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
RL Kohli and RC Kohli for the appellant
GL Sanghi and MN 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 30234 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 30234 IPC for causing the death of Rajinder Kumar aged about 23 years
Vijay Kumar was sent for trial under the  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 HC 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
Stab left lumber region 2 x 2
Stab left thigh 2 x 1
Stab left cheek 2 x 2
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 SI 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 exhibit PW 1A at about 840 PM which is the first information report registered under section 30734 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 1135 PM 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 PS Kotwali Delhi PW 21 in pursuance of which on May 28 1973 a blood stained knife exhibit 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
PW 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
PC I find abundant corroboration thereof in the testimo ny of PW 1 Hukam Chand
This evidence treated as substantive evidence under section 288 Cr
PC 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 SI Diwan Singh PW 20 went to the place of occurrence with PW 1 Hukarn Chand at about 945 PM 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 845 PM 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
PBR Appeal dismissed


Summary:
The appellant was convicted under section 30234 Indian Penal Code and sentenced
Statements of two witnesses recorded in the committing court were transferred to the record during trial under section 288 Cr
PC 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 section 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 section 288 Cr
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
PC 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
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