ASHOK KUMAR

STATE (DELHI ADMINISTRATION)

March 7, 1977

[P. K. GOSWAMI AND P. S. KAILASAM, JJ.]

Code of Cri1ninal Procedttrc,-S. 288-Scope of-Evide11ce of recortled in commiuing court-./f could be transferred to Session 5ubstantire evidence.

witnesses Co1irts-If

The appellant \Vas convicted under s. 302/ 34, Indian Penal Code and

enlenced. Statements of two witnesses recorded in the commilting ourt

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 lligh Court accepted the testimony of the \Vitnesses before the comn1itting C Cowt.

In appeal it was contended that the statements of \Vitnesses in the comn1itting court transferred under s. 288 \Vere inadmissible in evidence and should not be acted upon, since no specific portion of their contradictory ta1en1ents hdd been put to ther11 in cross-examination.

Disn1issing the appeal, D HELD : There is no legal inflrn1ity about the transfer of deposition of the witnesses to the record of the Sessions Court under S: 288 Cr. P.C.

It \\'as a legitimate use of discretion by the Sessions Judge.

Evidenru recorded iil the committing court is substantive evidence in this case and is adn1issible. [147 E-El

Section 288 Cr. P .C. which provides for transfer of evidence n:col"ded in the committing court under certain circumstances is subject inter alia to the E provisions of s. 145 of the Evidence Act.

Provisions of the latter a~;:tion have been substantially complied \Vith in this case.

[147 F]

in the instant case after dra\vinc; the attention of the witnesses to their contradictory statements recorded by the police, the statements recorded hy the committing fagistrate \Vere read out to the witnesses \Vho did not deny ro have n1ade then1 but' only explained that they had deposed in that n1anner under threat and prcsstFe from the police.

[147 D]

CRJ:\II>:AL APPELLATE JURiso1cnoN : Criminal Appeal No. 246 of 1976.

(Appeal by Special Leave from the Judgment and Order dated 5-12-1975 of the Delhi mgh Court in Criminal Appeal No. 1 ll of 1974 ).

R. L. Ko/; li and R. C. Kohli, for the appellant.

G. L. Sanghi and M. N. Shroff, for the respondent.

The Judgment of he 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 seetion 302 /34, Indian Penal Code and sentence of imprisonment for life. ' '

Ashok Kumar aged about 17 years and his younger brother, Vijay Kumar, below the age of 16 years were chargesheeted for an offence under section 302/34 IPC for causing the death of Rajindcr 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 had of Rajinder Kumar while his younger brother stood behind him in front of the gate of Mor Sarai.

Having seen this he walked qu'ckly and when he was at a distance of four or fhe paces from them he heard Ashok Kumar and his brother, Vijay Kumar. telling Rajinder Kumar that they would avenge the kidnapping of thei•r 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 O\"erpowered.

They then gave several blows on the back of his 1raist, 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 Ra jinder Kumar in it to the Irwin Hospital where he was examined by Dr. U. Kaul (PW 12) who found the following injuries on his person:-

l. Stab wound 4" x 2" left inter scapular region with surrounding surgital emphysema.

2. Stab left lumber region 2" x 2".

3. Stab left thigh 'l!' x l".

4. Stab left cheek 'l!' 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

ASHOK KUMAR v. STATE (DELHI ADMN.) (Goswami, J.) 145

14) made an entry in the daily diary about the report received from the Irwin Hospitai.

He sent a copy of this report to S. I. Dewan Singh (PW 20) who proceeded to the Ho.spital.

When PW 20 arrived Rajinder Kumar was not in a pos1hon to make a statement and he recorded the statement of Hukam Chand (Ex. PW 1 I A) at about 8.40 P.M. which is the first information report registered under section 307 /34 JPC.

According to the Doctor the punctured injury at the left intr scapular region was sufficient to cause his death ln the ordinary <:ourse 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 assailants.

The first information report also disclosed 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 ma.de a statement before Inspector Sardar Singh, Station Houe Officer.

P. S. Kotwali. Delhi (PW 21) in pursuance of which on May 28. 1973, a blood stained knife (Ex. P-7) was recovered. Evi•dencc 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, continued to ell his mebncholy story. PWs 3 and 4 did not support the prosecution and were accordingly declared hostile.

It was shown in the course of their cross-examination that they had earlier during the investigation n1ade 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 k111fc.

P.W. 2. Mohar Singh. was not examined before the committing court

~ .

The acus'.:d denied the charge and stated that he was arrested by the poltce m Agra on May 24, 1973, and not on the following day t. Jat Dhaamshala as alleged by the prosecution.

After eammmg. the evidence of the defence witnesses as well as the station diary entries about the .deprture of the Head Constable. Manohar Lal and Constab.le Bal~r Singh, to outside districts the Sessions Judge held that It was not at all improbable" that the two policemen accompanfod by Jai Bhawan went to Agra and brought the

acused from there. The Sessions Judge also did not rely upon the disclosure stateent mad~ b~ the accused and also ignored the recovery of the kmfe as bemg m pursuance of that disclosure statement.

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 I) 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 testimony of PW I Hukam Chand.

This evidence treated as substantive evidence under section 288 Cr. P. C. taken into consideration with the testimony of PW l 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 I 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 th.e report.

This is a strong circumstance in favour of the prosecution in this case".

The High Court, as stated earlier, confirmed the conviction by accepting the testimony of Hukam Chand as well as the statements made by PWs 3 and 4 before the committing court in wh;'Ch 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-exam;•ned these witnesses is of no consequence.

Apart from that during the Sessions trial their explanation was that they had made the statements before the committing court under the the.eat 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 I mentioned, therein, at three places about the presence of Mohar Singh (PW 2) who was not even exam:•ned before the committing court.

Since PW 2 denied having seen the occurrence, his evidence is of no assistance and the fact that he was contradicted by his previous statement made before the police only dubs him as an nnreliable witness.

ASHOK KUMAR v. STATE (DELHI ;.DMN.) (Goswami, J.) 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 occmrence 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 (Hukarii 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 s;•ngh

(PW 4).

The om;•; sion of the names of PWs 3 and 4 in the first information report lodged at 8.45 P.M. cannot, therefore, 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 transferred under section 288, Crimi'nal Procedure Code, is inadmissible and should riot be acted upon, since no specific portion of their contradictory statements had been put to them in the course o! their cross-examination by the public prosecutor.

We find that after drawing the attention of these two witnesses to their contradictory statements recorded by the police with regard to t:'Jeir having seen the assault which they denied, the entire respective statements 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 ~-ecorded 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.

Raji'D.der 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 c, ourt to have seen the occurrence.

He had been examined in the commitfrng 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.

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 I.he recovery of the knife nd 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.

W c agree with the Sessions Judge that it was unusual for the police to delay recovery of the blood-stained knife i•n 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 C interfere with the conviction in thi~ case.

In the result the appeal is dismissed.

P.B.R.

Appeal dismissed.