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PETITIONER: ASHOK KUMAR

       Vs.

RESPONDENT: STATE (DELHI ADMINISTRATION)

DATE OF JUDGMENT07/03/1977

BENCH: GOSWAMI, P.K. 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.

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           (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-

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       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

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                     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-

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       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