting
the belated explanation of PWs 3 and 4 about police threat
under which alone they stated that they had supported the
prosecution case.
148
Although the High Court was not prepared to accept the
defence case about the arrest of the accused in Agra, it is
not necessary to pursue the matter further. It is also not
necessary to deal with .the recovery of the knife and the
blood stained clothes about which the High Court was not
prepared to accept the reasons given by the Sessions Judge
for discarding that evidence. We agree with the Sessions
Judge that it was unusual for the police to delay recovery
of the blood-stained knife in a murder case. But since
the two courts have relied upon the evidence of the three
eye witnesses, it is not necessary to consider whether the
High Court was right in differing from the views of the
trial court in the matter of the recovery of the knife and
the clothes.
After having perused the entire evidence, we see no reason
to interfere with the conviction in this case. In the result
the appeal is dismissed.
P.B.R. Appeal dismissed.
149